Medical Malpractice.  Another Law School For You.

Medical malpractice, according to a 2016 study published in the British Medical Journal (and according to numerous similar studies over the last decade in the United States), is the third leading cause of death in the United States.  Over 251,000 people died due to medical errors, neglect and inexcusable mistake.  Only heart disease (614,000) and cancer (591,000) independently caused more deaths than medical mistakes.  Medical malpractice accounts for more deaths than accidents (136,000) and strokes (133,000), the fourth and fifth leading causes.

These numbers have remained about the same over several decades.

Medical malpractice as a legal claim, where a victim seeks compensation for the harm suffered, requires two component parts in order for a wronged patient to prevail.

What many do not understand is that simply because there was a bad medical outcome does not mean there was malpractice.  There are legal “hurdles” a victim must overcome in order to win a medical malpractice lawsuit.

The first hurdle is showing that the doctor or medical care provider or facility did not provide medical care within the “standard of care” generally understood to be acceptable within the particular field.  “Standard of care” is an industry “field by field” standard of acceptable practice and procedure.

Attempting a new procedure or technique is not necessarily malpractice, even if the procedure fails.

If a podiatrist attempted a big toe nail removal with an appropriate tool and accidentally cut the toe, that probably would not be medical malpractice.  On the other hand, if that doctor attempted the procedure with hedge-clippers and cut off the toe, then the toeless patient would certainly have a valid claim.

Within the podiatry acceptable standard of care, using hedge-clippers would be below the standard of care.

The second hurdle in making a successful medical malpractice claim requires a victim to show that there was an injury, and that the negligence caused the injury.  A mistake by itself leads nowhere if there is no injury.  Next, the medical mistake must be shown to be the specific cause of the injury.

An example might be a stroke during a knee surgery.  If all signs pointed to the readiness of the patient to undergo surgery, and during the surgery the doctor made a mistake in performing the knee repair, a stroke by the victim would not be attributable to the knee surgery error and would not be the basis for a malpractice claim.

Bringing a medical malpractice claim is typically expensive.  Costs include paying for “expert” witnesses. The experts are mostly doctors in the same field as the defendant doctor, who have reviewed records and are willing to testify in court that the defendant doctor’s conduct fell below the appropriate standard of care and caused the injury.  The costs in a typical case can be exorbitant and often play a part in deciding whether to pursue the claim.

Success rates of medical malpractice claims vary, but most fall in a 20-30% range if the case makes it all the way to a courtroom.  So again, if a victim is looking at losing 70-80% of the time, beginning, and spending the money for costs, is always a very real question.  On the other hand, while statistics again vary, they show that about 93% of cases resolve before a courtroom trial, and about two-thirds of those are favorable to the injured party.

Common malpractice claims are:

Misdiagnosis or delayed diagnosis.  These are most often cancer in adults and meningitis for children.

Childbirth injuries.  These include both malpractice during prenatal care, and malpractice during childbirth.

Medication errors.  Most of these are for medications prescribed to individuals over the age of sixty.

Surgery errors.  Most of these are non-life threatening mistakes, such as accidental nerve damage, leaving a foreign object in the body after “closing,” inability to control bleeding, and procedures performed on the wrong body part.

Anesthesia errors.  These can be fatal and occur when the wrong anesthesia is prescribed, or too much, or too little is administered.

A riveting new study adds to the list of possible reasons for medical mistakes.  A Canadian group has now concluded a research study that found that “double-booked” surgeries put patients at risk.

This new study was published in JAMA (Journal of American Medical Association) Internal Medicine edition last week.

The study reviewed 90,000 hip operations in 75 hospitals in Ontario and found that patients whose hip surgeries were performed by surgeons overseeing two operations at once were nearly twice as likely to suffer serious complications as those whose doctors focused on one patient at a time.

The study also found that the longer the duration of overlap between surgeries, the more likely patients were to suffer a serious complication within a year, including infections and a need for follow-up surgery.

The study is not without objection in the medical world.  Since 2015, seven other studies found no significant difference in complication rates when operations are performed at the same time.

Yet again, a JAMA Surgery study found that overlapping surgeries took longer and patients might have to spend more time under anesthesia.

Doctor proponents of double-surgeries say the practice increases efficiency, gives patients greater access to coveted surgeons, and instills independence in surgical residents who help attending surgeons.

The Canadian study stands out, however, according to many.  Unlike most studies done at a single teaching hospital, the Canadian study reviewed operations at scores of hospitals and looked at tens of thousands of patients.  As well, researchers tracked outcomes up to a year later, compared to only weeks, giving them a better and more complete picture of the patients’ recoveries.

Two doctors are now suing Massachusetts General Hospital. The double-booking issue is the focus.  In the first, a prominent orthopedic surgeon charges that he was fired illegally for opposing concurrent surgery.  The other case involves an anesthesiologist who claims that the hospitals’ surgeons double-booked operations to boost their case volume and income, and in so doing put patients at risk.

As might be expected, the hospital had denied doing anything wrong.

The single best preventative measure that can be taken to reduce the possibility of being a victim of medical malpractice is to ask many questions of the doctor prior to treatment.  This is not always possible, obviously, but in those situations where questions can be asked in advance, patients should do so.  Too many people blindly believe that “my doctor is the greatest” and agree to everything.

Patients beware.