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

Kevin Pho M.D. has written that a screening test incidentaloma can make healthy people ill.  This is a theme that appears too frequently in the medical literature. When I previously addressed this issue in a prior article it did not then occur to me that the argument might be used to impair patients receiving recommended screening.

Medicine constantly searches for safer more specific screening tests to permit early diagnosis of treatable, but otherwise deadly diseases. Before a new strategy is introduced generally or prescribed in the care of a particular patient, considerable thought has been given to the sensitivity and specificity and cost of the method. Complications associated with a particular method are considered. Complications associated with such follow-up as may be employed in the pursuit of false positives is very much a part of the process.  A nodule appearing on an imaging study doesn’t automatically require a biopsy or invasive form of follow-up.   The distinction between findings that require follow-up and the particular kind of follow-up required is a matter of ongoing study, and it should be.

Earlier I addressed the idiocy of ignoring unexpected findings made on a diagnostic study. Example: A chest x-ray is performed because pneumonia is suspected. The film when interpreted by the radiologist reveals a mass. Should one  ignore the mass since that is not what was expected? The same logic could be employed to ignore a mass seen on a CT scan of the brain performed because of a recent head trauma. What is common to this point of view is the assumption that a physician’s initial assessment represents the universe of possibilities.

We once believed the earth was flat. Knowledge is acquired when we put aside assumptions that stand in the way of recognizing what is real.

What do you think?

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?

Doctors knowingly fail to cooperate to make medicine safe because they would then be required to practice safe medicine, and be held accountable if they fail.

In the recent issue of Obstetrics and Gynecology,[1] Drs. Strunk and Queenan in their advocacy for an administrative compensation plan to replace the tort system in providing compensation for adverse medical outcomes, liken the performance of a physician to that of a professional golfer or bowler.  Since a professional golfer does not always shoot par, and a professional bowler will not always have a perfect score, the authors  reason similarly doctors should not be expected to have perfect results.

“To Err is Human”.  But the fact that all humans are in some circumstance or at some points subject to err, does not mean that they should not be held liable for negligence.  The authors claim without any offer of proof that the most important reason for adopting an administrative compensation model for adverse medical outcomes is that somehow such a system would improve patient safety and the quality of care.  They also claim that there is such fear of litigation that it somehow impedes the investigation and analysis of adverse medical outcomes.  A remarkable claim suggesting doctors are so self-absorbed they knowingly fail to cooperate in efforts to make the health system better because they assume cooperation will reveal that they agree something is unsafe and such agreement might have personal consequences.  Certainly, if doctors were so affected by their egos, making them unaccountable for error would not convert them to patient centered saints.

There is and can be no evidence that litigation interferes with root cause analysis.  What most interferes with analyzing how needless harms have occurred is the unwillingness of doctors or other healthcare providers to admit they have done something wrong.  If a person has been careless and has hurt another that is wrong.

There was a time in this country when there was little litigation and there certainly were no malpractice suits available when there were doctors who continued to treat people with leaches long after their better informed brethren recognized the absurdity of such a practice.

The tort system particularly in Pennsylvania provides effective investigative tools, which in the hands of competent lawyers enable injured patients to determine with a reasonable degree of confidence whether an injury was avoidable or not.

Physicians object to the litigation system as they object to any system in which their conduct can be criticized.  One need only examine the existing peer review mechanism and how they operate within hospital systems when no litigation has been threatened.

A Bogie occurs because a person trying as hard as they can is unable to complete a hole in the prescribed number of strokes.  It does not occur because of negligence.  It occurs because of a lack of required skill.  If a golfer were to choose a putter to drive from the tee on a five par course, that would be negligence but only the golfer’s reputation would be at stake, not the life and welfare of a newborn.  A bogie is not a matter of life or death.

The March 8^th New York Times publishes a remarkably insightful opinion piece by Atul Gawande.  Gawande reminds us of a lesson learned long ago in a completely different professional context.

In 1935 the U.S. Army Air Corps held a flight competition for airplane manufacturers competing for the privilege of building the next generation long-range bomber.  Boeing seemed, to those in the know, to be the obvious winner.  It could carry five times as many bombs as the army had requested, it was fast and could travel almost twice as far as the existing equipment.

The competition was a disaster for Boeing.  Moments after takeoff the plane crashed killing the pilot and two of the five crew members.  After investigation it was clear that pilot error was the cause of the incident.  The pilot was required to attend to four engines, retractable landing gear, wing flaps, trim tabs and propellers for each engine whose pitch had to be regulated with hydraulic controls.  The pilot attending to all of these matters at the same time omitted to release a locking mechanism on the elevator and rudder controls.  The contract went to Douglas Aircraft and Boeing faced financial ruin.

Fortunately, the army purchased a few of the Boeing aircraft as test planes.  A group of test pilots came up with a brilliant and elegantly simple solution.  They created a checklist which if followed would assure that each matter that needed to be attended would be attended to at the time and in the order necessary to assure that the pilot would not be confronted with having to recall all of the various interactions since the simplest omission could be fatal.  These same pilots flew Boeing’s entry nearly 2,000,000 miles without a single accident.   The army ordered 13,000 of the aircraft which became known as the B-17.  This famous aircraft contributed to our victory in World War II.

The same lesson learned by the pilots who helped make the B-17 a safe aircraft have been resurrected sixty years later in an attempt to address preventable medical errors.  Just as the original pilot who crashed the then experimental B-17 was overwhelmed by the many routine but essential things that needed to be done and done in a particular order, similarly physicians today face the same problem.  Physicians are virtually assaulted by such a mass of information and important facts must not be overlooked, especially when to overlook a matter would be ruinous to a patient’s life.

Peter Pronovost, a critical care physician at John’s Hopkins Hospital was among the first, if not the first to give it a try.  In 2001 he created a checklist designed to tackle just one recurring problem in medicine: line infections.  He plotted the course one should take in order to avoid infections when putting in a venous or arterial line.  1.  Wash hands with soap.  2.  Clean patient’s skin with appropriate antiseptic.  3.  Put sterile drapes over the entire patient.  4.  Wear a sterile mask, cap, gown and gloves.  5.  Put a sterile dressing over the catheter site once the line is in.

Note that these steps had nothing to do with attempting to articulate the surgical skills needed to safely place the line.  Indeed, these steps have been known and taught for years.  However, Pronovost had nurses in his ICU observe doctors for one month putting lines into the patients.  In more than one-third of the patients the nurses observed that physicians omitted at least one step.

Pronovost was able in one year to reduce the ten-day line infection rate from 11% to 0.

What Pronovost observed is certainly a reality that we all confront.  Mundane matters are easily overlooked especially in the middle of a medical emergency.  Since Pronovost’s original work, other institutions have attempted similar undertakings.

Forward thinkers like Pronovost and others who followed, unfortunately are whispering in the midst of a storm.  Gawande called Pronovost recently and reports a certain pessimism.  According to Gawande, Pronovost told him, “At the current rate, it will never happen.  The fundamental problem with the quality of American medicine is we fail to view the delivery of healthcare as a science.  Once we acquire an understanding of the disease and find effective therapies for that disease, there seems little attention to assuring that the therapies are effectively delivered.”

We must not allow “The Art of Medicine” to be used as an excuse for individuality which is not a matter of informed choice but instead forgetful omission.

See related article concerning the Surgical check list

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.

Kevin Pho, M.D in his medical blog, Kevinmd.com, invites a discussion concerning whether elderly patients should choose premature death at home rather than being subjected to the complications that are associated with geriatric admissions.  He concludes that elderly patients admitted to emergency departments should be given the opportunity to choose going home rather than being admitted to a hospital.

An elderly patient should not be forced to forgo necessary treatment for a readily treatable condition and thereby face certain death in order to avoid death by “complications” faced by elderly patients who are admitted. This is certainly a choice between a rock and a hard place.

It is a mistake to assume an elderly patient cannot safely be cared for in a hospital setting. The morbidity our elders face is to a great extent avoidable by assuring that they are kept clean, hydrated fed and as active as their condition permits. Adverse changes in their condition should be promptly recognized and properly and timely treated. This is the level of care all patients deserve.

Because elders are more fragile they require more attention but tend to get less. Elders suffer more complications and more serious consequences not simply because they are fragile but more importantly because they to not receive the surveillance and attention they require.

The costs imposed on medicare are magnified because of inadequate treatment which results in needlessly prolonged geriatric admissions and readmissions and prolonged and useless rehabilitation admissions.

When these patients fail to thrive they are simply fullfilling expections. This is a self-fullfilling prophecy. The expectations need to be changed.

Communication is essential between health care providers but sometimes communication fails because of the arrogance or carelessness of the persons involved in the needed medical communication.

Several years ago, a female client about to enjoy an important anniversary was admitted to a University affiliated hospital for the purpose of having a colostomy wound debrided (cleaned up).

This was to be a one-day inpatient hospital procedure and was associated with little to no risk. As a part of the procedure, however, a prophylactic antibiotic was to be administered.

Unfortunately in this particular case, when the antibiotic (Cefotin) was administered the patient suffered a sudden cardiac arrest. This cardiac arrest resulted from a rare but well-known allergic reaction to this antibiotic. The patient was successfully resuscitated.  No harm done.  A substitute antibiotic was employed uneventfully.  Because the patient suffered a cardiac arrest before her surgery could be performed,  the procedure was rescheduled to occur approximately thirty days later with the same surgeon who had earlier been involved.  The anesthesiologist, who had saved this patient’s life earlier,  recorded in the order sheet, in the progress notes and even in a typed signed note provided to the patient, notice of what had happened to her, “You are allergic to the drug Cefotan. Don’t allow this drug to be administered to you. You may die.” Who could have done more to protect the patient from a similar future occurrence?

The patient showed her surgeon the note her anesthesiologist had provided and,  rather than openly disagreeing with the note, he simply said he was aware of that.

Thirty days after the patient’s original cardiac arrest she was readmitted for a repeat of the same procedure that was originally planned. The patient had ugly premonitions about what might happen which she shared with the admitting nurse. The admitting nurse was sufficiently concerned that she assured the patient that an anesthesiologist would attend the patient before the patient went to the operating room to ease the patient’s mind. The anesthesiologist who came to the patient’s side assured the patient that everyone knew she was allergic to Cefotan.   She said reasuringly,”You will not receive Cefotan.”   Were she to receive Cefotan she might die.   The wristband the patient was wearing revealed the presence of this allergy as did numerous references in the hospital records that no one could possibly miss.   The anesthesiologist promised the patient, “You will not receive this drug.”

Notwithstanding all these assurances the patient went to the operating room for her one-day procedure and as the same anesthesiologist entered the room who had just offered such reassuring promises, this anesthesiologist observed the patient was about to receive a prophylactic antibiotic intravenously. The anesthesiologist promptly inquired as to the type of antibiotic and was told, “Well its  Cefotan.” The anesthesiologist replied, “But she is allergic to that.”

Amazingly, the surgeon present, who was the same surgeon present at the time of the original cardiac arrest, insisted that the patient get the prophylactic antibiotic and the anesthesiologist present and the nurse anesthetist present lacked the courage to refuse.  Instead the anesthesiologist said to the nurse anesthetist, Well, make sure you don’t give to much.”  The drug was administered.  The patient died.

These facts are taken from a real case. Agreements and legal restrictions prevent the identification of names and places or even institutions.

The case was concluded in such a way that all involved were aware of their involvement and what they did, how it contributed to the patient’s death and what should have been done otherwise.   It is not always possible to prevent malpractice before it occurs but it is certainly essential to see to it when it has occurred with unfortunate results that those involved are made aware of what they have done and with what consequence.   It is the least we can do to assure that it is less likely the catastrophe be repeated.