Could doctors and lawyers work together to eliminate needless suffering?

Secrecy fuels hospital errors: could doctors and lawyers work together to eliminate needless suffering?

Edith Kermit Roosevelt

Secrecy Fuels Hospital Errors

A week-old baby boy is cooked to death in an old-style incubator that is easy to misuse. Yet medical literature carries no warnings, so other hospitals are not discouraged from using it. Medical malpractice cases involving incubators are usually settled in secrecy so they cannot achieve their full potential in preventing medical errors.

A neurosurgeon operates on the wrong side of a teenage girl’s brain. As a result, good tissue is removed instead of the child’s tumor and she suffers a permanent loss of memory. Yet there are no warnings by the manufacturer of the scanning device the doctor used. In fact, the Washington Post reported that attempts by the child’s attorney to place warning advertisements about the equipment was rejected by half a dozen medical journals.

A three-month-old baby stopped breathing and perished in an apnea monitor. Prior to this incident the hospital had ignored many warning memos about it from its own biomedical engineers, according to hospital files.

These cases cited recently by the National Bar Association Journal are only the tip of the iceberg, according to physicians and health officials concerned by the unnecessarily high rate of medical errors. As many as one out of five of hospital stays, or 20 percent, are marred by malpractice, according to James Todd, Executive Vice President of the American Medical Association. (Editorial, Medical Malpractice Prevention, September-October 1986.)

Statistics show that 80 percent of malpractice claims arise in a hospital setting, but, for whatever reason, only a small number of severe injuries result in claims. According to a Department of Health and Human Services Commission on Medical Malpractice, as few as one out of 15 severe injuries from malpractice results in a claim being made.

If physicians and attorneys know only too well about what appears to be an epidemic of carelessness or medical errors, why is nothing done to stop it? According to James F. Holzer, Vice President of Loss Prevention and Underwriting for the Risk Management Foundation of the Harvard Medical Institutions, “A vigorous risk management program for all participating physicians and institutions is an essential ingredient of success.”

However, this is not easily accomplished, according to an address by Jack H. Olender, District of Columbia trial attorney, to the Department of Pediatrics, Fairfax Hospital, Arlington, Virginia. Olender told the Hospital’s Seminars in Pediatrics:

“A blanket indictment can be made of most hospitals for failing to use past mistakes to teach staff and trainees how to avoid error. On the contrary, there seems to be a Watergate mentality to cover up mistakes so that even the staff does not know about them. We profit from our mistakes, but only when we acknowledge them and act to prevent their recurrence.”

“Cover-ups” cited by Olender include a major teaching hospital in Washington, D.C., with a written policy for destruction of fetal monitor tracings. Also, in the nation’s capital is a teaching hospital where the department chairman states that there is no procedure or policy in the hospital whereby a resident physician can question the quality of care being rendered by a private attending physician. Nor can the resident physician receive assistance from hospital officials when the resident believes the private doctor is doing something grossly wrong.

What, then, can be done to obtain effective risk management to protect medical consumers? Olender, who says his firm has far more malpractice cases than it can handle, would like physicians and attorneys to work together. His suggestions for systematic reform to make the delivery of medicine safer include the following:

1. For the legal profession: As part of a “preventive law” approach, a code of professional responsibility could make it unethical for an attorney to be a party to secrecy in the settlement of a malpractice case. Thus, the availability of information on medical errors would help to prevent their future recurrence.

2. For hospitals and their staffs: They could collaborate with the legal profession by using their involvement in malpractice cases to obtain data for publication in medical literature and for discussion with hospital personnel and at national seminars. This would help to prevent other physicians and hospitals elsewhere from falling into the same trap.

3. For the press: The news media might crack secrecy agreements between attorneys and health providers by bringing suits under First Amendment rights or, where government agencies or funds are involved, filing Freedom of Information suits.

4. For consumers: We can advocate any necessary means to immunize hospital boards and staff from liability for “good faith” revocations and limitations of staff privileges. This should help to weed out the small number of “bad apples” who account for a disproportionate number of serious medical errors.

COPYRIGHT 1991 Vegetus Publications

COPYRIGHT 2004 Gale Group