Virginia Injury Lawyer Blog
On May 3, 2016 a leading peer reviewed medical journal “The BMJ” (formerly known as British Medical Journal) included a study authored by Professor Martin A. Makary (professor of surgery at the Johns Hopkins University School of Medicine) that shows just how common death occurs in America due to medical error—malpractice. This study was a front page story in May 3, 2016 Washington Post ( https://www.washingtonpost.com/news/to-your-health/wp/2016/05/03/researchers-medical-errors-now-third).
The study may shock some. Why? Because there is a systematic wall of silence that prevents the public from learning about negligent medical practices. When death occurs at a hospital as a result of negligence, information about the cause of death is usually kept secret from the patient’s family and the public. Frequently family members come to us because they want to know why a loved one died while in the hospital—not because they want to sue someone. They come to us because the hospital will not provide a cause of death—beyond something as vague as “cardiac arrest”. The term “cardiac arrest” might be accurate, but it says nothing about why the heart stopped.
If a plane or train crashes, the National Transportation Safety Board (NTSB) will investigate to determine the cause. This occurs regardless of the number of people injured. Why? To make air and rail travel safe—regardless of who might ultimately be held financially accountable. Frequently, hospitals will also investigate the cause of death but, unlike the NTSB, its investigation is kept secret. The hospital will not share with the family or anyone else the results of the hospital’s investigation.
Hospitals accredited by the Joint Commission are required to report certain adverse events to the Joint Commission for the purpose of quality assurance (patient safety), but those records are not available to the public. Reporting is regulated by the hospital itself—and the information reported is kept secret from the public, patients, and patients’ lawyers.
Health care providers argue that patient safety inquiries must be kept confidential, or their findings will be used against them. What exactly does that mean? Are they saying that absent confidentiality they will not police themselves? Is the risk of being held financially accountable for medical negligence more important than patient safety? Why does a hospital, especially one that operates for profit, get more protection than CSX or United Airlines?
For years the argument has been successfully advanced that medical negligence is largely a creation of malpractice lawyers. Lawyers who have skillfully duped jurors into believing there was medical error. Yet, ask a hospital or doctor’s defense lawyer if he will waive a jury and have the case tried solely by a judge and you will get nothing more than a laugh. Insurers will argue that malpractice litigation is rampant and cite the number of cases where defendants have prevailed versus those where the plaintiff won—what you will not hear is the number of cases that settled due to medical negligence. Why? Because hospitals and doctors, as a condition of settlement, demand that the patient agrees to strict confidentiality—so no one will ever know that medical negligence occurred.
We should all thank Professor Makary for bring this issue to light. While the number of deaths from medical negligence is staggering, it’s my guess that it would pale in comparison to the number of patients who survived medical negligence.
We need transparency in medicine. Adverse medical events need to be investigated and reported. Years ago I handled a case where a young Marine underwent an arthroscopic shoulder surgery and awoke partially paralyzed due to stroke. There was no investigation that we could find as to why this healthy young man suffered a stroke—he came to us to find out what happened. What we learned was that the surgeon wanted to decrease the patient’s blood pressure to keep the operative field as dry as possible, and while this was certainly a safe and standard procedure, the operation in this case was performed with the patient (asleep) in a sitting position and his blood pressure was monitored at his biceps—level with his heart, but below the brain. If the patient was lying down the blood pressure monitored at the heart would be the same as the brain—but when sitting, the blood pressure at the level of the heart would be greater than the brain. In this instance, the medical error was not accounting for the difference which caused the stroke. The point isn’t simply that we discovered the error—but that the case was settled under confidentiality, so that others could not learn from this mistake.