Preventing Wrong Site Surgery
As a plaintiff's medical malpractice attorney, I had grown numb to the defense claim that: "This case is not really malpractice." Every defense attorney repeats this line in every case.
I even heard it from an attorney defending a case in which a depressed newborn, who was alive when we litigated the case many years later, survived having spent the second, third and fourth hours of his life in the morgue. Delivered by an unlicensed foreign medical graduate and an intern, this child was presumed dead when the initial resuscitation failed to meet their expectations. He was taken to the morgue. When the father refused to sign an autopsy permit before he saw his child, he was taken to the morgue. The child was still breathing. The child survived.
"Lee, why don't you go work on one of your good cases. This is not one of them." The defense attorney tried to persuade me that the case was not meritorious. It was the most meritorious case on which I had the privilege of working. But now, I have to admit, the attorney did have a point. This was not one of those "wrong site" surgeries where a surgeon removes the wrong eye or wrong kidney. This was not a case where the patient had been given the wrong medication. In my law practice, I had not met attorneys who had handled such cases. Most of my cases involved egregious errors of judgment such as a team of providers who missed ten or twenty warning signs of an impending catastrophe. Did those "wrong site" or "wrong medication" cases really exist?
Those questions were answered, rather emphatically, by the 1999 report To Err Is Human issued by the Institute of Medicine. Most medical malpractice attorneys knew that medical malpractice was rampant. The many large verdicts and high malpractice premiums demonstrated the problem. What most malpractice attorneys did not suspect was the prevalence of the most elementary forms of malpractice: performing surgeries on the wrong patient or at the wrong site, giving a patient the wrong medicine.
Money, energy, and IQ points have focused on these and other types of "medical errors" for more than five years. What are the results?
The 1999 estimates of patient deaths from medication errors were 7,000 per year. The follow up report issued this past summer indicates:
"At least 1.5 million Americans are sickened, injured or killed each year by errors in prescribing, dispensing and taking medications."
How many wrong site surgeries occurred last year? A recent article by Marc Kaufman in the Washington Post reports 84 wrong site surgeries.
"I can assure you that this is just the tip of the iceberg," O'Leary says. "Some hospitals are reporting everything and some hospitals don't report anything at all."
Should we take comfort from the efforts since the 1999 IOM report that the problem is being effectively addressed?
"It's getting worse," says Dennis O'Leary, who heads the non-profit Joint Commission on Accreditation of Health Care Organizations, which inspects more than 15,000 hospitals and surgical centers nationwide and sets patient safety requirements and guidelines."
Other reports estimate 4,000 wrong site surgeries each year. Governing magazine, Medical News Today, and the Chronicle of Higher Education support the 4,000 figure.
What is the solution to these problems? How can we prevent 1.5 million injuries each year from wrong medications? Irrespective of the actual number of wrong site surgeries per year, whether 84 per year, 4000 per year, or some number between those two, how can we eliminate this problem?
Shall we bar the victims from access to the courts? Shall we take away the right of the victims? Will that protect the victims? Will that protect us from wrong site surgeries? Will that protect the most vulnerable, our children and grandparents, from wrong site surgeons? Who should pay their medical bills?
How does limiting the rights of the victims help?
What do you recommend?