malpractice

BAD MEDICINE

"First, do no harm."

So states the Hippocratic Oath. Yet, each year patients continue to be harmed at the hands of their healthcare providers. According to one recent study,⁽¹⁾ malpractice statistics are staggering: more people die annually from medical errors than from motor vehicle accidents [43,458], breast cancer [42,297] or AIDS [16,516]. Further, national costs from medical errors are estimated at between $17 billion and $29 billion annually (including lost income, lost household production, disability and health care expenses). Malpractice does not just occur on the operating table; more than 7,000 deaths occur annually from medication errors that take place both in and out of hospitals. Based on results of their recent study, the Institute of Medicine/Committee on the Quality of Health Care in America recently called on Congress to implement rigorous changes throughout the health care system, including mandatory reporting requirements.⁽²⁾

Malpractice Defined

Though the laws vary, medical malpractice is more than just a minor error in a patient's treatment or diagnosis. To be considered malpractice, a patient must have suffered serious harm as a direct result of an error caused by the negligence of the health care provider.⁽³⁾ For a jury to convict a provider of malpractice they must:

determine that a patient is worse after treatment;
determine that most doctors would not have performed treatment in manner it was done; and
determine that the treatment was actually what made the patient worse.

No Longer a Stigma

Being sued for malpractice was once perceived as a fatal blow to a doctor's reputation. In today's litigious society, however, it is viewed as an almost-routine aspect of conducting the business of medicine. One national study of over 1,700 physicians showed that 58% of the respondents had faced malpractice charges. Worse, more than 1 in 5 had been sued at least 3 times. Worse still - if you isolate the responses from general surgeons, orthopedists and OB/GYNs, 1/4 of those specialists had been sued at least 5 times. Threat of malpractice no longer holds fear: almost 70% of the doctors surveyed indicated that they "expected to be sued over the course of their careers."⁽⁴⁾

It isn't any wonder that malpractice suits don't strike terror in the hearts and wallets of would-be defendants. According to statistics from the Physician Insurers Association of America, almost 70% of malpractice cases are ultimately closed with no indemnity payment to the patient; in jury trials, physicians win more than 80% of the time.

Who's to Blame?

Pointing the Finger

In the above study, only 13% of those who had been sued felt that the complaint was justified. 3/4 of the respondents felt lawyers were to blame for malpractice suits, 22% blamed the patient, and 11% blamed the media for allegedly glorifying the courtroom experience and portraying fictionalized accounts of high patient payouts.⁽⁵⁾

Unrealistic Expectations

It is unrealistic to think of one's physician as a miracle worker. Physicians are just like anyone else. Though they have specialized training, it might not be enough for your medical needs. We must also remember that they have lives outside of their offices, are plagued by much of the same circumstances as their neighbors, and are capable of potentially experiencing professional burnout like any other career person. Some estimates relate that between 15-20% of physicians are burned out.⁽⁶⁾ As with any other profession, stress and career disaffection can impact the work product; in this case, the patient is the work product.

It is the patient's right and responsibility to educate herself about her condition, the doctor she has chosen and the treatments she will embark on. Gone are the days when a doctor's orders were followed without question. Today, more patients are becoming educated and empowered partners in their healthcare (as it should be). Placing unrealistic expectations on one's healthcare provider is only setting both parties up for disappointment - and perhaps litigation.

Gross Negligence

When does a mistake become malpractice? All fairness aside, sometimes a physician botches a surgery he/she is not capable of and therefore should not be performing in the first place, misdiagnoses an illness or condition by refusing to order appropriate testing, or prescribes a medication he/she should know by his/her own records that their patient is allergic to. If at any time you feel you have been a victim of malpractice, speak to a lawyer about your rights. You can also find a summary of malpractice laws by State at: http://www.mcandl.com/states.html

More Than Just Malpractice

Endometriosis is not exempt from the malpractice arena. Indeed, specialties like Obstetrics & Gynecology are particularly rife with high malpractice claims and physician stress.⁽⁷⁾ Cases ranging from a patient's colon being perforated during cauterization of her Endometriosis⁽⁸⁾ to another patient being prescribing medical therapy for her Endometriosis, which was inappropriate for her particular circumstances,⁽⁹⁾ have all been brought before the courts. Some of these cases could be deemed as accidental, others as grossly negligent on the part of the physician. Then we are met with cases that go beyond malpractice, to downright unethical.

There is one such case currently under litigation at the moment, involving two prominent gynecologists who are widely known for their innovations in Endometriosis treatment and gynecologic surgery at large. These physicians stand accused of malpractice, performing unnecessary operations, concealing surgical complications and misrepresenting their work in research papers.⁽¹⁰⁾

Met with claims of falsifying data, failing to acknowledge surgical complications of a risky Endometriosis surgery and inaccurately reporting such complications in an Endometriosis-surgery journal article, the pair originally dismissed the allegations as "the result of professional jealousy and a vendetta by a malpractice lawyer." However, one of the pair later acknowledged presenting incorrect data in the Endometriosis-surgery journal article, claiming it was "simply the result of an inattention to detail and not an attempt to defraud the medical community." Subsequently, in a rare move, the medical journal retracted the articles on the Endometriosis surgery authored by surgeons.⁽¹¹⁾

This case raises serious questions about integrity, failure to obtain informed consent from patients and the validity of the data used by thousands of other Endometriosis treatment providers.

Accountability and Responsibility

Sadly, malpractice is still going to occur, whether by honest mistake or gross negligence. Hopefully, it won't happen to you. Remember: you have the right to be fully informed about your treatment - including the possible complications involved - and to seek another doctor if you are not 100% satisfied with your care. You are ultimately in charge. We can't prevent surgeons from making mistakes, but we can work with them to obtain the best possible care - and we can hold them accountable for their actions. By becoming educated, empowered patients who take active roles in our healthcare, we can lower our risk for becoming a statistic in a court battle.

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References:
(1) Study results, National Academy Institute of Medicine. Presented by Pritzker & Associates, PC, Attorneys at Law, 4520 Multifoods Tower, 33 South 6th Street, Minneapolis, MN 55402. http://www.pritzkerlaw.com/nine.html.
(2) "To Err Is Human: Building a Safer Health System," by Linda T. Kohn, Janet M. Corrigan & Molla S. Donaldson; Committee on Quality of Health Care in America, Institute of Medicine. http://www4.nationalacademies.org/iom/iomhome.nsf
(3 )Medical Malpractice Victims Organization; http://a-r-m.org/page5.htm.
(4) & (5) "Malpractice Wars: National Survey Confirms Even the Best Doctors are Targets," by Mark Crane. Medical Economics Magazine, July 26, 1999.
(6) & (7) "When Doctors Face Their Own Demons Head On," by Dr. Todd Pearson. Presented by Brown & Riding Insurance Brokerage/Medical Malpractice Divison. http://www.brownandriding.com/casualty_1e.htm
(8) Minneapolis Star-Tribune, April 13, 1996. http://www.everestmedical.com/techrvws.html
(9) State of Louisianna Court of Appeal First Circuit No. 99 CA 0766, Wade Terrebonne individually and on Behalf of Derek Terrebonne and Rachel Terrebonne Vs. John Floyd, MD; judgment rendered May 23, 2000.
(10) "2 Stanford Doctors Face Probe," by Barbara Feder, Knight Ridder News Service. http://s22.pni.philly.com/inquirer/2000/Nov/07/international/NEZ07.htm
(11) "Doctors May Have Falsified More Data: Controversy Continues over Gynecological Procedures," by Linda Carroll & Alfred Lubrano, MSNBC. http://www.msnbc.com/news/485216.asp