Safety is the child of transparency and disclosure. The new medical negligence laws that are part of the Massachusetts Health Care Reform Act strongly promote that maxim. These new laws are described succinctly as the “Apology Law” and “Notice Law.” As vice-president of the Massachusetts Bar Association, I had the opportunity to work with other trial attorneys and the Massachusetts Medical Society in drafting this legislation. These laws are the result of an unprecedented collaboration between the medical and legal communities following numerous meetings over the course of a year that included dramatic last-minute negotiations. These statutes, which are described more fully in the attached article I wrote and which was published by the American Society of Professionals in Patient Safety, encourage transparency and disclosure when medical errors occur.  They thereby pave the way for improvements in patient safety and earlier resolution and compensation for those who have been harmed. They also create means for both the health care provider and the patient to begin early emotional healing following medical errors and injuries.  I invite your questions and comments.

It is common knowledge that there is a hierarchy in medicine. Nurses are on the front line, with doctors at the top.  This is necessary for an institution to run efficiently.  This hierarchy is supposed to allow nurses to go up the ladder when they are presented with a patient who needs immediate attention by someone with a different skill set. Nurses need to be comfortable with this hierarchy for this system to work right.  Questioning or expression of concern by a nurse to a physician should be welcomed, not challenged. Unfortunately, this is not how it works.

Nurses are reticent to challenge doctors out of fear of receiving a scolding or retribution. Even when nurses raise concerns about patients to doctors, they are often treated as if they are overreacting. Meanwhile, the patient needs attention, not a power play, and suffers the potential for harm in this dynamic.  (BTW, if nurses are afraid to question doctors, consider how the patients feel.)

This pitfall was brought to light in a recent New York Times article by Theresa Brown, an oncology nurse.  She reports that “Modern health care is complex, highly technical and dangerous, and the lack of flexible, dynamic protocols to facilitate communication along the medical hierarchy can be deadly.”  She then reminds us that preventable medical errors kill 100,000 people a year.

Hospitals disseminate charts and graphs depicting the hierarchy.  However, too few explain to the staff how this is really supposed to work.  One example that Ms. Brown references of an institution that does teach this is the University of Virginia.  There, medical and nursing students are taught to respect each other’s areas of expertise and contributions to the shared mission.

We have a long way to go before this way of thinking become universally accepted in medicine.  In the meantime, patients must be aware of this pitfall lest they rely on their nurses to be their advocates.  Some may have been shamed into submission to actually do so.

It is an irrefutable maxim that fairness is the child of transparency and disclosure.

The new medical malpractice laws that are part of the health care reform act signed by Governor Patrick adhere to that maxim.  Certainly, the new laws create many questions and concerns about the impact they will have on patients and their legal rights when harmed by medical errors.  Some are concerned that this law will act as yet another impediment to achieving justice.  Those of us who represent victims of medical negligence are already too familiar with the pain of our clients being denied justice – they feel as though they have been betrayed by both the legal and medical systems.  For this reason, when the Massachusetts Bar Association and Massachusetts Academy of Trial Attorneys observed that more unjust obstacles were slipped into the draft health care bill last year, we took an unprecedented measure.  We reached out to the Massachusetts Medical Society to see if we could work out a compromise.  We invited them to sit down with us to hear our concerns.  They listened thoroughly and worked diligently with us over a period of seven months to hammer out the new law.  The resulting law is one that puts patients first and promotes patient safety.

Importantly, it is also a law that enhances, not inhibits, patient legal rights.  First, it requires that when an error or mistake occurs, that the health provider must inform the patient of what happened.  Consequently, any law that requires disclosure of mistakes to the patient is something to exalt.  It codifies what the American Medical Association Code of Ethics and Joint Commission have not been able to achieve on a wide spread basis, full disclosure.

Some are concerned that the bill allows for an apology and admission of mistake or error to be excluded from evidence at trial.  However, additional language was added by the MBA and MATA that ensure that the truth ultimately comes out at trial.  Before explaining that provision, however, it is important to understand the history.

For years, the MBA and MATA argued against the original version of the apology bill at State House hearings and during private meetings with legislators.  The original bill stated that if the physician apologized and informed the patient of the “mistake and error” such apologies and admissions would not be admissible in evidence, EVER!  The consequences of such a law would have been devastating.  The best and often only source of information as to what happened to a patient is from the health care provider himself.  Medical records almost never tell the full story.  As a result, under the original language the health care provider would have been able to disclose what happened in detail and have that admission excluded forever, contravening well established rules of evidence regarding admissions by a party.  By having that excluded, he would never be held responsible and the patient would not be able to obtain compensation for a legitimate admitted mistake that caused actual harm.  As my young son who attended one of the hearings at the State House that I testified at said, “That would be like breaking your neighbor’s window with a baseball, but only admitting to it if you don’t have to pay for a new one.”  It also would have been the final nail on a coffin of truth and transparency.

The single most important part of this bill, the brain child of Leo Boyle, is that if the health care provider OR HIS EXPERT, in litigation deviates from the truth that was told to the patient, then the admission of the apology AND the mistake is admissible.  In short, the health care provider must stick to the truth, always. It is easy to see how this law will encourage more settlements.  Previously, the system permitted if not encouraged obfuscation and deflection.  It fostered a culture of “deny and defend” that permeated all health care facilities.   This new law requires full disclosure and prohibits gamesmanship later.  This law forbids attorneys and insurers for health care providers from defending the  indefensible cases, and licenses them to facilitate just resolutions for deserving victims.

Perhaps most important is the fact that this law will surely improve patient safety.  Those of us who represent patients are familiar with the Institute of Medicine conclusion from 1999 that errors cost nearly 100,000 lives per year.  Recently,  Sanjay Gupta, Chief Medical Correspondent for CNN, reported in the New York Times that the number is probably closer to 200,000 lives per year.  Less well known is that medical errors resulting in harm and not death cost Massachusetts nearly $260 million per year, which cost is borne by tax payers because the vast majority of these people do not sue.  Meanwhile, 90 percent of medical errors are not reported by hospitals.   As reported in the NY Times in January, a 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.

We hope and expect that this new law that requires full disclosure will nurture an environment of learning, not secrecy, to prevent the same types of errors from happening to someone else.

This law is a bold move by many brave physicians, legislators, attorneys and the Governor who saw an opportunity for Massachusetts to forge ahead on new open frontier of justice and safety, instead of traveling down the same old pot-hole filled road blocked with obstacles to truth.

Creature bowl mural (Photo credit: Nick Sherman)

The recent death of Rory Staunton, a 12 year old boy from Queens, reveals a terrifying secret lurking beneath the health care system, like some big nasty sewer creature in a horror movie.  This creature, however, is invisible, although it exists everywhere right before our eyes each time we enter a hospital; it’s called fragmented, unsupervised health care.   This time, it attacked young Rory.  On a Wednesday, Rory suffered a scraped elbow and open cut from a fall in a school gym.  The open cut led to a septic infection, septic shock and his death four days after getting his cut.  As the New York Times reported this Sunday, “Rory might have been saved by a swift dose of antibiotics but instead perished in a perfect storm of false assumptions, overlooked data, and overburdened doctors.”  Concerning lab values and vital signs were ignored, not shared among the providers, and not conveyed to the parents.  Due to this fragmented care, his vomiting, 102 degree fever, rapid pulse, and high white blood cells (all red flags for infection) were ignored by different physicians.

Fragmented unsupervised care attacks unsuspecting victims, like Rory, seemingly at random.  However, if you understand where and how it hatches, you can intervene and save yourself or your loved ones before it causes devastating medical errors.  It is spawned by disjointed care when no one health care provider “owns” the patient, leading to poor transfers of care from one provider to another.  It is grows substantially in size during the month of July, as Theresa Brown, a nurse, wrote in the New York Times also on Sunday, when new graduates from medical school start learning how to be doctors, the so-called “July Effect.”  These interns are “calling the plays, but they have little real knowledge of the game,” reported Nurse Brown.  It then thrives when patients (or parents of patients) give over complete control to health care providers — afraid to intervene or be painted a “trouble maker” when asking too many questions.

The mission of this blog is simply to encourage patients to be better advocates.  If is prevents one person from being harmed by arming him or her with information, which then incentivizes them to be more involved in their health care decisions, then it will have served its purpose.  Previous posts have conveyed the very high likelihood of dying or being severely harmed by medical errors in today’s system.  It has also referred people to non-profit institutions whose mission is to prevent medical errors.  Hopefully, through this information and these tools, we can end this tale the same way all horror movies end, with the death of the dreadful monster by intelligent citizens who intervene and attack that which makes it so powerful.

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.