A recent news report reveals that at one prominent Rhode Island hospital, three different brain surgeries performed by three different surgeons involved surgery on the wrong side of the head. Same hospital. All in one year. Here’s the link: www.msnbc.msn.com/id/22263412/
The report details how surgeons and nurses failed to comply with safety procedures designed to ensure that surgery is done at the correct site. The regulating agency, Joint Commission on Accreditation of Hospitals gets 8 reports a month of wrong-site surgery, but the Commission notes that hospitals are not required to report these incidents. As a consequence, the rate of error from this type of medical mistake is believed to be 10 times higher than the reported rate.
If you think about it, surgery is a fairly intense way to treat a big medical problem. To cure, the surgeon is literally cutting into the human body and removing and restructuring the body. That’s a bit obvious, of course, but it’s an important concept when thinking about what it means to do surgery at the wrong site. It’s another form of unnecessary surgery, and that’s no small thing for the patient.
When we undergo surgery, patients literally surrender all control to the doctor and medical staff. We’re put under and have no way to gently say, “Excuse me, doctor, but it’s the other hip.”
The best outcome would be that the surgical team review and re-review the patient’s chart to make sure that surgery is being performed where it is needed. Failing that, the patient’s only recourse is the civil justice system. This is the only place where ordinary people have the ability to call wrongdoers to account. This is true even when the wrongdoer is rich and powerful.
So next time you hear a politician ranting about the “malpractice crisis” or “frivolous” lawsuits, it might be wise to remember that serious mistakes happen, and the system needs to remain open to address those errors.
David F. Sugerman
The Washington Post reports today that Maryland is demanding repayment of $84 million from a physician insurer because–here’s some news–the medical malpractice “crisis” wasn’t actually a crisis.
Back in 2004, then Gov. Ehrlic convened a special session to deal with what he termed the malpractice crisis. Maryland began to provide subsidies.
The insurer recently announced that it had a surplus and would pay some of the money back to the State and the rest to doctors in the form of a rebate for next year’s coverage. State regulators weren’t thrilled and instead demanded repayment of the $84 million which had been raised by a surcharge on HMO subscribers.
It’s nice to see a state government stand firm and demand return of public money. It might be interesting to take a look back at who was fanning the flames on the non-crisis.
David F. Sugerman
Ah yes, it’s campaign season again. And we have another politician calling for, “federal caps on non-economic and punitive damages related to malpractice” because, “lottery-sized awards and frivolous lawsuits may enrich the trial lawyers but they put a heavy burden on doctors, hospitals and, of course through defensive medicine, they put a burden on the entire health care system.”
This time it’s Mitt Romney. Link: www.salon.com/wires/ap/2007/11/20/D8T1MFNO2_romney_health_care/index.html
I don’t know where to start. First, with the irony. I thought Gov. Romney was a conservative, but here he wants regulation and a one-size-fits-all federal standard for all patients injured by physician neglect.
The bigger problem is that Gov. Romney either knows nothing about profound injury or–worse–he knows it well, but wants to treat patients’ rights as a political issue. There are bigger policy problems. To begin with, punitive damages in medical cases are so rare as to be almost non-existent. They are awarded in the rare case when a surgeon–who is drunk–commits a surgical error or when a doctor who is a pervert sexually abuses a patient. Most doctors and nurses are honorable and good people, and that is why the punitive damage problem is rare.
And then there’s the lottery argument. For a buck or two, you can play the lottery in most states. You’re likely to lose but if you win, you’ll be a multi-millionaire. To “play the lottery” in a medical malpractice case, you need a profound injury–often it’s as serious as death, or a life in a wheelchair. No matter what happens you will be that way for life because of a mistake made by an inattentive doctor. That’s a tragedy, not a lottery. Anyone who confuses the two does not understand the devastation caused by profound injuries.
And then there’s frivolous lawsuits. This is a phrase that really means, “We don’t trust juries.” For according to Gov Romney and others, juries can’t tell when a lawsuit has merit, and they will literally shower the fraudulent party with a torrent of cash. I’ve been trying cases for over 20 years. Maybe I’m just not a very good lawyer, but it’s pretty clear that juries have plenty of sense when it comes to ferreting out good claims and bad ones. Or maybe Gov. Romney and those who rant about the “crisis” have a different agenda.
In the end, it’s easy to trust the jury. Our ancestors set up the jury trial system to protect us against politicians and titans. Let’s not mess with it, as they knew what they were doing.
David F. Sugerman