Eugene Fahrenkrog BLOG
A new study by patient safety researchers at John Hopkins University shows common medical errors may be the third leading cause of death in the U.S., after heart disease and cancer. (Deirdra O'Regan/The Washington Post)
Martin Makary, a professor of surgery at the Johns Hopkins University School of Medicine who led the research said in an interview that this category includes everything from bad doctors to poor communications from department to department.
Note the graph published in The Washington Post, that there are more deaths from Medical error than from respiratory diseases, accidents, strokes, and Alzheimer’s. See the complete article from the Washington Post here.
I recently wrote about the fact that the Missouri Supreme Court was reviewing the cap on so-called “non-economic” damages as a result of medical malpractice. Enacted in 2005 as part of a series of tort reform efforts, this cap of $350,000 did not do justice to those harmed by medical malpractice; the costs of continuing care for those injured by medical negligence can reach far beyond the cap's maximum, often even into the millions of dollars for conditions like Cerebral Palsy that require life-long care. Fortunately, that cap is a thing of the past.
According to the St. Louis Post-Dispatch, the Missouri Supreme Court determined last week that the cap "infringes on the jury's constitutionally protected purpose of determining the amount of damages sustained by an injured party." As an experienced medical malpractice lawyer, I could not agree more; though some argue that the cap was important to reducing costs, in reality it has not done much to that effect according to the Missouri Foundation for Health study cited by the Post-Dispatch. Given that only approximately one percent of medical malpractice cases reach trial and result in a victory for the plaintiff, all that the cap did was artificially withhold compensation that victims of medical negligence were entitled to.
Though some state legislators are currently talking about calling a special session in Jefferson City to put a Constitutional Amendment on the November ballot to reinstate the cap, this is a clear victory for patients across Missouri as they can finally receive the full amount of compensation that a jury of their peers determined they should receive to compensate for the harms caused by medical malpractice. The pain and suffering caused by a healthcare provider's negligence can last long beyond actions to hold the negligent party accountable, and removing the cap on damages ensures that victims of medical negligence are able to afford the continuing care they might require as a result of medical malpractice.
There was a question raised on Internet Q&A service Quora recently that looks at another angle of a question medical malpractice attorneys get asked very often. Frequently clients of ours will ask whether a medical negligence suit will impact their ability to receive care in the future. In general, victims of medical malpractice do not have any trouble finding a suitable replacement doctor in the St. Louis region. In fact, for reasons that may be obvious, it is perhaps encouraged to find a different physician or specialist for care subsequent to a medical malpractice claim. The reasons for switching doctors after a medical negligence claim may be entirely justifiable on the surface, but there are other angles of such a decision that play a role as well.
Ethically, doctors have a duty to ensure that patients receive care appropriate to their condition, however as Bertil Hatt points out on the Quora topic, there is no reason a particular doctor should be compelled to be the one giving care, as long as someone reasonably qualified to do so is in the same geographic area. In rural areas or places where the availability of healthcare providers is limited, the case may well be different, but in cities like St. Louis there is typically no such issue in finding a replacement.
In fact, the prior claims of medical negligence may make an argument for the original provider to deem him or herself unsuitable for a subsequent procedure as a result of the strain on the doctor-patient relationship, especially if the case ends up going to trial. Whether the doctor believes in his or her professional capacity to perform the procedure despite the strain, he or she may opt to recuse themselves just as attorneys occasionally do on sensitive cases. Just as in any relationship, both the patient and the doctor can have equally justifiable reasons for wanting to end it.
The state of Missouri imposes a cap of $350,000 on medical malpractice cases, regardless of whether the jury thinks the amount of harm caused by medical negligence deserves a much greater penalty. These limits are unfair to the victims of such negligence, who often are left being unable to perform basic activities without great difficulty, and serve to provide an “escape hatch” for health care providers who would otherwise be fully accountable for the harms caused by their negligence as determined by the court. Fortunately, this may change in the near future. A new case before the Missouri Supreme Court challenges these limits, with the aim of convincing the Court to render the statute establishing the cap unconstitutional.
Cerebral Palsy can be a consequence of medical malpractice while a baby is being born, with effects that are permanent and can be extremely damaging. In a recent case, a jury decided that the family of a victim of Cerebral Palsy as a result of medical malpractice was entitled to $1.45 million in so-called “non-economic damages”, which was then reduced to the maximum under the cap. Though the arguments before the Court now are purely Constitutional ones, dealing with whether the statute violates the separation of powers between the legislature and the judiciary as well as the fundamental right to a trial by jury, the result will have a major impact on the way medical malpractice cases are handled in Missouri.
If the cap on damages is found to be unconstitutional, it could be possible for plaintiffs in successful medical malpractice cases to receive the full amount that they should have originally recovered; given the nature of the harms caused by medical malpractice to persist potentially long after the conclusion of any legal action, it is essential that plaintiffs receive the compensation they are entitled to. Damages are awarded in the amounts that they are for a good reason; it is not right or fair for any victim of medical malpractice for an artificial limit to be in place. The cap needs to be overturned so that the victims of medical malpractice can receive the full extent of what the due process of law, rather than politicians in Jefferson City, determined they should receive.
Medical negligence, in which a doctor or other healthcare provider fails to meet an objective standard of care or simply forgets to do something in the course of treatment that is considered a necessary part of case, such as taking a medical history and clearly telling a patient to abstain from physical activity during treatment. Cases of negligence make up a significant portion of all medical malpractice cases, and as with all medical malpractice cases, are extremely difficult to successfully pursue even for experienced medical malpractice attorneys due to the need for expert witness testimony and the quality of defense doctors are able to afford. One particularly common defense is what is known as an “error in judgment”. In short, doctors are, of course, human, and the law has recognized that, as experts in their field, some leeway should be given to the doctor’s professional opinion.
In a case currently before the Pennsylvania Supreme Court, the validity of this defense is being reconsidered. One of the current cases before the Court, Passarello v. Grumbine, was the end result of a misdiagnosis of their two-month-old son, Anthony, which, it was argued, was the result of an error in judgment rather than outright negligence. Though the jury ultimately sided with the defense, Judge Bender of the Superior Court ordered a new trial be given, as “defense counsel's arguments…’exploited’ the trial judge's jury charge” regarding the Error in Judgment rule.
In addition, the Superior Court Judge wrote that the instruction on this rule was, in fact, erroneous due to a precedent set in 2009 in Pringle v. Rapoport, which effectively banned the Error in Judgment defense in Pennsylvania. Whether it can be applied retroactively, if at all, is the question currently before Pennsylvania’s Supreme Court. Though specific aspects of medical malpractice law, as in all areas of the law, vary by jurisdiction, broader trends such as the Error in Judgment defense in negligence cases tend to be mirrored in other states. Though the ruling by the Pennsylvania Supreme Court will not have a direct impact here in Missouri, our state does allow for the Error in Judgment defense to medical malpractice claims; therefore it should be an interesting case to watch, as state lawmakers and courts often look to each other for solutions to complex legal questions such as the nuances of medical malpractice law.
Modern medicine is extremely complex, and even when deliberate negligence by a doctor or other healthcare provider is not a factor, there is still the risk, however small, of something going wrong in even relatively simple treatments. There is, however, a way to reduce this risk and improve the quality of your treatment in the process. Oh, and best of all, it is absolutely free, safe, effective, and chances are you already know how to do it.
The secret to easily improving healthcare and minimizing risk of an error in treatment, according to the US Department of Health and Human Services’ Agency for Healthcare Research and Quality (AHRQ), is simply asking questions. You’ve probably been in to see a doctor at one point and he or she barely spends any time with you because he or she is incredibly busy. Imagine trying to keep track of all the different patients that they see on a given day! As in all aspects of everyday life, communication is key, yet according to AHRQ more questions are asked when ordering a meal than in the doctor’s office! Questions like “How many times have you done this procedure?”, “What are the possible complications?”, and “How do you spell the name of that drug?” and more are all important things to ask, but even more can be done.
In addition to the AHRQ’s Ten Questions You Should Know, the agency recommends in general being involved with healthcare, not just as what could be considered an idle customer; even things that don’t require a lot of thinking such as asking hospital workers that you come into contact with if they have washed their hands or double-checking that the pharmacy gave you the correct medication are important steps to ensuring you are getting the best treatment and have the lowest possible risk of an error or injury, infection, or other negative result. The best way to treat the effects of medical malpractice, after all, is preventing it from happening in the first place. We all have an innate curiosity; sating it with knowledge about your healthcare treatments may even save your life in addition to minimizing other adverse effects.
Publications across the country may be categorizing the story of how one William Martinez of Lawrenceville, Georgia died under their “Weird News” or “Wacky News” sections, however the circumstances of his unfortunate death should not detract from the serious nature of medical malpractice. In general, medical malpractice is thought of as when the doctor or healthcare provider messes up something during treatment by prescribing an incorrect medication or errors during surgery such as operating on the wrong part, complications, or even an object being left in the body after an operation. Though surgical error is a major issue in the area of medicine, and one of my professional specialties as an attorney, negligence, whether willful or not, as Mr. Martinez's estate alleges, is also a problem that our courts address.
The suit by Mr. Martinez's estate alleges that his cardiologist was negligent in failing to explicitly tell him to stop all physical activity and take a medical history after determining he was at high risk for clogged arteries. Even if stopping physical activity sounded like an obvious step to the doctor that needed no particular emphasis, it was a set of instructions that, legally and ethically, had to be given, and the failure to take a medical history is perhaps even more important as it may have spotlighted an issue that knowledge of which may have kept Mr. Martinez alive.
A jury agreed, awarding the estate $5 million, which was reduced to $3 million as a sign of recognition that Mr. Martinez bore some of the responsibility for his own death, perhaps on the same belief that stopping physical activity when one has a pending appointment for heart trouble is partially common sense. Despite the difficulties inherent in medical malpractice cases, juries are coming to recognize that occasionally what a doctor or nurse doesn't do is as harmful as what he or she can do, and in this case, failure to take that history unfortunately cost a man his life. Cases where a doctor's negligence is allegedly at fault are particularly difficult to resolve in favor of a patient, but an experienced medical malpractice attorney is able to obtain a fair resolution that holds healthcare providers fully accountable for the harm caused.