TorteDeForm

Lee Tilson

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?

Lee Tilson: Author Bio | Other Posts
Posted at 9:38 AM, Sep 20, 2006 in Civil Justice
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Comments

We should just assume the doctor is always guilty and stop wasting our time with trials at all...

If you bothered to look at who gets sued and for what in the medical community (and how insurers can tell the good doctors from the bad), you would note that how likely a doctor is to get sued depends primarly on where in the country he practices and what his specialty is.

Insurance companies how found that a doctor getting sued, even losing the suit, is no indicator of future bhaviour.

Think about that for a minute.

We have a system that is so bad that, barring the occasional truly incompetent and dangrous or dishonest practitioner, BAD doctors (and there are some) and GOOD doctors get sued equally often. They even lose or settle suits at a nearly indistuishable rate.

In short, our system absolutely sucks. It does nothing to wd our bad doctors, and it does a good job of punishing good doctors for bing in the wrong specialty!

I absolutely want people to have access to redress for wrongs! I absolutely want bad doctors removed from the system! I absolutely want to prevent malpractice as much as possible!

Which is why I strongly support tort reform, as our current system does none of that!

Who said all tort reform is about "limiting the rights of victims"?!? What a pathetic strawman!

Posted by: Deoxy | September 20, 2006 2:01 PM

Just out of curiousity, do you have any evidence to offer for the positions you express?

I have never heard of a "wrong site procedure" on a car.

I have never heard of an auto mechanic putting oil in the gas tank.

Why do our cars get better maintenance than we do?

Posted by: Lee Tilson | September 20, 2006 3:32 PM

"I have never heard of a "wrong site procedure" on a car."

Really? Do you now OWN a car, or something?

You've never taken a car to a mechanic and had him "fix" the wrong thing? For that matter, you've never spoken to a woman (though it also happens to men, just less commonly due to the higher expected knowledge level of men about cars) who was ripped off by a mechanic "fixing" something that turned out not to be broken?

Cars HARDLY get better care than humans, and I find it rather telling that you would even consider saying so. And that's without considering several OTHER factors, which make things much harder for a doctor than a mechanic, such as:

-People are composed of exactly 2 models (male and female) that vary somewhat in size and a little in proportion. There are literally hundreds of different models of car, and even dealership mechanics seldom work on the same modle of car twice in a row. Compared to cars, we all look practically identical, especially on the inside.

-Regarding "wrong site procedures", a doctor determines that something needs to be done, then schedules the procedure, often not even performed by himself, some amount of time later (often weeks). Generally, a mechanic determines something needs to be done, then does it himself, right then.

-A mechinic doesn't rely on someone else to prep the car, covering basically the entire body of the car except for the one place he is going to work, for hygenic and germ reasons. In fact, a mechanic generally doesn't have to worry about germs or hygene at ALL (and on some mechanics, it shows).

-In fact, a mechanic doesn't evn have to worry about keeping his "patient" ALIVE the whole time - he can completely disassemble the car, then put it back together (using other parts if desired!) and not worry about a thing.

Even good mechanics screw up from time to time. The difference is that, the vast majority of the time, the only real consequence is that the mechanic has to redo the work for free - he's out time and possibly the money for new parts. When a doctor screws up, people often get very sick, lose body parts, or die.

In regard to your "oil in the gas tank" remark, I've never heard of a doctor putting food in a patient's rectum, which would be about the level of screwup you're talking about on a car. The human body does not analogize well at ALL to a car when it comes to "maintenance".

Oh goodnss, almost forgot. Evidence.

The evidence I cite regarding insurance companies and doctors is based on the questions they ask doctors, and what it takes to get denied coverage (or bumped into the "more expensive" catgory).

As to liklihood of getting sued, um, bsides it being pathetically obvious to anyone who pays attention (obstetricians and neurosurgeons get sued the most, for instance, and some states are actively losing doctors because they get sued so much more than other states), there have been numrous studies on it. No, I don't have a link handy, but they're not hard to find.

Posted by: Deoxy | September 20, 2006 5:06 PM

Hi Deoxy,

Thanks you for your comments.

Given that you just told me that you didn't believe workers compensation was capped at $400 a week for salary benefits on an above post - and that you should be listened to because you have a lot of experience with workers’ compensation -

I really do echo Lee's request that you provide evidence and indeed a few links.


Although it was very fun to read, I don't really understand your post and how it responds to the thrust of

Lee's argument -

Which is that the solution to wrong side operations are better medical safeguards and procedures not less lawsuits or lawyers.

Also please find a link to a study saying how often medical malpractice victims/those injured by doctors actually sue their doctors.

I think that you may be surprised a second time in addition to the new information you learned about the workers' compensation salary cap of $400.

Posted by: Cyrus Dugger | September 21, 2006 2:05 AM

Yay, I was surprised by the anomoly of New York WC rates (there are 50 states, after all). And yes, I do have quite a bit of experience with WC stuff, which is why I found the New York rate so surprising. It's possible that my experience is now a bit outdated, though again, I would be surprised if New York is not abnormally low (for it's cost of living).

You have been DEAD WRONG on several things that you have stated (your entire Liebeck post, for instance, other than the irrelevant points, such as whether she was driver or passenger).

As to who gets sued how often, you either have the facts (and are ignoring them), or you are shooting your mouth off without bothering to look them up. I'm not taking any more time to do your research for you. In fact, you'll b happy to know that I'm not going to bothr coming here anymore, as facts don't seem to get in the way of your beliefs, and I have other ways to spend my time (like looking up the current WC rates in other states).

The reason I even bothred to try with you is that such massive disinformation and dishonesty makes me angry. But you have the right to free speach, and you refuse to look at any contradicting facts, so I'm going to stop wasting my effort.

Posted by: Deoxy | September 21, 2006 11:10 AM

OK, on last thing, just to make my point: I checked about 15 states WC pags, and I found the actual rate on several of them. All of them were higher than New York. Some were more than double. All of them were over double (sopme over triple) when you add a cost of living adjustment. New York is an aberration, not representative of the state of WC nation-wide.

Posted by: Anonymous | September 21, 2006 11:54 AM

Hi Deoxy,

We welcome your comments insight and experience, just not you attacking/abusive tone.

It is perfectly possible to discuss issues with people who you disagree with in a respectful manner.

Often the tone of your posts has fallen short of this mark.

Case in point, you go off about doing research for other people when I had to do the research for you and directly led you to the site which showed that your udnerstanding of workrs comp amoutns was wrong.

That’s fine with me, I'm happy to do it, but don't turn around and be critical when I ask you to find some facts.

Indeed, I already have the information supporting my arguments and don't actually need "help", I asked you to bring what you could find to the blog on the issue because I wanted to see if you could find support for a contrary view - and I didn't think you could find any support to refute my own.

In any event, if this is really a conversation that is attempting to be productive, then I think there needs to be less of a focus on being right about everything you say - as opposed to finding correct answers. I am sure both sides of the debate can learn from the observations of the other.

I have to say I just don't agree with you that my McDonald's post is in some way wrong. You say the facts don't matter, but the ENTIRE post is about how people have been misled about the facts!

However, as you said - it's a free (although increasingly less so) country, and you're entitled to your view.

Deoxy, come or go as you please to tortdeform.com your insights are always welcome, but in the future, I ask that you please write less attack and more substantive comments engaging with the issues.

McDonald's post below

Why You Should be Able to Sue McDonald's if You Spill Coffee on Yourself
http://www.tortdeform.com/archives/2006/09/why_you_should_be_able_to_sue.html

Posted by: Cyrus Dugger | September 21, 2006 11:58 AM

The truth is that it is difficult to maintain a blog that is legitimate and meritorious. Disagreements should be welcomed, personal attacks should be discounted. If you do not like the info one has provided...then give something that contradicts them. Do not ask others to prove their opinions,... just let them express. The need and desire for adequate background info and/or citations will be met by the demand of those who contribute. Personally, although I may not agree, I think Deoxy provokes the kind of conversation and dialogue that is needed and warranted.

Posted by: john | September 21, 2006 10:22 PM

Deoxy,

Can you forward one practical suggestion for reducing medical injuries?

The kind documented in the Institute of Medicine report, To Err Is Human?

Posted by: Lee Tilson | September 21, 2006 10:28 PM

Can you forward one practical suggestion for reducing medical injuries?

I can: non-economics damages caps in medical malpractice cases reduces infant mortality significantly versus states that have unbounded damages. The increase in availability of doctors who aren't hounded from practice by liability fears makes prenatal care more available to underserved minority populations. See the work of Klick and Stratmann.

Funny you should mention the IOM report, which found precisely what reformers complain about: the liability system does a tremendously poor job of separating malpractice from bad luck, and in fact was not statistically significantly different than flipping a coin, with innocent doctors being no more likely to win their cases than those who IOM thought had committed errors.

Posted by: Ted | September 22, 2006 5:18 PM

There are 357 PubMed articles by a variety of Stratmanns. Which one?

I have not been able to find the article to which you refer.


I have found several Klicks as well. Is this the Klick to which you intended to refer?


http://www.ncbi.nlm.nih.gov/entrez/query.fcgi?db=pubmed&cmd=Retrieve&dopt=AbstractPlus&list_uids=16700120&query_hl=9&itool=pubmed_docsum

or this:

http://www.ncbi.nlm.nih.gov/entrez/query.fcgi?db=pubmed&cmd=Retrieve&dopt=AbstractPlus&list_uids=15842084&query_hl=11&itool=pubmed_docsum

Posted by: Lee Tilson | September 22, 2006 8:32 PM

Are these the guys to whom you were referring?

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=453481

Their conclusion:

"We show that some malpractice law reforms have lowered the level of care provided, as indicated by an increase in infant mortality. This suggests that some of the tort reforms lead to worsening health outcomes."

How do you believe this supports your position?

Posted by: Lee Tilson | September 22, 2006 9:06 PM

Some tort reforms, such as collateral-source offsets, have adverse effects. But I don't support collateral-source offsets; I'm not reflexively anti-lawsuit. I was talking about non-economics damages caps, which do reduce infant mortality.

Posted by: Ted | September 23, 2006 12:54 PM

Ted writes:

"Some tort reforms, such as collateral-source offsets, have adverse effects. But I don't support collateral-source offsets; I'm not reflexively anti-lawsuit. I was talking about non-economics damages caps, which do reduce infant mortality."

Forgive me for asking for your data, but I must. You are leading me to some interesting information.

Can we at least agree that the goal should be minimizing injuries? Can we start there?

Posted by: Lee Tilson | September 23, 2006 10:56 PM

Tilson writes "Can we at least agree that the goal should be minimizing injuries? Can we start there?"

See? This is precisely the problem with medical malpractice litigation: the anti-reformers argue that the goal should be minimizing malpractice injuries rather than maximizing health-care outcomes and, because of this, end up with results that drive doctors out of business, even though the end result is worse medical care for everybody, with the poor worst affected.

I've written and spoken comprehensively on the subject of medical malpractice, and it's not a productive use of my time to rehash that here for a dozen readers. If you have something to say about what I've written on the subject, please do so, but if you're going to ask me to repeat myself instead of taking the time to look it up, I'm going to have to decline.

Posted by: Ted | September 24, 2006 1:08 PM

Ted, I believe it's a good thing if the tort system is driving bad doctors out of business. Would you disagree?


And isn't it true that the low reimbursement rates insurers pay doctors is a bigger problem for good doctors than malpractice lawsuits & malpractice premiums?


Further, isn't it impossible to maximize healthcare outcomes if you don't minimize malpractice injuries? The old "First, do no harm" maxim even recognizes that fact.

Posted by: Justinian Lane | September 24, 2006 3:32 PM

Hi Ted,

How can you come over to this site, engage in a discussion, and then when asked to support your assertion claim that you are too busy to do so?

You certainly weren’t too busy to make your point on this site, I don’t see how you can then be too busy to back it up with facts when challenged about your views.

That just doesn't make any sense.

Cyrus

Posted by: Cyrus Dugger | September 24, 2006 6:58 PM

"Ted writes:

"Tilson writes "Can we at least agree that the goal should be minimizing injuries? Can we start there?"

See? This is precisely the problem with medical malpractice litigation: the anti-reformers argue that the goal should be minimizing malpractice injuries rather than maximizing health-care outcomes and, because of this, end up with results that drive doctors out of business, even though the end result is worse medical care for everybody, with the poor worst affected.

I've written and spoken comprehensively on the subject of medical malpractice, and it's not a productive use of my time to rehash that here for a dozen readers. If you have something to say about what I've written on the subject, please do so, but if you're going to ask me to repeat myself instead of taking the time to look it up, I'm going to have to decline.

Posted by: Ted | September 24, 2006 01:08 PM "

I agree with maximizing outcomes. That is not the core of my position expressed here. Preventing injuries seems to me to be consistent with maximizing outcomes.

Ted, do you really disagree with "first do no harm"?

What suggestions do you have? What suggestions does anyone have?

Lawsuits are great learning opportunities, if we are willing to learn them.

Best

Lee

Posted by: Anonymous | September 24, 2006 7:38 PM

The problem is that the system is broken and requires repair.

Who am I and how do I know.
.. I am a victim of malpractice and lost my sister to malpractice. So you would quickly assume that you must know my position on the matter...but not so fast because you are likely wrong.

I suffered a stroke because of a dentist’s failure to follow the standard of care - I received not one red cent for my troubles and his failings. Five years to the day from my stroke my sister died at the age of 36. My sister died as a result of a doctor yet again failing to follow the standard of care AND misrepresented treatment options - although I was the administrator of her estate I did not profit from the litigation and the settlement made was more of an insult in terms of dollars but that was not the intention of the litigation. The intent was to remove the bad doctor from the system. He did loose his job, left the country and then snuck back in and is practicing again elsewhere.

I now spend my days doing what I think is one step in helping to reduce malpractice - helping educated patients in their condition and helping them make good health care choices.

Patients need proper education so that they may ask proper questions of the medical professionals. The medical profession needs to help educate patients so that their is a clear understanding of options, treatments, potential outcomes, and help them find the answers to questions that they may not know themselves. Medical professionals do not know everything - they need help too!
The other two big players here are the insurance companies who need to remember their role and NOT interfere with patient care and attorney who need to remember this is about righting a wrong not cashing in, and in my experience that is how the majority of GOOD attorneys view this field of law.

It is very easy to call names like "anti-reform" and claim that you know how to fix the problem by limiting compensation to those who have been harmed, but that is not the way to solve the real problem. The real problem is how to stop the mistakes from happening in the first place. Secondly how to compensate fairly when an error has been made and lastly how to remove problem doctors in a time efficient manner.
Together we can make a positive change - but name calling is not the way to accomplish something that means a great deal to all of us - improving the quality of our lives and of the lives of those we love.

Think outside the box...we have destroyed the box we are in so we really have no other choice!

Posted by: Lisa | September 25, 2006 1:31 PM

I was amazed at Deoxy's rhetoric in attacking the efficacy of the civil justice system in handling med mal lawsuits.

I suggest he read a recent article in the New England Journal of Medicine entitled "Claims, Errors and Compensation Payments in Medical Malpractice Litigation" (Studdert et al, May 11, 2006).

The authors reviewed a random sample of 1452 closed malpractice claims from 5 liability insurers to determine whether a medical injury did in fact occur, and if so, whether it was caused by a medical error.

The authors found that for 3% of the claims, there were no verifiable medical injuries. Another 37% of the claims had injuries but no evidence of errors. These claims usually resulted in no compensation (74% had no payouts). Thus, the civil justice system usually worked well: in the words of the authors, "Claims that lack evidence of error are not uncommon, but most are denied compensation."

The study also found that 73% of the claims involving injuries and medical error received compensation. The other 27% of the cases involved payment in the absence of documented injury (o.4%), payment in the absence of error (10%), and no payment in the presence of error (16%). Thus, the civil justice system generally got it right, but when mistakes were made, those mistakes were far more likely to favor negligent doctors than undeserving patients.

The authors concluded "our findings suggest that moves to curb frivolous litigation, if successful, will have a relatively lim,ited effect on the caseload and costs of litigation. The vast majority of resources go toward resolving and paying claims that involve errors."
Geno

Posted by: Gene De Santis | September 26, 2006 11:03 AM