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

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.

News-Medical.net also reports on the trial confirming the neuro protective effect of magnesium sulfate I earlier discussed in “If Mother Only Knew.”  This report misses the point that many physicians still think the standard of practice still does not require that magnesium sulfate be administered to mothers threatening preterm delivery prior to 32 weeks.   Rouse was the lead author for the published study findings N-M.net reports.  However, Rouse wrote an opinion piece in the same issue of the New England Journal of Medicine lamenting that the beneficial effects of magnesium sulfate have not,  for some authorities,  been sufficiently established to recommend its use.  Rouse opines that the neuroprotective effects of magnesium sulfate could spare 1000 children a year from suffering cerebral palsy.

The first study to demonstrate the beneficial effects of magnesium in this setting was published in 1995.  The Rouse trial first reported upon in 2008 was the largest to date and those findings were again confirmed by Constantine and Weiner in their impressive meta-analysis “Effects of Antenatal Exposure to Magnesium Sulfate on Neuroprotection and Mortality in Preterm Infants” (Obstet Gynecol 2009; 114:354-64).

Weiner and Constantine, though concluding “magnesium sulfate…significantly reduces the risk of cerebral palsy without increasing the risk of death,” still fall short of insisting upon its use.   This vacillation evades the the kind of pronouncement that assures obstetricians of the need to change their practices.

How many further children must needlessly suffer until a new standard of practice is pronounced?  I think a new standard of practice has been announced and if obstetricians choose otherwise and cerebral palsy results,  those obstetricians will suffer consequences.

I believe the public at large has for decades laboured under the impression that here we enjoy the best medical care available (Untrue. By most measures both Germany and France do better).   Perhaps this is the reason that despite the real problems Americans have faced because of the increasing cost of health care the debate to day is chiefly focused on how to pay for it and how to maintain the choices we now have.

The cost of health care has increased because health care is a business and at some level those with the power to decide where the money flows have no more interest in the wellfare of patients than Ford motor company had in the safety of auto passengers when designing the Pinto (inexpensive part would have prevented death by fire but the Ford board decided that they would rather pay off victims and their families who filed claims than prevent the fires).

According to the Institute of Medicine, 100,000 deaths due to medical care are preventable.
Medicare has recently floated an interesting concept. They will not pay for the care resulting from preventable incidents.
We should be addressing the quality of care. The cost of care will then take care of itself.
Tue Aug 04 2009 13:02:30 GMT-0400 (Eastern Daylight Time) Comment to NPR http://bit.ly/sFhSs

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.