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THE SCOPE OF THE PROBLEM-HUMAN LOSS For more than two decades, medical errors have been a center stage in the medical arena. It began with a New England Journal of Medicine article covering medical errors in acute care, non-psychiatric hospitals in New York State in 1984. The study concluded that nearly 100,000 patients suffered “adverse outcomes.” Of those patients more than 14,000 died, and 2,500 were left permanently disabled. Further, it was concluded that approximately 28.5% of those adverse outcomes involved negligence. When the NEJM model was applied to the nation as a whole, the possibility of a patient dying at least in part due to negligence—or medical error—was frightening, with estimates ranging from 50,000 to 100,000 annually. There was an immediate hue and cry from the general public, state and federal government, and the medical community. Committees were formed, websites were created, and policies were proposed in order to find ways to prevent or at least greatly reduce the incidence of medical error. In 1996, the American Medical Association (AMA), along with several businesses and organizations, created the National Patient Safety Foundation (NPSF) with the stated intent to make patient safety a national priority. Unfortunately, a 1999 Institute of Medicine (IOM) comprehensive 3-year study entitled, To Err is Human: Building a Safer Health System, that estimated between 44,000 and 98,000 people still died every year as a result of medical errors in hospitals, and the situation has not improved. According to the Wall Street Journal, a study by Health Grades®, an organization that rates the quality of hospitals, during the period 2000-2003 medical errors in U.S. hospitals contributed to almost 600,000 patient deaths.
The IOM study points out that even if you assume the lower figure of 44,000 deaths per year, medical error is one of the leading causes of death in the United States, ahead of car crashes, breast cancer and AIDS. Further, a person is more likely to die from medication error-about 7,000 fatalities annually-than from work-related injuries. These are staggering statistics, and when you put a human face on them they quickly become a tragedy. Like the face of Ben Kolb, a 7-year old who died during routine ear surgery because he was given an injection of epinephrine that was 1000 times stronger than the dose he should have received. Or the man in Florida who underwent an amputation due to complications from diabetes, and the wrong leg was removed. There is also another very important loss in human terms, the loss of confidence in the medical profession. The American Society of Health System Pharmacists conducted a survey with some very worrisome results:
The NPSF conducted a national poll in which the respondents only gave the US health care system an overall rating of “moderately safe.” This was not surprising in light of other information uncovered in the poll:
A joint study by the Kaiser Family Foundation and the Agency for Healthcare Research and Quality (AHRQ) showed that Americans are more concerned that their healthcare provider will make a mistake than they are concerned that they might be in a plane crash. Even medical errors that do not have a permanent negative effect damage the credibility of the health care system. In a case reported in 2002, a man went into a Rhode Island hospital for surgery to repair bleeding on the brain-and the surgeon drilled into the wrong side of his head. Since no blood was evident, the surgeon then operated successfully on the correct side and the man suffered no permanent ill effects. Still, when this type of error comes to light, it chips away at the public’s confidence. THE SCOPE OF THE PROBLEM-MONETARY LOSS Another staggering statistic associated with medical error is the monetary loss. The IOM puts the figure at nearly $38 billion annually, with about $17 billion of that amount associated with preventable errors. It is estimated that the average teaching hospital suffers losses of approximately $5 million annually because of preventable medical errors. Needless to say, hard on the heels of medical error is the malpractice claim. In one very public lawsuit, actor/comedian Dana Carvey filed a $7.5 million claim after he discovered that the surgeon who performed his double bypass heart surgery had bypassed the wrong artery. Carvey was forced to undergo emergency surgery to repair the correct artery. He settled his case out of court for what was rumored to be about $2 million and donated the money to various charities. It is hard to accurately estimate the total losses from malpractice claims because so many are settled out-of-court with nondisclosure clauses attached, but we can see by the public record of jury trials and settlements that the awards for malpractice are rising at an alarming rate. In 1999, the median jury award was $700,000, in 2000 it was $1,000,000 with 50% of the jury award at least $500,000. By 2003 the median award had jumped to $1,200,000. A Towers Perrin study released in 2005 showed that Malpractice costs now total more than $27 billion annually, or about $91 for each American, who must ultimately pay the price. That compares to about $5 for each American in 1975, an almost 20-fold increase. THE SCOPE OF THE PROBLEM-THE LEGAL SYSTEM There are basically two systems of laws governing us-civil and criminal.
CIVIL LAWSUITS Usually lawsuits filed against physicians are civil lawsuits. This is because most allegations of wrongdoing against doctors fall under the category of professional negligence. If found guilty of wrongdoing in a civil lawsuit, the wrongdoer will be ordered to make restitution of some sort to the victim. Most often this is in the form of money damages paid directly to the victim. The civil lawsuit most often filed begins with a malpractice claim. Malpractice generally involves a professional acting in his or her professional capacity. To prove a claim of malpractice, four elements must be proven:
In the case of a medical error, proving these four elements is a fairly simple process. If a patient dies as a result of negligent medical care, the patient’s family or estate might bring a lawsuit for wrongful death. The decedent’s family seeks remuneration for future economic losses, such as lost income and financial support. Everyone loses when a preventable medical error occurs: the physician trying to defend himself against a lawsuit, the patient, the patient’s family and the medical community. While it is impossible for any human being to be perfect, there are procedures you can adopt in your practice of medicine that can help you greatly reduce the risk of medical error. There are many types of medical errors, including:
We will examine the potential for these errors-and preventive techniques-individually.
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