The Boston Globe recently reported that the Massachusetts Board of Registration in Medicine “lags well behind its counterparts in most other states, which have leapfrogged past Massachusetts in the transparency of its records on physician performance.”  Unfortunately, too many instances of physician discipline, medical malpractice, and even criminal conduct is shielded from the public because of insufficient measures or lack of attention by the Board.  For example, our firm won a medical malpractice case in 2010 against a physician who caused the death of a 22 year old college student for failing to evaluate his heart condition.  She also was terminated from her place of employment for lack of professionalism.  As pointed out in this Globe article, the record of her verdict was not reported on her profile until two years later, after the Globe contacted the Board to inquire as to why it had not been reported.   This lack of accountability defeats the entire purpose of the disclosure requirement — which is to allow patients to be more educated about the doctors they choose.

To be clear on that point, the purpose of the physician profiles on the web is not to embarrass doctors.  The purpose is to educate patients.  If such instances of malpractice, disciplinary issues, and criminal activity are not reported, the public is led to believe that the heath care system is safer than it really is.  They mistakenly believe that doctors and hospitals thoroughly police themselves.  This mistaken assumption causes the patient to become less of an advocate for herself and her family.    You don’t question the drug that is being given to your daughter.  You don’t ask the right questions about how skilled the doctor is at a particular back surgery.  You don’t inquire about the risks of a gastric bypass operation.  Good and caring doctors know that all patients need to be on their guard and ask the pointed questions.

Because when you put your guard down in a flawed health care system, you are inviting mistakes into your life.

One of my favorite sayings is that the definition of insanity is doing the same thing over and over again expecting a different result.

So, when I am often presented with the question of why medical malpractice lawsuits are necessary, my standard response is that lawsuits force hospitals to recognize medical errors and to be held accountable for them so that the same mistakes do not keep happening over and over again.  I never have a shortage of statistical support for this position.  The latest comes from a study by Daniel Levinson, inspector general of the Department of Public Health.  As reported in the NY Times, this study revealed that hospital employees recognize and report only one out of seven errors, accidents and other events that harm Medicare patients while they are hospitalized.  Apparently, employees either did not recognize the errors, or did not want to report them either out of fear of retribution or because they thought someone else would do so.

I am proud to be one of number of dedicated lawyers who work to improve the health care system by doing what hospitals fail to do, bring errors to light.  Some might argue that attempting to fix the health care system one case at a time is insane, to which I guess I would respond “It takes one to know one.”

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The Department of Health and Human Services imposed new rules this fall restricting how researchers and reporters can use anonymous information the government keeps in the database with more than 196,000 doctors with malpractice or discipline issues.  Spokesman for the Health Resources and Services Administration, Martin Kramer, said in a statement that “the law requires us to protect the confidentiality of identifiable information and only allows us to make the information available in a form that does not permit the identification of individual practitioners.” Although the public wanted more “openness with the information,” which was proposed by President Bill Clinton in the mid-1990′s, the American Medical Association strongly opposed the proposal then and “still opposes the posting of the public file.”

The public has a right to know whether certain physicians have a lengthy history of legitimate malpractice cases, such as an undisclosed California surgeon who has settled 247 medical malpractice cases and numerous doctors who have drug and alcohol problems.  Otherwise, the public may have the misimpression that those physicians are a safe choice for them or their family.  This leads to an uneducated and all-too-trusting consumer.   If a consumer can research the on-line safety ratings of any car they are about to purchase, why shouldn’t patients be able to obtain safety information on physicians who are about to operate on them? 

Certainly, we should not be out to embarrass good, caring, skilled physicians who have an occasional unintentional mistake.  But there is too much at stake . . . namely live . . . to consistently close the curtains on information about particularly dangerous physicians who frequently place patients at increased risk.

This Thursday, October 27^th from 5:00 pm to 7:00 pm, Todd & Weld will host a program launching the MBA’s new Pro Bono Prescription.

This is a pioneering initiative that brings together volunteer attorneys and medical professionals to promote the health and well-being of low-income patients through legal advocacy.

The MBA Pro Bono Prescription will support patients by providing direct legal services to them – services triggered by referrals from health care teams at the local Medical-Legal Partnership site.  This program provides a simple, but important way for lawyers to make a big impact.

Please let me know if you are interested in attending our launch.  Food and beverages to be provided.

To learn more about the program, please go to www.massbar.org/ProBOnoRX

 

When it comes to Transparency, there are sometimes examples of states who not only talk the talk, but walk the walk.  In Oregon, all 58 of the state’s community hospitals have agreed to submit detailed reports of medical errors to the Oregon Patient Safety Commission.   The Oregon Legislature began “the error-reporting initiative…in 2003,” as “a collaborative effort between the state and the health care industry to stop medical errors, which were the cause of at least 34 patient deaths last year.”  By 2007, all but two of Oregon’s 58 hospitals were participating in the program.  Oregon’s Patient Safety Commission adds that over three-fourths of the state’s nursing homes participate. 

Now, perhaps we can get a collaboration of interested groups to push for that kind of legislation here in Massachusetts . . . consisting of those who understand that transparency + accountability = progress.

Health Care for All has created a separate website to help folks who have been harmed by medical care.  The preface of the site is as follows:

“When something goes wrong with our health care, we are not as likely to complain as we would if we got bad service in a store or restaurant. We may worry that speaking up will undermine our care, offend our health care providers, or interrupt our treatment. We may be too angry or too afraid to confront a health care provider, especially if we are still receiving medical care from him or her. We may think, “What difference does it make? The problem has already happened. It’s too late to do anything now.”

In my practice, I confront these reasons for hesitating all the time.  We ask more questions of the mechanic fixing our car, than the surgeon fixing our family member or ourselves.  Health care safety evolves from open, unfettered channels of communication between patient and physician or nurse.  The doctrines of transparency and accountability, that major hospitals are now touting as part of their core, depend on patients being assertive.  Note:  assertive does not mean adversarial, which is how too many people perceive it.

If you want to learn more about why, when, and how to speak up, check out HCFA’s Assertive Patient website.  There is a great deal of valuable information on that site, including the contact person and phone number for the individual at each hospital whom you need to call when something goes wrong.

 

Just Transparency is a new blog dedicated to shedding light, ideas, and justice on matters related to health care safety and medical errors.  The title is a double meaning for this site, which is dedicated to only transparency without the rhetoric, and to arriving at justice through transparency.   There is so much misinformation and static on medical malpractice in the general public, that there is a need to sift through the rhetoric, discover reliable resources, and disseminate the important news and information to those of us who are deeply dedicated to improving patient safety and decreasing medical errors.  I want this site to be trustworthy, honest, and candid.  It may sometimes spark vigorous debate, and if that causes people to want to make a difference and save lives, then it will have served a purpose.  I also hope it inspires innovative ideas and discussions on how lawyers and doctors can work collaboratively to improve the lives of patients and their families.

As a start, I encourage readers to visit this article, which reports about an Indiana Supreme Court ruling that protects physicians and hospitals from additional liability for lost medical records.

The ruling was sparked by a medical negligence lawsuit filed by a mother against Howard Regional Health System in Kokomo, Ind., and two physicians after her son experienced neurological disorders after his emergency cesarean birth in 1999.  The mother sought separate damages against the hospital for losing certain medical records related to her son’s care, alleging that the loss of evidence made it impossible for her to pursue a liability case against her son’s obstetrician.  A physician expert for the plaintiffs who reviewed their case concluded that she could not determine whether the standard of care was met because of the missing information

The lower court found that “It is reasonably foreseeable that a patient could be harmed by a provider’s failure to maintain the patient’s records.” Barring such claims “would leave an unscrupulous health care provider or insurer with no disincentive to destroy evidence that could later subject it to civil liability.”  Yet, the Supreme Court found that no private cause of action exists.

Plaintiff attorneys rightly point out that the ruling discourages accountability and prevents legal remedy to ensure the integrity of the litigation process and prevent the destruction of evidence.

That case is disturbingly familiar to a Massachusetts lawsuit filed by 20 years ago by parents of Dylan Keene against Brigham & Women’s Hospital following the birth of their son.  Because the hospital failed to preserve medical record evidence, the family could not discover who was responsible for their son’s severe neurological injury.  After years of litigation and the dedication of Attorney Chris Milne, the Court awarded $4.5 million to the parents due to the destruction of records by the hospital.  Unfortunately, the hospital appealed and the Supreme Judicial Court later  reduced the award to $20,000 — that’s not a misprint, twenty-thousand dollars — due to the hospital’s charitable immunity cap.

We can guarantee that rulings such as these will not encourage Transparency, but rather cover-up and obfuscation.  If our only resource is legislative action, then patients, lawyers, and doctors should band together to change the law to to deter destroying or losing medical records.

More evidence that apology laws do have an impact was reported in the Wall Street Journal recently.  Researchers Elaine Liu and Benjamin Ho inspected 225,000 malpractice payments between 1991 and 2009 among states with and without apology laws. States with apology laws settled the most serious malpractice cases approximately 20 percent faster and payments decreased by $55,000 to $73,000.   Certainly, it is important for us lawyers to ensure that patients get fair compensation for injuries and that an apology does not short-change them.  However, I feel it is equally important for trial lawyers to accept concepts that help patients get the compensation they need sooner.  If an apology bill permits that to happen by encouraging settlements rather than protracted, expensive, and risky litigation and trials, then the bill deserves strong consideration.

I once completed a deposition of a doctor in a hospital and, as I turned a corner, the insurance defense lawyer for the doctor was talking to the doctor who looked distressed.  The lawyer said rather loudly, “Well, maybe that is what happened, but he didn’t ask you that exact question.”   Seeing me, she stopped talking immediately.  As I left the hospital, I was haunted by what information they did not offer that would help prove that this death of a teenager should not have happened.  This little vignette demonstrates what litigation often becomes . . . a game of catch-me-if you-can, with the patient often losing.

The comments surrounding a new study published in the New England Journal of Medicine confirm the concerns of patient advocates and lawyers.  As stated by Dr. Alan Woodward in the Boston Globe on August 18, 2011, when a medical error occurs, there is a culture of secrecy and fear that causes doctors and nurses not to share information with the patient — the one who has borne the brunt of the mistake.   As a result, as Amitabh Chandra, the author of the Journal study explains, the fact that there are a small number of successful malpractice cases does not mean that most are frivolous, it’s just that it is difficult to prove an injury resulted from an avoidable error.  This is particularly true when the health care providers hold all the information and are not forthcoming for fear of retribution.  Sadly, this culture is unlikely to change.  Therefore, we must examine new approaches.  The “Disclosure and Offer” program explored by the Massachusetts Medical Society and Beth Israel Deaconness Medical Center deserves a good long look.  As I stressed in my comments in the Globe article, and in person to Dr. Woodward and the medical community, this program has promise so long as a diligent root cause analysis takes place, one that seeks to dig deep to unearth the reasons for the mistake that may not be apparent at first blush.  Furthermore, in order to ensure the integrity of this process, the review should be conducted by a third-party independent attorney who is not an employee of the hospital — unbeholden to the institution and unconstrained by politics.  If this were to occur, and if the patient is encouraged to retain an attorney who will make sure that the offer is legitimate and that the patient is not getting short-changed, then the integrity of the program will be assured.  The other key component of this is to reduce medical errors by learning from these complete and open disclosures, which don’t seem to take place unless the fear of litigation is removed.  Change may be hard to accept, but sometimes continuing down the same old road leads to no where.

CMS unveils new website with hospital quality data.

Before selecting a hospital or a nursing home for you or your family, consider the following new tools available to compare.  Knowledge is not only power, it is safer.

The Hill (8/6, Baker) reported in its “Healthwatch” blog that the Centers for Medicare and Medicaid Services “announced new programs Friday to help consumers compare hospitals based on quality.” The agency “launched a new website that allows users to compare not just hospitals, but also doctors and nursing homes.  The site compares facilities based on several criteria, including the satisfaction of previous patients.”  CMS Administrator Don Berwick said, “These efforts are designed to also encourage providers to deliver safe, patient-centered care that consumers can rely on and will motivate improvement across our health care system.”

        CQ (8/6, Reichard, Subscription Publication) reported that CMS “officials said they have also updated data on an existing website devoted to hospitals in an effort to help consumers compare facilities. And they’ve added new information, including how well hospitals guard against infection during outpatient surgical procedures.” In addition, “the agency outlined a fresh set of goals for the ‘QIOs’ — the independent organizations that contract with Medicare to improve the quality and efficiency of care under the program.”

        Modern Healthcare (8/6, Evans, Subscription Publication) reported that according to Berwick, the site “would allow ‘one-stop shopping’ for consumers looking for information on quality or the type of services provided by hospitals, physicians, nursing homes, home care or dialysis providers.”