Recent Op Ed on Reporting of Medical Errors Hits the Mark

Should patients bear some responsibility for reporting medical mistakes?

On October 18, 2012, the Pittsburgh Post-Gazette published a strong op-ed by Karen Wolk Feinstein of the Pittsburgh Regional Health Initiative.  The well written piece is about an article describing the Obama administration’s push for patients to report mistakes and unsafe practices by their doctors and at hospitals.  Ms. Feinstein seriously questions  the shift in emphasis of the responsibility to report medical errors on consumers,  by  surveys, when doctors and other health care providers repeatedly fail to  voluntarily report medical errors.  We  agree  with Ms. Feinstein’s observation that the transition to  electronic  medical records  places doctors and hospitals in the best position to track and identify irresponsible behavior.  Federal privacy law requires health care providers maintain a system to track users who access, alter or modify protected health information in a patient’ s electronic medical record.   Hospitals can generate reports called audit trails which identify health care providers who accessed patient records, what records were accessed, when the records were accessed, and whether the health care provider  improperly modified a record.  Sometimes the audit trail associated with a client’s electronic medical record reveals improper modification of the record long after the time the care was actually provided.  Further, the audit trail may reveal that a physician accessed a radiology report or other records describing critical findings yet neglected  to provide timely care or treatment necessary for the patient to avoid serious or permanent injury.  A patient cannot obtain the information in an audit trail unless they file a lawsuit.  Instead, the patient will receive  a copy of the electronic record in its final version.   Moreover, the copy of the record provided to the patient may not represent the functional equivalence of the original electronic health record.  As the above examples demonstrate, it is naïve to assume the record a patient receives is a true and accurate record of their medical care and treatment or tell the whole story of what happened.

It’s also naïve to assume doctors or hospitals will report every medical mistake.  The Medicare Care Availability and Reduction of Error Act (MCARE) requires health care providers to report “serious events” in writing to the patient or a  family member 40 P.S. 1303.308(b).  A serious event is defined as an event that results in death or compromises safety and results in unanticipated injury to the patient requiring additional health care services.  40 P.S. 1303.302.  In spite of the law’s requirements, some health care providers choose to create their own definition of a serious event and neglect to provide the written notification required by MCARE.   Hypothetically, under a certain local hospital’s definition of “serious event”, if a surgeon negligently injures a health portion of large bowel in the process of removing polyps, it’s unlikely the patient will receive written notification of this medical error as long the doctors expect the patient to recover.  If a hospital is unwilling to acknowledge a mistake or comply with Pennsylvania law when an unintended injury occurs, even a minor injury, how do we know the hospital will address the error to prevent it from happening again, perhaps with greater consequences?

Ms. Feinstein is right to point out that health care providers, not the consumers, should take the lead in implementing safe practices to protect their patients.  If doctors and hospitals neglect their obligation to seek more and better ways to secure patient safety, a questionnaire  will do little to prevent future patients  from  suffering  the same medical errors and their consequences.

All articles in this blog are the collaborative effort of attorneys Jerry Meyers, Brendan Lupetin, and Gregory Unatin.

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