April 5th, 2007

Medical Malpractice Is Increasing In Many Hospitals

If you thought that increases in technology have caused medical errors to drop, then you would be wrong.

A new study out today makes these findings based on data from 2003-2005:

  • Approximately 1.16 million total patient safety incidents occurred in over 40 million hospitalizations in the Medicare population, which is almost a three-percent incident rate. These incidents were associated with $8.6 billion of excess cost during 2003 through 2005.
  • More than half (10 of 16) of the patient safety incident rates studied worsened from 2003 to 2005. These ten indicators worsened, on average, by over 11.5 percent while the other six indicators improved, on average, by eight percent.
  • The total patient safety incident rate worsened by an additional 2.0 incidents per 1,000 hospitalizations in 2005 compared to 2003.
  • The [Patient Safety Indicators] with the highest incidence rates were decubitus ulcer, failure to rescue, and post-operative respiratory failure. Failure to rescue improved six percent during the study period, while both decubitus ulcer and post-operative respiratory failure worsened by almost 10 and 20 percent, respectively.
  • Of the 284,798 deaths that occurred among patients who developed one or more patient safety incidents, 247,662 were potentially preventable.
  • Medicare beneficiaries that developed one or more patient safety incidents had a one-in-four chance of dying during the hospitalization during 2003 to 2005.
  • There were wide, highly significant gaps in individual PSI and overall performance between the Distinguished Hospitals for Patient Safety and the bottom ranked hospitals.
  • Medicare patients in the Distinguished Hospitals for Patient Safety had, on average, approximately a 40-percent lower occurrence of experiencing one or more PSIs compared to patients at the bottom ranked hospitals. This finding was consistent across all 13 PSIs studied.
  • If all hospitals performed at the level of Distinguished Hospitals for Patient Safety, approximately 206,286 patient safety incidents and 34,393 Medicare deaths could have been avoided while saving the U.S. approximately $1.74 billion during 2003 to 2005.

Patient safety is defined in this report as care that is “freedom from accidental injury due to medical care, or medical errors.”

(hat tip to Day on Torts)


March 28th, 2007

Medical Malpractice Insurers Price-Gouged Doctors During This Decade

This comes from Americans for Insurance Reform, released today:

NEW YORK — Americans for Insurance Reform (AIR) announced today the release of Stable Losses/Unstable Rates 2007, a new study that examines fresh insurance industry data to determine what caused the most recent medical malpractice insurance crisis for doctors. The study by AIR, a coalition of over 100 consumer and public interest groups representing more than 50 million people, finds that the insurance crisis that hit doctors between 2001 and 2004 was not caused by claims, payouts or legal system excesses as the insurance industry claimed. Rather, according to the industry’s own data:

  • Inflation-adjusted payouts per doctor not only failed to increase between 2001 and 2004, a time when doctors’ premiums skyrocketed, but they have been stable or falling throughout this entire decade.
  • Medical malpractice insurance premiums rose much faster in the early years of this decade than was justified by insurance payouts.
  • At no time were recent increases in premiums connected to actual payouts. Rather, they reflected the well-known cyclical phenomenon called a “hard” market. Property/casualty insurance industry “hard” markets have occurred three times in the past 30 years.
  • During this same period, medical malpractice insurers vastly (and unnecessarily) increased reserves (used for future claims) despite no increase in payouts or any trend suggesting large future payouts. The reserve increases in the years 2001 to 2004 could have accounted for 60 percent of the price increases witnessed by doctors during the period.

There is much more at the links, including a copy of the study.
(hat tip to TortDeform)


March 27th, 2007

Practice Tip: One Way to Cross-Examine The Attractive Doctor

A recent British study confirmed something most of us all know intuitively:

Juries trying criminal cases are likely to be more lenient when the person in the dock is physically attractive, psychologists say.

So how do you level the playing field if, for example, you have an attractive doctor as a defendant in a medical malpractice case? And by attractive, I mean not just physically, but someone with good credentials who makes an impressive personal appearance by their ability to speak well. This is important if the patient chose the doctor.

The answer is not to knock them down, but to build them up in opening statements and jury selection (if your jurisdiction allows).

Tell the jury they will like the defendant. After all, your client chose this doctor for surgery, right? Trusted him/her. Kinda like Marcus Welby. Therefore, it stands to reason, the jury will too.

This does a few things: First, you have been dead honest. It is unlikely the jury expected you to “confess” this thing, but frankly, they will likely see it anyway if defense counsel is even mildly competent. Trying to tar a physician at the outset that your client previously trusted has enormous potential to backfire.

The jury also now has very high expectations for the doctor. With the bar set so high, any slip-up or contradictory testimony is likely to be viewed in a harsher light. Assuming you have a solid case to take to trial, this doctor-defendant will also lay out the standards of care (while they still trust him/her) before being confronted with the deviations from care, the sloppy notes, the rushed surgery, failure to read the x-ray, or contradictions from deposition testimony.

And there is something else at play here. The doctor was trusted, and the trust was betrayed. Betrayal often unleashes a flood of powerful emotions.

The instinct for confrontation must, at times, be avoided, and saved for those few special moments when the witness, who has now been built up, strays from the straight and narrow. And if that happens, it will have far greater impact than if you had simply tried to trash the doctor from the outset.

(Eric Turkewitz is a personal injury attorney in New York)


March 19th, 2007

Misdiagnosis Occurs In 15 To 20 Percent Of All Cases

Misdiagnosis occurs in 15 to 20 percent of all cases, according to a new book out by Dr. Jerome Groopman called “How Doctors Think.”

In an op-ed in today’s Boston Globe (The Mistakes Doctors Make) based on the book, Dr. Groopman writes:

Why do we as physicians miss the correct diagnosis? It turns out that the mistakes are rarely due to technical factors, like the laboratory mixing up the blood specimen of one patient and reporting another’s result. Nor is misdiagnosis usually due to a doctor’s lack of knowledge about what later is found to be the underlying disease.

Rather, most errors in diagnosis arise because of mistakes in thinking.

In the piece, he deconstructs how a tumor was missed for years in a woman who had just given birth.

The book is reviewed at this link to Time. The Time lead is for an overlooked tumor in an 8-year old. According to the review,

[Groopman] learned that about 80% of medical mistakes are the result of predictable mental traps, or cognitive errors, that bedevil all human beings. Only 20% are due to technical mishaps–mixed-up test results or hard-to-decipher handwriting–that typically loom larger in patients’ minds and on television shows.

The result of Groopman’s journey is How Doctors Think (Houghton Mifflin; 307 pages), an engagingly written book that is must reading for every physician who cares for patients and every patient who wishes to get the best care. Groopman says patients can prompt broader, sharper and less prejudiced thinking by asking doctors open-ended questions and learning to identify some of their common thinking mistakes.

While some have a knee-jerk reaction to the attorneys who initiate suit on behalf of patients injured by malpractice, it’s nice to know that some doctors are thinking about the actual problem. Because shooting the messenger, a time-honored way of changing the subject, is a lousy way of fixing a problem.

(Globe op-ed via David Williams at Health Business Blog)

Addendum 3/21/07Dr. Groopman on The Colbert Report.


March 15th, 2007

Don’t Get Sick On The Weekend

Medical malpractice attorneys will not be surprised. A study released yesterday in the New England Journal of Medicine finds a higher death rate for people who go the hospital for heart attacks on the weekends than during the week. The reason is that fewer invasive cardiac procedures are performed.

The study tracked over 200,000 patients and found about a 1% difference. And the reason for the difference, the authors suggest, may be due to a difference in staffing levels.

These staffing concerns do not surprise me. I’m not sure if it’s been studied, but I would bet the worst time to go a hospital is the July 4th weekend. And I think few doctors would disagree. New residents are created on July 1st, and existing residents move up a year to new responsibilities. Match that with many attending physicians taking off time for a holiday week, and a problem is created.

When hospital staffing levels drop, patients suffer.