Chapter 3: The Moral Climate of Health Care

Section:  MALPRACTICE

organized by Sara Cerrone  (NCC, 2005)

1. Malpractice- What is it?

2. The Statistics…A Shocking Reality

3. What is Being Done about Malpractice?

4. How Can You Protect Yourself?  

1.     Malpractice- What is it?

Medical malpractice is also commonly called medical negligence.  Medical malpractice occurs “when a physician fails to properly treat a medical condition and the negligent act or omission is the cause of a new or aggravated injury to the patient.”  (www.civilrights.com/medical). The negligence on the part of a physician or other health care provider can occur in a variety of ways some of which include:

·         The delay or failure to diagnosis a disease or condition

·         An accident in the surgical or anesthesia procedure during an operation.

·         The failure to obtain informed consent for performing a medical procedure on an individual

·         The failure to properly treat a disease after a correct diagnosis has been made

·         The misuse of prescription drugs, medical devices or implants (www.civilrights.com/medical)

Medical malpractice can also include any professional misconduct carried out by a physician.  Professional misconduct is a professional performing any of the following:

  • ·         Obtaining a professional license fraudulently or practicing the profession fraudulently or beyond its authorized scope
  • ·         Practicing with negligence on more than one occasion or practicing with gross negligence on a particular occasion
  • ·         Practicing the profession with incompetence on more than one occasion; practicing with gross incompetence; practicing while impaired by alcohol, drugs, physical disability, or mental disability
  • ·         Being a habitual abuser of alcohol, or being dependent on or a habitual user of narcotics, barbiturates, amphetamines, hallucinogens, or other drugs having similar effects, except for a licensee who is maintained on an approved therapeutic regimen which does not impair the ability to practice, or having a psychiatric condition which impairs the licensee's ability to practice;
  • ·         Being convicted of committing an act constituting a crime under New York state law, federal law or, the law of another jurisdiction and which, if committed within New York state, would have constituted a crime under New York state law; among many others outlined in Section 6530 (Education Law).

The following websites provide more information about professional misconduct. 

Definitions of Professional Misconduct:

http://www.health.state.ny.us/nysdoh/opmc/laws/6530.htm

College of Physicians and Surgeons of Ontario definition of professional misconduct:

http://www.cpso.on.ca/Policies/profmisc.htm

Clicking on sub article brings up Section 6509 on the definitions of professional misconduct:

http://www.nysna.org/PROGRAMS/NPS/npa/prof_misconduct.htm

VIDEOS:

http://www.youtube.com/watch?v=cqBa0aDqvlQ
http://www.youtube.com/watch?v=JV-MrtOkIUc&feature=related

 

top

 ===========================================================================================

2.      The Statistics…A Shocking Reality

Medical Malpractice has become a huge problem throughout U.S hospitals. According to an article from the Journal of the American Medical Association July 26,2000, “44,000 and perhaps as many as 98,000 hospitalized Americans die every year from medical errors.”  These numbers are astonishing, but do not account for the number of people who die outside of hospitals due to medical errors. Many researchers feel that as many as 180,000 people could die each year in the U.S. due to medical malpractice. According to a recent study from the National Academy of Medicine, each year more people die from medical errors than from motor vehicle accidents (43,458), breast cancer ( 42,297), or AIDS (16, 516). The number of deaths caused by malpractice also exceeds the number of deaths in the U.S. caused by accidental falls, drowning, and aviation accidents combined.  The scary reality is that malpractice has become one of the top 10 leading causes of death in the United States. It appears that all of the advancements in medical technology made to increase an individual’s chances for survival is in no way able to make up for the number of lives lost due to medical malpractice. 

One lawsuit site:   www.civiljustice.org/medical.html

States that New York has 7,000 deaths each year as a result of hospital negligence. -- -Jon Shobin(2002)

Medication errors (or misuse of prescription drugs) account for many of the instances of medical malpractice.  The most common errors where medication is concerned involve a physician or nurse giving a patient the wrong volume or dosage of medication. Other possible medication errors include:

  • Diagnostic error, such as misdiagnosis leading to an incorrect choice of therapy, failure to use an indicated diagnostic test, misinterpretation of test results, and failure to act on abnormal results.
  • Equipment failure, such as defibrillators with dead batteries or intravenous pumps whose valves are easily dislodged or bumped, causing increased doses of medication over too short a period.
  • Infections, such as nosocomial and post-surgical wound infections.
  • Blood transfusion-related injuries, such as giving a patient the blood of the incorrect type.
  • Misinterpretation of other medical orders, such as failing to give a patient a salt-free meal, as ordered by a physician.
    (www.medicalmalpractice.com)

Between 7,000 and 7,400 people die each year in the U.S. due to medication errors. It is estimated that in U.S. hospitals, “1 out of 5 patients receive an incorrect dose of medication” (www.kraftlaw.com). The Number of deaths from medication errors in the U.S. per year is at least one death everyday and medication errors injure 1.3 million people annually (Center for Drug Evaluation and Research).  In New York state 1,400 people die each year due to medication errors.  In this way approximately 20% of medical injuries in New York State are due to medication errors. 

According to an article written in Life Extension Magazine in March 2004 entitled, “Death by Medicine,” “2.2 million people per year have adverse reactions to drugs within hospitals.  The number of unnecessary antibiotics prescribed annually for viral infections is 20 million per year.  The number of unnecessary medical and surgical procedures performed annually is 7.5 million per year.  The number of people exposed to unnecessary hospitalization annually is 8.9 million per year."  And finally, "the most shocking statistic is that the total number of deaths caused by conventional medicine is an astounding 783,926 per year!!" (http://www.chiro.org/LINKS/Iatrogenic_Page.shtml)   According to another article entitled, "U.S. Drug Safety Monitoring Must Be Expanded," an estimated "1.5 million people require hospitalization and 100,000 die each year because of injuries linked to prescription drugs." (http://www.chiro.org/LINKS/Iatrogenic_Page.shtml)

With the prevalence of malpractice instances so high it would be expected that many malpractice claims and lawsuits would be filed each year.  This is not the case in the U.S. though.  For every 7.6 injuries that occur within a hospital due to malpractice only one malpractice claim is made. The number of injuries caused by malpractice each year is estimated using the number of malpractice claims that are filed each year.  Thus the number of actually injuries caused by malpractice could be as high as about 8 times the number of malpractice claims filed each year. 

According to the National Association of Insurance Commissioners 90,212 malpractice claims were filed in 1995; 84, 741 in 1996; 85,613 in 1997; 86,211 in 1998; 89,311 in 1999; and 86,480 in 2000 (www.medicalmalpractice.com) In reality though the number of actual malpractice instances each year could be 8 times the number of claims filed. 

According to the National Law Journal, out of the 13 largest medical negligence lawsuits in the US in 2002, 7 were in New York State alone.  It makes you wonder…are New York hospitals really that safe?   

During the week of May 1-9, 2002 there were four consent orders and 2 hearing committee actions taken against various doctors. The month prior, 23 consent orders, 12 hearing committee actions, five administrative review board decisions, and one board of regents action was taken. Doctors whose licenses were suspended or who were fined or put on probation came from all over the country including Texas, Florida, New Jersey, etc. In 1999, sixty-three complex investigations had been completed with 25 physicians referred for hearing, revoked, surrendered or were in the process of surrendering their licenses. The Physician Monitoring Program unit monitors approximately 746 physicians under Board Orders. During 1999, 39 physicians were referred for violating their orders. In 1999, the number of cases referred for prosecution rose by 8.5 percent, from 354 in 1998 to 384.

Further information on malpractice:

Article talking about psychiatric standards of practice and malpractice:

http://www.forensic-psychiatrist.com/mal.html

Monthly reports on how often malpractice/professional misconduct occurs in a week:

http://www.health.state.ny.us/nysdoh/opmc/news/02/02may.htm

Annual report issued in 1999 on # of cases:

http://www.health.state.ny.us/nysdoh/opmc/annual/anrept99.htm 

The total national costs in terms of lost income, lost household production, disabilities, and health care costs from medical errors are estimated to be between $17billion and $29billion per year. 

http://www.hemolyticuremicssyndromeinformation.com/medical_malpractice/medical_malpractice_statistics.htm

In New York State the estimated cost of hospital infections is $100million to $200 million each year. 

http://secure2.convio.net/cu/site/Advocacy?id=299

Studies report that preventable medical errors cause up to 98,000 deaths each year. http://www.centerjd.org/press/stories/05-05-20.htm

 Harvard researchers found that 1% of a representative sample of patients treated in New York state hospitals in 1984 were injured, and one-quarter of those died, because of medical negligence. Nationwide, that would have translated into 234,000 injuries and 80,000 deaths in 1988 from negligence in American hospitals. Most of this involves physicians. There is no clear evidence that there has been significant improvement since then.   http://www.medicalmalpractice.com/National-Medical-Malpractice-Facts.cfm

Medical Malpractice Statistics

According to an article published in the Journal of the American Medical Association (JAMA), over 225,000 people die each year due to iatrogenic causes. This has become the third leading cause of death in the United States, after deaths from heart disease and cancer.

  • 12,000 deaths/year from unnecessary surgery
  • 7,000 deaths/year from medication errors in hospitals
  • 20,000 deaths/year from other errors in hospitals
  • 80,000 deaths/year from infections in hospitals
  • 106,000 deaths/year from non-error, adverse effects of medication http://www.medicalmalpractice.com

top

=======================================================================================

3.  What is Being Done about Malpractice?

Medical malpractice is becoming more and more prevalent in our society; at least it's becoming more visible to the public. Malpractice has always been a concern in the medical community, but in our ?sue everyone? Society physicians and the public are now more concerned than ever. What is being done about malpractice? Believe it or not, up until recent times not much of anything has been done to prevent malpractice or to make the public more aware of it. Numerous steps have been undertaken by public health officials, educators, government agencies, doctors, and individual citizens to help reverse the increasing trend of malpractice injuries and suits in the United States. There has been a suggestion for system modification, new guidelines, and legislation all with the hope of fixing the malpractice endemic that is present today. Also many government and medical society reports, along with educational and information web sites have been started to help with the problem. Finally medical schools have increased their teaching on the subject of malpractice.

Many physicians feel that their profession is being hurt by the small numbers of doctors that are responsible for the majority of malpractice cases. Statistics vary from state to state, but it is fair to say that on average 40% of the malpractice in a state is committed by about 20% of the physicians. In West Virginia since 1993 forty doctors are responsible for nine hundred of the twenty-three hundred malpractice claims filed. Physicians have started to lobby their professional organizations to develop a system that would ?kick out the bad apples,? and save the reputation of their profession. Doctors have come up with two main ideas on how this may be acceptable. The first idea is based on the three-strike law that is evoked against chronic criminals who continue to commit the same type of crime. The particulars have not been worked out yet, but the general idea is that if a physician has a certain number of claims filed against him or her, all relative to the same procedure or problem with misdiagnosis, then the physician would be put on ?probation? and given opportunity to take continuing education courses and then take written or practical exams to prove they have rectified the problem. If the physicians still had not proved themselves competent, then they may be required to have supervision by another physician when performing the procedure or when making certain diagnoses. This of course has problems in and of itself. Some physicians argue that their specialties, especially orthopedics and OB-GYN, are inherently more risky than others and mishaps occur much more often because of that. These physicians feel they would be unfairly discriminated against, and would risk serious consequences. Some other physicians suggest a system based on the severity of the malpractice. All possible acts of malpractice would be given a numerical value, and once a certain number was reached (with the number biased to the different specialties) there would be consequences. Things again like mandatory continuing education, proficiency exams, and supervision by another physician could be mandated. Ultimately the repeat of portions of the doctor's residency could be mandated as well, and in the worst cases loss of license to practice medicine.

Some doctors blame the increased frequency of malpractice on the medical system, and not the individual physician. Some physicians have suggested using a computer based medication system. This would help cut down on medication errors due to poor handwriting and same sounding medications. By having to type the medications into a computer it would help to ensure the person was receiving the correct medication. Some physicians have also suggested having to input clinical information to the program, so the program could run a check and make sure the medication prescribed was helpful for the situation or not harmful to the person. For example before allowing penicillin to be prescribed, the physician would have to enter that the person is not allergic to the medication. Another breakdown in the system has been the increased pressure placed on the primary care physician by HMO?s. The HMO?s are pressuring the primary care physician (PCP) to perform procedures and treat conditions that are beyond their area of expertise. They do this in-order to save money. PCPs have been trying to go along with this but now they are realizing that they are not Marcus Welby, and cannot do everything themselves. Dr. Hickson, head of pediatrics at Vanderbilt University Medical Center, is a physician who has been faced with this problem many times. He knows there are procedures and treatments he is not qualified to perform on patients. For example, he will treat routine asthma, but not complex asthma. He knows when to go against the HMO and refer the patient to a specialist. He feels that other physicians must also stand up to the HMOs and advocate for the patient, and not just worry about cost cutting. This would greatly help to reduce the number of malpractice claims.

In another attempt to reduce the incidence of malpractice states have issued guidelines on certain procedures and there is pending legislation that has been designed to protect the consumer. Just this year New York State issued guidelines for office-based surgery, www.health.state.ny.us/nysdoh/obs.html. The guidelines are designed to encourage voluntary restriction of certain procedures in doctor's offices. Most of the procedures that are to be restricted are done so because of the time spent under anesthesia by the consumer. Also some invasive procedures have been pseudo-restricted because of the lack of immediate emergency care if needed. The problem with this is that these are just guidelines, not laws. Physicians do not have to follow them if they do not want to. But if something happened while one of these restricted procedures were being performed, it would definitely look like malpractice, and most likely the physician would be found guilty of malpractice. National laws are also in the works to help protect people from malpractice and the offending physicians. Assistant US Secretary of Health and Human Services, Bobby Jindal, introduced one such proposal in December of 2001. The proposal would require supermarket like bar codes on all hospital administered prescription medications. The bar code would be scanned a total of three different times to ensure the correct medication was administered to the correct patient. Also right now in the House of Representatives HR 5122, "The Patient Protection Act," is being debated. The bill would increase the information reported to the National Practitioner Data Bank. Most notably it would require physicians to self-report felony convictions in all areas, not just malpractice. The government then wants this database to be open to the public unlike it is now. Many physicians do not like this idea, arguing that the public would not understand the info in the website, and in turn would draw misinformed conclusions.

One final way that is being used to help reduce malpractice is through the creation of other websites like the National Practitioner Data Bank and reports by medical societies and states. These websites and reports are being created to keep the public educated and informed. Many experts agree that public disclosure is a major factor in improved performance by physicians. One such web site is www.nydoctorprofile.com. This website details the education, specialty certification, state board disciplinary action, loss of hospital privileges, and malpractice judgments and settlements. Patients are encouraged to look-up their doctor before receiving any treatment from them. Also, by the end of the year the Federation of State Medical Boards will establish a web site that will publicly list data on physicians concerning licensure, specialty certification and credentials. Just recently New York State issued the Cardiac Surgery Doctor and Hospital Report. The report had information on surgeons and the hospitals they operate in. The most notable of the information was on the death and complication rates. These reports and websites have been created to assist the public when choosing a doctor. By being able to see if a particular physician has had trouble in the past, it will help to see if a physician has a trend with malpractice or other complications associated with their care. If such trends are seen it will help to steer people away from those problematic doctors.

Malpractice has become quite problematic in our society over the past two decades. Up until recently not much has been done to help curb malpractice or to help inform the public of malpractice occurrences. There has been recommendations on system modification, guidelines, increased information on doctors via the web, and legislation all with the hopes of decreasing malpractice. Additional steps must also be taken to help insure the public's safety and stop doctors from harming their patients. - - - Douglas Graudons(2002)

=======================================================================

With the many malpractice claims being made in the U.S. each year many medical schools are trying to better prepare their students and hopefully decrease the prevalence of malpractice in the U.S.

Physicians in training are presented with these questions and answers.

  • How do mistakes occur?
  • Do physicians have an ethical duty to disclose information about medical mistakes to their patients?
  • How do I decide whether to tell a patient about an error?
  • Won't disclosing mistakes to patients undermine their trust in physicians and the medical system?
  • By disclosing a mistake to my patient, do I risk having a malpractice suit filed against me?
  • What if I see someone else make a mistake?

Answers at: http://depts.washington.edu/bioethx/topics/mistks.html

Be sure to look at the cases and the advice concerning reporting errors!

=======================

In an article provided in Newsday in June 2005 by the Los Angeles Times, it was reported that the Federal Government was making an effort to try to digitize medical records.  According to Michael O. Leavitt, the Health and Human Services Secretary, “the use of electronic health records and other information technology will transform our health care system by reducing medical errors, minimizing paperwork hassles, lowering costs, and improving quality of care.” Leavitt will head a panel, “designed to push for a national system to exchange medical records electronically” (Los Angeles Times).  In this way all medical records would be on computers and allow physicians and other health care providers to quickly and efficiently obtain medical information on the individuals they are treating.  One of the major concerns in digitizing Medical records is privacy.  According to Leavitt, “records have to be private.  They have to be secure or people won’t use this.”  Through the use of electronic health care Leavitt hopes that not only health care providers, but health care recipients will benefit.  “Patients would benefit from a system that reduces their need to shuttle lab results from one hospital to another or fill out the same kind of paper work for each doctor” (Los Angeles Times). Hopefully the number of malpractice claims in the United States each year will decrease by providing doctors with a more complete medical history of the individuals they are treating with digitized medical records. (www.newsday.com)    

The 100,000 Lives Campaign is an initiative to engage U.S. hospitals in a commitment to implement changes in care proven to improve patient care and prevent avoidable deaths.  The Campaign is the first national effort to promote saving a specified number of lives by a certain date (June 14, 2006).  Over 3,000 Hospitals Have Joined the 100,000 Lives Campaign!    http://www.ihi.org/IHI/Programs/Campaign/ 

The campaign recommended six potentially lifesaving innovations to more than 3,000 hospitals that agreed to participate. The changes included rapid response teams to rush to a patient's bedside at the first sign of trouble, checks and rechecks to ensure that the proper drugs were prescribed and administered, adoption of the latest heart attack treatments, and various steps to reduce infections during surgery or while using hospital equipment. Roughly a third of the hospitals used all six measures, and more than half used at least three.--NY TIMES 7-5-06

top

 =========================================================================================

4. How Can You Protect Yourself?

Many books and websites are available to inform health care recipients about medical malpractice and things they can do to “survive” in the health care world. 

===================================================

There are websites that can check the malpractice history of a MD.  Such websites include:

License Information on Doctors and others.

These two sites are useful in finding information on your doctors. The second website will also allow you to check the license status of any number of professionals within NYS, from doctors, to nurses, to nurse practitioners, physician assistants, dentists, social workers, etc etc etc. There's also a link within the site to see if any disciplinary action has been taken against any one of the licensed people, and tells you what they did to get that disciplinary action. It's very specific.--Information and statement supplied by Carlos Serrano(2002)

There is also a website for consumers to get general information about protecting themselves from unwanted medical errors:

http://www.guideline.gov

Rate your Doctor:

http://www.ratemds.com/social/

http://www.drscore.com/

http://www.vitals.com/

 Rate your Hospital:

http://www.rateyourhospitalstay.com/rate_hospital

http://rateyourhospitalonline.com/

This site allows a person to research the death rates of any hospital in the United States.  You can choose a condition and see the death rates involved in that particular condition.  For example, if a hospital has many deaths that are a result of heart attacks, it will  be listed on this website. 

http://www.usatoday.com/news/health/hospitals-graphic.htm

The BEST Doctors and HOSPITALS

"America's Best Hospitals: The 2009-10 Honor Roll'  by Avert Comarow, USNews.com and found at 

 

Books include:

How to Survive Your Doctor’s Care: Get the Right Diagnosis, the Right Treatment, and the Right Experts for You

By Pamela F. Gallin, MD, FACS 

How to Survive Your Hospital Stay: The Complete Guide to Getting the Care You Need—And Avoiding Problems You Don’t

Lynn Sonberg Books

What Your Doctor Won’t or Can’t Tell You: Doctors, Hospitals, Drugs, Insurance—What You Need to Know to Take Charge of Your Own Health Care

By Evan Scott, Md. Levine 

The Brave New World of Health Care

By Richard D. Lamm 

Avoiding Malpractice: 10 Rules, 5 Systems, 20 Cases

By Carolyn Buppert (Paperback) http://www.amazon.com/exec/obidos/tg/detail/-/0972247610/qid=1118205756/
sr=8-9/ref=sr_8_xs_ap_i9_xgl14/104-3755357-1289562?v=glance&s=books&n=507846

top

 

Also of possible interest would be information at these locations:
 
 
 
http://www.mercola.com/2003/nov/29/death_by_medicine.htm
 

The BEST Doctors and HOSPITALS

"America's Best Hospitals: The 2009-10 Honor Roll'  by Avert Comarow, USNews.com and found at 

 

top

Return to the last section of the chapter by clicking here> section on Additional Resources

© Copyright Philip A. Pecorino 2002. All Rights reserved.

Web Surfer's Caveat: These are class notes, intended to comment on readings and amplify class discussion. They should be read as such. They are not intended for publication or general distribution.

Return to:                    Table of Contents for the Online Course Textbook