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

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?

For a comprehensive review of literature dispelling the myth that there is a big difference between high risk and low risk patients and screening for cervical cancer please read NUNS, VIRGINS, AND SPINSTERS’. RIGONI-STERN AND CERVICAL CANCER REVISITED, MALCOLM GRIFFITHS.

Put simply,  over a long period of time a concept often explained and often repeated, acquires an authoritative stature it may not deserve .  The concept’s very foundation may be faulty but the “test of time”  is no test  if, in all the retellings, the foundation is never reexamined.

In his article, Griffiths examines the much quoted proposition that low risk women do not require rigorous screening for cervical cancer.   Who is at lower risk than a nun?  It turns out this is a trick question because the risk of developing cervical cancer is about the same for a nun as an unmarried women and about half that of married women.

In the debate surrounding screening for cancer advocates of opposing positions tend to pick and believe evidence which agrres with therir respective positions.  This is a debate in which women cannot afford to be driven by bias.  They deserve the truth, their lives depend upon it.

For further information on cervical cancer and the importance of proper cancer screening see Meyersmedmal.com

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.

The Archives of Internal Medicine, June 22, 2009, published results of a retrospective medical record review involving nineteen community based and four academic medical center primary care practices.  The researchers were intent upon examining how frequently patients were not informed of clinically significant abnormal outpatient test results.  The researcher’s conclusion was that it is common for patients to be uninformed of significant abnormal outpatient test results and they suggest a simple process currently not being followed by most primary caregivers to correct what the researchers see as a problem.

Remarkably, they fail to comment on an additional meaningful conclusion that can be arrived at from examining the same data.  The doctors who didn’t inform their patients must not have done anything about the abnormal lab results.  Surely, it is not possible that physicians failed to inform patients of significant abnormal lab results only in cases where the lab results, though abnormal, suggested no need for a different course of medical treatment.  Perhaps a more important issue for these researchers to have examined is whether the results were communicated to the doctor and whether the doctor incorporated those results in the formulation of each patient’s continued and future course of care.

In these circumstances, a patient’s safeguard of last resort is their own interest in their medical care.  Patients need to be attentive not just in the outpatient setting but also in the hospital setting.  A patient should not assume that because there are a number of people who seem involved in their care, doctors, nurses, etc., that someone in fact is aware of all clinical events and test results and is thoughtfully guiding the patient’s care with a professional interest in the best possible outcome.

Learn more about abnormal pap smears.

Each year many die of multiple myeloma. It is a cancer principally affecting bone but capable of metastasizing to the lung and soft tissue. A man or woman in their 40’s or 50’s suddenly suffering a fracture of some spinal element without any precedent trauma that they can recall is certainly a possible victim of this disease. Other primary bone cancers and infection are also possibilities.

In such setting, physicians often will perform a test called Protein Urine Electrophoresis. This test is calculated to determine the presence in the urine of light chain protein. It is not very important that one understand what a light chain protein is.   It is important to understand that kidneys are not supposed to leak proteins and if they do leak proteins, it is a distinct possibility that a light chain protein is involved (also sometimes referred to as M proteins).

MGUS is not multiple myeloma. There are distinguished physicians who write ably and in detail about the differences. It is however also the case that if a person has evidence of MGUS and they live long enough, they suffer a one in four chances of dying of multiple myeloma, a terrible illness.

It is for this reason that it is worthwhile to be screened by urine electrophoresis testing any time there is an unexplained fracture.

There are some who follow MGUS simply by doing regular screening to determine whether the concentration of protein increases or not. These physicians will argue that there is no reliable evidence that treating multiple myeloma prior to its full-blown appearance does no good. On the other hand, if one doesn’t carefully monitor for this cancer by the time a diagnosis is made it is entirely possible that one will be suffering several crushed vertebrae with metastasis and other dreadful consequences. A delay in diagnosis worsens the outcome.

A client of ours once suffered a fracture while playing golf.  He did not fall or strike himself.  The fracture was of  a neck bone (cervical vertebra).  An intern appropriately considered the possibility that this unusual fracture without trauma might be due to osteomyelitis or some form of cancer such as multiple myeloma. Among the tests that were ordered was the urine protein electrophoresis examination.   The test was positive but was reported to no one.

It is essential when you are in the hospital for a workup for any illness that you take active steps to learn whether all lab results and imaging results have in fact been directly communicated to persons with an interest in your health.   A mistake in communication can have disastrous consequences.