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Kevin Duffan
Kevin Duffan
Attorney • (800) 752-0042

Medical Malpractice Victims Must Report Incidents, But Not to Receive Compensation

4 comments

Every day, according to one of the latest and most carefully calculated estimates, thousands of Americans suffer injuries or die as a direct result of preventable medical mistakes. Errors made by doctors, surgeons, nurses and pharmacists range from misdiagnosing life-threatening illnesses and performing surgery on the wrong part of the body, and dispensing a prescription drug in the wrong dose or to the wrong patient to neglecting the physical needs of people experiencing health crises.

Writing in the September 2013 issue of the Journal of Patient Safety, researcher John T. James concluded from a meta-analysis of earlier studies that “a lower limit of 210,000 deaths per year was associated with preventable harm in hospitals. Given limitations in the …¬†incompleteness of medical records …, the true number of premature deaths associated with preventable harm to patients was estimated at more than 400,000 per year. Serious harm seems to be 10- to 20-fold more common than lethal harm.”

As shocking as an average of more than 300,000 patients deaths in hospitals seems, that greatly understates the problem by excluding individuals who pass away due to medical malpractice at home and in other non-health care settings. The prevalence of the problem also demands concerted efforts to find solutions.

http://depts.washington.edu/anesth/images/care/uwmc-surg-prep/surgeon-marking.pngThe first step toward eliminating medical mistakes consists of identifying each one. A survey conducted by a group from the Harvard School of Public Health recently revealed that patients understand this implicitly. According to The Public’s Views on Medical Error in Massachusetts, published in December 2014, the top reasons individuals report instances of medical malpractice that caused them harmed or injured or killed a loved one were:

  • Wanted to prevent the same error from happening to someone else¬†— 90 percent
  • Wanted someone to help cope with the problems caused by the error — 68 percent
  • Were angry and wanted to get it off their chest — 40 percent
  • Wanted the person responsible to be punished — 31 percent
  • Wanted compensation for harm caused by the error — 17 percent

This is a significant message for those, including many state and federal lawmakers, who constantly call for new restrictions on victims’ rights to report and seek compensation for medical malpractice. The goal of such cases is rarely to maximize financial gain, no matter what hardships a preventable medical mistake inflicted. Rather, the intent of calling negligent health care providers to account is to improve medical care, surgery and pharmacy practice for everyone.

EJL

4 Comments

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  1. Kevin Duffan says:
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    Dr. Cox, I find it interesting that you say the contentions in my article are ridiculous because I suspect you don’t talk to dozens of people each month that want to file a suit against their doctors for something that has gone wrong. I do. One of the things that those individuals say to me the VAST majority of the time is that “it’s not about the money… they just want to make sure that it doesn’t happen to someone else.” Whether you believe that or not is your choice, but I talk to these individuals, and you do not.

    We take great pride in being extremely selective with the cases we take. It is only after at LEAST one, and often multiple other practicing physicians have looked at our case and agree that there has been a deviation in the standard of care that we go forward.

    Our jury system is designed to let citizens of our community sit in judgment of someone else. Both sides have a fair opportunity to present their case, so why should a jury be limited in what they determine is fair or reasonable compensation? Do you take the position that no doctor could ever commit malpractice, and every mistake is acceptable?

  2. Kevin Duffan says:
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    Many of the people who call me do so after they’ve tried talking to the doctor and/or the risk management department for the hospital. They call me after they’ve tried to resolve it themselves. Most of them claim that the doctor and/or practice was unwilling to even talk to them, much less try to resolve their complaint. I would imagine that those who do talk to the doctor and work it out never contact an attorney at all. Most people who contact attorneys do so when they feel they are out of other options.

    Just because some people may only care about obtaining a large settlement, that doesn’t mean all clients are that way. And just because some lawsuits that get filed are very thin on liability doesn’t mean all lawsuits are frivolous. My firm agrees to represent less than 2% of the people who call us looking to sue a medical professional for a bad result. We are very selective and careful.

    If you’re going to advance your points, at least be fair in what you’re saying.

  3. Suzanne Henry says:
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    Most states have a malpractice cap. Most lawyers won’t even take your case. Most victims of medical error do not sue. Interpret that as you wish. But the tort lobby has won and done a fine job.

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    I’ve been helping defense and plaintiff attorneys resolve cases for 35 years. I agree with you and the Harvard Public Health study. Yes, patients mostly sue doctors so that “this won’t happen to anyone else.”

    Still, I see the same mistakes being made by presumably competent physicians over and over again. Missed strokes. Missed aortic dissections. Missed spinal abscesses. Missed appendicitis. Missed bowel infarcts. Why? Because physicians (other than the defendant) learn nothing from the multitude of malpractice suits. And why is that? Because there is zero transparency in our legal system. The main reason patients sue is being subverted by the system they are trusting to help them.

    Doctors need to learn from the mistakes of our colleagues, but the defense nearly always embargoes the outcome. Patients have to keep suing because we physicians aren’t getting the message. I’m hoping to change that by publishing a twice monthly physicians’ newsletter of “Takeaways,” things we can learn from lawsuits, based on actual cases (anonymized only when necessary – but still shared.)

    Canada does this through the Canadian Medical Protective Association. Their docs are informed – quickly. Maybe that’s one reason their litigation rate is lower than ours.