To The Editor
Regarding: The Value of Disclosing Medical Error

I write this in response to an article posted by ALICIA GALLEGOS, of American Medical News, posted June 1, 2011. I heartily support the Lockton Report analyzing the findings of Aug. 17, 2010, issue of Annals of Internal Medicine. Such disclosures are not only good business but are also required.

American Medical Association’s Code of Medical Ethics says physicians are ethically obligated to disclose what happened “when a patient suffers significant medical complications that may have resulted from a physician’s error.”

The attempt to cover up medical errors results in those involved eventually forgetting the fact that errors occurred. Instead of correcting the practices leading to harm all energy is expended in making it seem that nothing untoward occurred.

I am a trial attorney and have represented victims of malpractice for 34 years. I think it absurd that I have to speak for the victims because their doctors, nurses, etc. won’t.

Sincerely,

Jerry I. Meyers
Pittsburgh, Pa

Joe Kika writes at readersdigest.com a remarkable set of interviews of physicians and nurses confessing medical mistakes for the record which either could have or did lead to wrongful death.  Among those interviewed was Peter Pronovost, a professor at John’s Hopkins University School of Medicine, who has received considerable notoriety as a patient safety advocate.

Pronovost and his work at Hopkins was the subject of one of my prior posts.  In Pronovost’s interview he provides us considerable insight as to how his views concerning patient safety evolved.  We learn for example, that his father died because of medical errors at age 50.  Also, during his training in critical care medicine, he prematurely removed a breathing tube in a patient recovering from esophageal surgery performed earlier the same day. The patient arrested and though successfully resuscitated, remained unconscious for a time.  Pronovost admits that his shame at having made a very serious error prevented him from candidly explaining to the patient’s wife the reason for the arrest.

The medical culture of Pronovost’s early years remains today as a true impediment to patient safety.  The widespread refusals of physicians and other health care providers to admit their errors allows the errors to be repeated by others.

Ironically, today as I was writing this post, I visited Kevin MD.com and found a very interesting and compelling article authored by Brian Goldman (an emergency physician) addressing the issue of the culture of patient safety.  Goldman agrees that medical errors must be confessed in order for change to occur. He appears to reject the view shared by many advocates of tort reform the Dr.’s will not confess except in secret.

Confession is good for the soul and indispensable if a culture of patient safety is to be established.

ANEMONA HARTOCOLLIS in a recent New York Times article describes outrageous behavior by the clinical director and medical director of Harlem medical center. Under the direction of these former hospital officers (they have since been fired and demoted,  respectively) the cardiology department of the Medical Center permitted 4,000 echocardiograms performed on patients suffering from suspected cardiac problems to be read only by technicians. The tests supposed to be read by cardiologists were not submitted to any doctor for review. An investigation  conducted by physicians from another medical center suggests hundreds of these patients may have suffered serious harm as a consequence of inadequately skilled technicians reviewing these tests instead of cardiologists.  In an apparent cost cutting move, Harlem Medical Center had allowed their staff of cardiologists to be reduced. The cardiologists claimed the back log of echocardiograms requiring physician review accumulated at the rate of 2500 per year. The Harlem Medical Center cardiologists’ cries for additional staff went unheeded.  Harlem Medical Center continues to deny that any patient suffered harm.

Certainly patients who trusted the Harlem Medical Center  have been betrayed. Can anyone believe that similar problems are not occurring with some frequency elsewhere? The only real oversight is limited help that medical malpractice lawyers can provide victims after the fact.  And yet trial lawyers are besieged in the Legislature of most states and by members of the Congress who are blind and deaf to the pleas of victims  to not restrict the only tool available to most victims to uncover the truth and seek justice.

What do you think?

Natasha Singer, in her  recent New York’s Times opinion piece suggests that saying you’re sorry is difficult in the health care industry. Indeed, her article addresses the pharmaceutical industry as well.  It is interesting that this issue requires any discussion. We all learned as children the importance of apology in making right a harm resulting from our wrongful conduct. Moreover, that there might be adverse consequences associated with admitting wrongdoing was to be expected and was not ever deemed a justification for remaining silent.

It is remarkable that silence as a substitute for apology has become a standard of conduct for healthcare providers. They argue that if they apply to this that someone might try to hold them accountable for their conduct. In other words unlike what their parents  told them as children, healthcare providers, who once knew that apology was the ethical and proper thing to do have come to believe that silence and obfuscation represent the ethical thing to do.

Remarkably, as pointed out by Singer, those medical centers such as the University of Michigan health Center have discovered honest apology makes they are victims feel good and reduces malpractice claims. The Michigan experience has been duplicated elsewhere. Honesty is not only the right thing to do but also represents a sound business practice.

One has to look elsewhere for the origin of the “conspiracy of silence” than fear of consequence.  Arrogance is a better explanation.

What do you think?

In 1998 the United States Advisory Commission on Consumer Protection and Quality in the healthcare industry adopted a Patient Bill of Rights. The same year Pennsylvania enacted a Patient Bill of Rights allegedly for the purpose of providing quality healthcare accountability and protection under Act 68 of 1998.

It is interesting that the legislature of Pennsylvania elected to call the Act a Patient Bill of Rights. It in fact bears no similarity to what the founding fathers of this country called a Bill of Rights. First, it doesn’t apply to healthcare directly but rather regulates how managed care organizations such as HMOs interact with their insureds. Since the relationship between an insurance company and its insured is defined by contract, the few items regulated by the so-called Patient Bill of Rights in Pennsylvania and in other states where similar bills have been enacted do little to enhance patient safety. Indeed, one does not have a right if one lacks the power to secure enforcement of that right. Enforcements provisions under the typical “Patient Bill of Rights” is, for example, limited in the case of a patient being denied access to a particular procedure being paid that sum which the insurance company had refused to pay. There are no other penalties and no provision for a patient to be represented by anyone in the appeals process.

Patients who cannot seek enforcement of rights have no right and the rights I have discussed thus far are trivial compared to those rights which most would consider fundamental with respect to the provision of healthcare.

A patient certainly should have a right to receive medical care at a level consistent with the principals of practice accepted by accredited institutions of learning and certifying boards of medicine. Everyone feels more comfortable if they are being treated by a physician who has received appropriate training and especially if a physician has been certified by a specialty board of medicine. Physicians are certified only after having been examined usually both in writing and orally. During the course of these examinations, everyone accepts that there are answers which are right and answers which are wrong as in any test.

A patient might therefore assume that the care provided them by a board certified physician would be consistent with those principles of practice which are taught in medical schools and residency training programs and which are the subject of certifying exams. Regrettably, this is often not the case.

Any medical resident who performed an initial assessment of a patient at the beginning of a hospitalization without taking a comprehensive history from that patient would be reprimanded by their supervisor in training. Such a reprimand would depend upon the supervisor becoming aware that such an error was made.

Improper histories and inadequate physical examinations and, most importantly, failed diagnostic process occur with frequency in every healthcare setting and when such errors are made often patients suffer harm. Diagnoses are incorrectly made or made too late for effective treatment to be given.

It is widely acknowledged that this is so. In fact in November of 1999 the report of the Institute of Medicine entitled, “To Err is Human: Building A Safer Health System,” reported as many as 98,000 people die in hospitals each year as a result of medical errors.

Part of the current healthcare reform debate concerns now 10 years after the IOM report a continued search for how to make patients safer, no one currently believing that fewer people are dying today than were dying in 1999 as a result of medical errors.

It is therefore, I think, ironic that we hear news commentators talking about limiting patient’s rights to have legal advocates as a means of somehow making patients safer.

It defies common sense that drivers would operate vehicles more carefully if they were immunized in whole or in part from being held accountable for their carelessness. Patients who suffer severe and unexpected adverse consequences of a healthcare experience in the hospital or elsewhere cannot depend on their doctors, nurses or other healthcare providers to inform them honestly and openly of the causes of the unexpected consequences. It just doesn’t happen. A patient or a patient’s family must be free to consult with lawyers experienced in the management of medical malpractice claims. Such lawyers know how to readily and, usually at their own expense, obtain such information by family interviews or by examination of records as permit the lawyers to honestly advise a patient or their family of whether a bad outcome of medical care was preventable or should have been prevented. Lawyers through their research have access to the principles about which physicians are tested for certification and are taught in schools and through their residency training. Patients in fact have no other satisfactory means of obtaining such information.

In most hospitals, at the time of a patient’s admission, they will be informed of the existence of a bill of rights. They may even be given a paper enumerating these rights. Most hospitals now also have persons who they refer to as patient advocates. The hospital employee who is given the title “patient advocate” is truly powerless to obtain the information a patient requires to learn whether an unexpected injury or outcome was preventable or should have been prevented or not and if the advocate by chance believed the patient was mistreated and harmed as a result of carelessness, such a patient advocate wouldn’t have the power to do anything about it.

The function of a hospital employed patient advocate is to make patients feel better about the care they have received whether that care has harmed the patient or not. Independent patient advocates who have the power to conduct an investigation into the circumstances of a patient’s care and secure for the patient compensation for harms needlessly suffered do not exist outside of our legal system. Only lawyers have the power to be true patient advocates.

It is unfortunate that in so many states in our country rather than increasing patient rights and safety, there has been a relentless effort largely endorsed by medical societies and insurance companies to limit a patient’s access to legal representation or to limit the rights of a patient to be compensated when they have suffered needless harms. The imposition of such limitations is done under the title, “Tort Reform”.

Tort Reform advocates cause patients to believe that Tort Reform and patient safety are somehow related. Tort reformers have many justifications that they give for why reform is needed. They will talk about frivolous lawsuits but they don’t talk about the fact that most tort reform measures limit patients who have been seriously injured by clear carelessness from being compensated for their injuries. Patients will never be made safer by tying the hands of the only true advocates they have.

www.youtube.com/watch?v=48RUxC3zvH4

The mother heard speaking in the above ad was present when a teenage driver recklessly careened down a quiet street striking her young son.  The teen pulled into the nearby driveway of his home not even having realized he had hit and dragged the child.  Miraculously, the child had only suffered severe scrapes and bruises.

The child was promptly taken to an emergency department of a large teaching hospital where a thorough survey confirmed the child had suffered no head injury or internal injury and the family was relieved.   During the course of the various studies that were performed an endotracheal tube was inserted through the child’s mouth and into his airway to assure control over the child’s breathing should an, as yet, undetected injury to the lung or the space surrounding the lung be present.  Because the child naturally resisted having a tube in his throat and respirator breathing for him, the child was chemically paralyzed so that he could not interfere with the respirator breathing for him.  Though by end of day the tests were all negative the tube and respirator were left in place.

The child was transferred out of the emergency department to a monitored unit with the plan being that the tube and ventilator be removed the next morning.

That night, while a physician was teaching a less experienced resident physician to perform a procedure on the child the tubing connecting the respirator to the endotracheal tube in the child was unintentionally bumped by the doctors and the endotracheal tube was displaced such that the respirator was no longer ventilating the child.  This event went unrecognized because alarms on the ventilator designed to warn immediately and loudly of the occurrence of such an event had been turned off.  The disconnect was not therefore discovered until the child was virtually in cardiac arrest.  Though the child survived following resuscitation, brain injury which resulted from the tube displacement and ensuing respiratory failure left him initially comatose.

The child’s mom and dad though present in the hospital were not in their child’s room when this catastrophe occurred.  When they saw their son the next day they weren’t alarmed that he wasn’t moving because they knew he was chemically paralyzed.  Excuses were given for why the child wasn’t removed from the ventilator that day and required continuation of the paralytic drugs for another day or so.  Then the paralytic drugs were removed and the child was successfully able to be removed from the ventilator and have his endotracheal tube removed and he breathed on his own.  He did not however wake up until much later.

Doctors provided the family with no explanation for why their child who had been admitted for bumps and bruises was now in coma.  The delayed resuscitation of their child and the physicians’ role in unintentionally displacing the endotracheal tube was not disclosed.

These unique circumstances led the parents to contact a lawyer.  I had the privilege of being the lawyer who was contacted.  My investigation revealed that the child had an unexplained need for a resuscitation because of an allegedly sudden drop of oxygen levels in his blood which coincidentally occurred at the same time that the child’s endotracheal tube suddenly became displaced for no particular reason.  Being a former respiratory therapist who had worked with respirator-dependent patients for many years, I was well aware that, in this child who had no lung disease or lung injury, there would not have been any sudden drop in his oxygen level from a displacement of an endotracheal tube because such a displacement would be immediately recognized if the alarms were properly set.

Eventually, I was able to discover and establish that the airway accident was easily avoided and that improper monitoring had led to such a delay in the recognition that a tube displacement had occurred.  The child was needlessly suffocated and anoxic brain damage had occurred.

Because of requirements of confidentiality imposed by a state agency on all medical malpractice cases, I am unable to report the means by which I was able to discover and prove the truth.  Similar confidentially requirements also prevent me from reporting the method or means by which we were able to help this child and his family meet the many economic and other challenges they faced.

This story is just one of many such stories untold.  Regrettably, because so many of these stories are untold, many victims of malpractice are unaware of what happens and where it happens and that it happens in every hospital.

When unexpected tragedies occur and doctors have inadequate or suspicious explanations, an experienced lawyer may be the only way victims can ever discover the truth.  By then taking action victims are no longer powerless.  Indeed, they help make the healthcare system better.  After all, you cannot fix something you don’t think is broken.