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Legal and Medical News Blog

The Surgeon Who Became a Malpractice Lawyer

Lawrence Schlachter was an accomplished neurosurgeon in Atlanta until a ball came flying off a hitter’s bat, shattering bones in his right hand and rendering him unable to operate. At that point, the 52 year-old took a novel approach: he went to law school and became a medical malpractice attorney.

Having seen medical malpractice issues from both sides of the aisle, Schlachter provides a unique perspective in the discussion over medical malpractice. He recently wrote a provocative op-ed for the Wall Street Journal regarding what should be done to expose bad doctors, and is preparing to release his book “Malpractice” shortly.

His most compelling statistic (from a recent article in the New England Journal of Medicine) is that 1 percent of physicians are responsible for almost 1/3 of all medical malpractice cases. Despite that, very little is done to curb their ability to practice medicine or harm patients. He also sheds light on a broken system in which doctors, afraid for their careers and those of cherished colleagues, will lie or cover up instead of admitting mistakes and getting justice for injured patients. Everyone makes mistakes, but with the policies put in place by insurance carriers and licensing boards, even a single mistake can cost a doctor tremendously. As a result, patients often suffer.

The following is an excerpt from a Q&A with Propublica earlier this year.

Q. What did you see as a medical malpractice attorney that you did not see when you were practicing medicine?

A. I saw doctors and hospital officials cover up records, lie, not tell the patient and family what happened. I’ve seen fractures in the health care system, a lack of patient safety, and human nature and arrogance causing people to circle the wagons. I saw doctors come to court and say things that weren’t true. I saw patients come to court and not get justice. After 12 years of this I’ve reached the point where I’ve almost become the investigative reporter instead of the lawyer. There has to be something done about this. It’s not sustainable, and it’s not right.

Q. Did you see these problems when you were practicing medicine?

A. To a limited extent. When you’re practicing medicine you don’t see any of the legal cases unless you’re in them or testifying in them. In terms of actual cover-ups or denials, you do see it to some extent between yourself and your partners. You tend to not do much about it. For example, when one of my partners got sued, I thought he did something wrong but I didn’t step up and say it. I just stayed out of the way and stayed quiet.

Q. So when you were a doctor were you part of the problem?

A. Not to the extent that I’m seeing as a lawyer. I never went to a courtroom and lied about anything. I never gave expert testimony that was dishonest to protect someone else at the expense of an injured patient. I certainly was part of the doctors that tried to stay out of it. I didn’t throw myself into the fray.

Q. Do you think lots of doctors are in a similar position to the one you were in?

A. Yes. The real issue is that medicine is incapable of regulating itself. Doctors, like any other profession or business, will act in their own self-interest and protect their own self-interest. How far they go is an individual choice, depending on the stresses that are on the institution or the doctor. But everyone tries to not discuss what went wrong, to not expose themselves to a medical-legal situation or litigation. I think the self-interest of all the different groups has such control over who is supposed to do the regulation that there is just enough regulation for the public not to create a riot.

Q. What are the biggest patient safety problems you see?

A. I see a lot of non-physicians being deeply involved in the patient’s care. I see doctors now who have physician assistants, nurse practitioners, scribes, all different types of things. As a matter of efficiency, for economic benefit, the physician does less. That can be an advantage if the helpers really care about the patient. They may see things the physician doesn’t see. But the extension of that to the extreme can be very dangerous.

I was just on the phone an hour ago where a spine surgeon here in Atlanta did an operation on a patient in the hospital and then never saw the patient again. Within hours of the surgery the patient was complaining to everybody. All that was necessary was for someone to listen to him and for the doctor to help him. They could have done a CT scan immediately, taken him to the operating room and he would have been OK. But now this guy has a chronic pain problem for the rest of his life. He’s on chronic medication. He can’t work. His life is ruined. This is unacceptable. Why does this physician practice in such a way he doesn’t see his patients after the operation?

Q. What do your friends from the medical field say about your work as a medical malpractice attorney?

A. My friends know me as a person who has integrity, and they know me as a good doctor. So they think I’m doing the right thing. Mine is an unusual combination of talents and circumstances. I have a doctor’s heart and compassion and a lawyer’s awareness that great harm is sometimes done to patients through narcissism, carelessness or ineptitude.

Q. Lots of doctors care about improving patient safety. So why is it so hard to keep patients safe?

A. They’re afraid to come out. They’re in the closet. They’re afraid of retribution, isolation. Why aren’t all the doctors knocking my door down to be expert witnesses? They’re not. I struggle to find people who will help me. The flip side is why are so many willing to testify the other way and stretch the truth and not tell it like it is? I think most of my colleagues don’t hate me, but they don’t want to help me.

Q. What’s the way forward?

A. That’s the question everybody asks to which I don’t have a simple answer. Things in this world don’t change quickly. We have a complicated political and legislative process. Medicine as practiced today is an evolution of 100 years of different economic stresses, different political stresses. Nothing is going to change quickly from anything I do or you do. It all is an evolution. I don’t think I have the power to fix anything in and of myself. Other than raise the awareness of people. Just like your investigative reporting does: You almost shame people into making things better.

There has to be a way for people to be told the truth and for there to be accountability. Accountability doesn’t necessarily mean punishment. It could be rehabilitation, supervision, a lot of different things. But there has to be a just and fair way for people to get good care and for doctors to know what they’re doing and be held accountable when they make mistakes.

Q. How do you mandate doing the right thing?

A. There have to be punishments or sanctions involved in accountability. The only way to make people accountable if they don’t want to be is to take away their license or take away their income. What other ways can there be? It’s pretty draconian, but if people are fearful they are more likely to do the right thing. Everyone’s going to act in their own self interests. That’s the way the world works.

Short Staffing Nurses Leads to Patient Harm

It has long been argued that when there are not enough nurses on staff, patient safety suffers. That theory has just been confirmed by a new study published in the British Medical Journal. According to lead researcher Jane Ball of Southampton University, when nurses are responsible for 10 or more patients at once, there is a 20% greater chance that a patient will die. That risk is greatly reduced when the nurse is responsible for 6 patients or fewer. The research team further found increasing the number of available healthcare assistants rather than nurses had no effect on the mortality rate.

The results, Ball told the Telegraph, demonstrate why hospital leaders should prioritize patient safety over their bottom lines. “When determining the safety of nurse staffing on hospital wards, the level of registered nurse staffing is crucial; hospitals with higher levels of healthcare support workers have higher mortality rates,” she said. “Patients should not be asked to pay the price of receiving care from a less skilled and less educated member of staff, just to make up for the failure of the system to ensure enough registered nurses.”

These results back up similar research conducted in the U.S., including a 2013 study that found nursing staff ratios directly affect readmissions at pediatric hospitals. Nurses in several states, including New Jersey, Minnesota and Oregon, have lobbied extensively to impose mandatory nurse-to-patient ratios, while opponents of such measures have argued hospitals can achieve similar improvements at lower cost.

Over the course of years, we have observed that while doctors are ultimately responsible for various oversights, nurses are often the first to catch (or miss) mistakes. Various medical malpractice cases in Middlesex County, NJ have involved nurses as well as doctors. Once can only hope that medical providers learn from mistakes and adequately staff nurses so that patients receive adequate attention and care.

Healthcare Miscommunication Costs $1.7B and 1,700 Lives

In the past seven years, healthcare miscommunication has cost over $1.7 billion in additional medical expenses, and over 1,700 lives. According to research from research/analysis firm CRICO Strategies, communication problems were a contributing factor in 7,149 cases (30 percent) of 23,000 medical malpractice claims filed between 2009 and 2013. Obviously, the statistics are only a fraction of the total number of medical malpractice incidents that did not lead to lawsuits.

Common breakdowns in communication include miscommunication about a patient’s condition, inadequate informed consent, poor documentation and an unsympathetic response to a patient’s complaint. Patient safety advocates have pushed for improved healthcare communication for decades, spurred by the 1994 death of a Boston Globe reporter from a chemotherapy overdose. The numbers in the CRICO report indicate disappointingly little progress on the issue in the intervening years, according to Frank Federico, vice president for patient safety at the Institute for Healthcare Improvement. “We’ve been working on this for a long time, and it still continues to be a big problem,” Federico told STAT.

The report includes several examples, including a situation in which one man died after a nurse noticed, but failed to alert the surgeon that the patient was experiencing signs of internal bleeding. Another case involved a diabetic patient who collapsed and died after staff at a medical practice failed to give the primary care provider telephone messages from the patient. In a third case, a woman asked to have her tubes tied after delivering a baby through a C-section, but her instructions were not shared with the obstetrician on duty. The patient filed a malpractice claim when she got pregnant again.

The report cites many challenges to healthcare providers, such as heavy workload, hierarchical workplace culture, cumbersome electronic health records, and constant interruptions. And it highlights solutions, including a program called I-PASS born at Boston Children’s Hospital.

The report also had disturbing findings with electronic medical records (which we have written about previously). While EMRs have emerged partly to improve incidents of healthcare miscommunication, in some cases they have the opposite effect. For instance, one woman’s cancer diagnosis was delayed for an entire year because her lab result was plugged into the electronic health record but was not flagged to her primary care provider.

In another case, a primary care provider referred a patient to a lung doctor but didn’t mention lab results signaling possible early congestive heart failure, assuming that doctor would see the results in the electronic medical record. About nine days later, the patient was rushed to the emergency room and died after his lungs filled with fluid.

Malpractice Claims Against Nurses on the Rise

According to a recent report, medical malpractice claims against nurses are on the rise. During the five-year period between 2010 and 2014, more than $90 million was paid in malpractice claims against registered nurses, licensed vocational nurses and licensed practical nurses. Those at the highest risk for malpractice lawsuits are nurses who were trained outside of the United States and nurses who have more experience.

Some highlights include: the average claims cost increased from an average of $151,053 in 2007 to $164,586 in 2015, and male nurses had higher paid indemnity amounts, with an average of $55,175 compared to $38,570 for women.

The report’s risk-reduction strategies include strategic interventions against common causes of patient harms such as patient falls, proactively addressing any potential communication issues within the chain of command and performing timely, accurate assessments of individual patients’ health and conditions.

Indeed, medical malpractice claims against nurses are increasingly common as doctors see more patients, and consequently have less time to spend with each. As more patients have more substantial interactions with nurses, there are greater possibilities of errors. Therefore, many of the primary care functions fall on nurses. In our practice in East Brunswick and Perth Amboy, New Jersey, we see many situations in which clients had far more interactions with nurses than their attending physicians.

Hospital Infection Rates Don’t Tell Full Story

One of the most common ways to evaluate a healthcare provider is to examine their post-op infection rates. That data, however, is incomplete. There is much more that goes into safety than infection rates, and even those may not be current or tell the whole story.

As reported recently in the Orange County Register, some infections don’t get reported unless providers are required to turn over information. Details of conditions inside Mission Hospital [in Orange County, CA] – which temporarily closed its 14 operating rooms last fall because of a small outbreak of infections associated with orthopedic surgeries – were hidden by the federal government for six months. The final report was only presented after an Open Public Records Act request in the spring.

“These kinds of inspections are the checks and balances to make sure the hospital is doing what it’s supposed to be doing, but there’s a lack of awareness on the part of the public,” said Lisa McGiffert, director of Consumers Union’s Safe Patient Project. “Part of that is because this type of information is kept secret.”

While the hospital was required to report infection rates, it was not required to report the specific infection that caused closure of the operating rooms, nor was it required to disclose the full government report detailing the closures. A Register review of inspection reports for five major Orange County hospitals found issues such as lack of hand-hygiene compliance, rusty procedure tables and improper sterilization of surgical tools. These common issues would not be found in required hospital infection data.

A hospital might have an infection rate comparable to or better than state and national averages, but still might get cited for a number of deficiencies.

“Unfortunately, tens of thousands of patients die each year from medical errors. By bringing these reports into public view, we can encourage the kinds of improvement that will save lives,” said Len Bruzzese, with the Association of Health Care Journalists, which publishes details from inspection reports since 2011 online.

Some Experiences with Medical Mistakes

Recently, a writer on the Huffington Post described his experience with a friend undergoing treatment for slow-progressing lung cancer. The author describes multiple sets of mistakes by his friend’s “elite” medical team, and repeats the phrase that the doctors might kill him before the cancer does. There are a few excerpts below.

“The result is dangerous medical chaos. Doctors love pictures and get paid a lot for ordering and reading them. Over the years my friend has been subjected to countless and mostly unnecessary imaging studies with contrast dyes that have compromised his kidneys. It seems likely that renal insufficiency will kill him before his lung cancer does. He is also no longer eligible for additional lung-cancer treatments because his kidneys flunk protocol requirements. And along the way he has been prescribed several unnecessary medications that also hurt his kidneys. Everyone focused on the lung cancer; no one noticed the harm they were doing to the kidneys.

There have also been several close calls because he was prescribed multiple medicines by multiple doctors without coordination and due consideration of the drugs’ interactions and synergistic harms.

The mistakes were all easily preventable if anyone were minding the store and paying attention to the patient, not the lab tests. In any common-sense world doctors would care about risks and harms and wouldn’t always be rushing to order stupid and dangerous tests and treatments.”

Unfortunately, these experiences are not unique. According to recent statistics, medical mistakes cause about 440,000 deaths each year. Many of these deaths are preventable, and a significant number of these patients could be saved with basic communication and oversight.

With the healthcare model revolving around billing for the number of tests and procedures performed (and drugs prescribed), doctors have little financial incentive for minimizing tests and procedures. With the increase of specialization in the medical field, rarely is there a single doctor looking out for the patient’s global health. Even with the best of intentions, doctors frequently over-test, over-prescribe, and spend too little time with patients to get to know the full story.

When Electronic Medical Records Harm Patients

Electronic Medical Records (“EMRs”) are supposed to be a great step forward for patient safety. They are supposed to (among other things) automatically cross check medication orders with patient allergies, ensure that two medications don’t have harmful interactions, and allow multiple medical providers to quickly and easily have access to important health information about the patient.

Unfortunately, due to their clunky design, cumbersome requirements, and time consuming processes, they can distract doctors and nurses from the primary focus of tending to a patient, which endangers safety much more so than any old record system. EMRs are now a constant presence in patient rooms, requiring more time and attention than traditional paper records ever did. The result is less time and focus the doctor or nurse can devote to the patient.

In an opinion article written in the Wall Street Journal online, John Sotos recounts how his friend suffered in a large, well-respected university hospital as a result of distracted nurses. His friend, called Alex in the piece, was in the hospital for a fairly routine surgical procedure, but she was not permitted to eat or drink during her stay. I.V. fluids were supposed to replenish her body’s nourishment during her stay. He explained that three separate nurses, on three consecutive days, failed to correctly provide Alex with proper I.V. fluids – they provided no fluids on day 1, three times the required amount of fluids on day 2, and again no fluids on day 3.

While these oversights can be seen as unfortunately coincidences, he assigns blame to the EMR. In the old days of paper records, nurses would have opened the chart at the foot of Alex’s bed, looked at her fluid requirements and past orders, looked at the pole next to her bed, and acted accordingly.

“Today, nurses at Alex’s hospital are, almost literally, chained to a computer station with wheels that runs the EMR and goes with them from patient-room to patient-room,” he writes. “A basic nursing task, such as documenting a patient’s urination, requires the nurse to walk to the computer, sign on to the EMR (itself a chore), grasp the mouse, select the patient, click a “urination” tab (eventually), move hands to keyboard, type the volume of urine, then click “save.” Any new data, alerts or orders on the screen will distract the nurse from thinking about the significance of the urine volume just produced.”

Detecting Alex’s fluid mismanagement required only a glance at her, a glance at the I.V. pole next to her, and a modicum of thought. Obviously, the glances and thought didn’t happen… three times. That was likely because the nurses were distracted by having to spend that time entering information into a computer.

Thankfully, but for some temporary discomfort and having to page a doctor at 1 am to change a bandage (the excess day 2 fluids, combined with blood thinners, caused an inordinate amount of bleeding), Alex was ok. This is but one example how, with their attention spread more thin as a result of EMRs, doctors and nurses are prone to make more mistakes or become more easily distracted.

Operating Room Disruptions Pose Safety Risks

A medical journal published an anonymous essay last month by a physician recounting other doctors’ crude and sexual comments and behavior with patients during obstetric and gynecologic surgeries.

From rude and disparaging remarks about a nurse’s special needs son, to joking about a patient screaming in pain because the doctor did not use enough anesthetic, political correctness has clearly not penetrated into the operating room. Whether it’s angry outbursts, lewd remarks or passive aggressiveness, bad conduct by those in the medical community is called  “disruptive behavior.” It’s considered such a risk to patient safety that hospitals must have a system for addressing it in order to meet accreditation standards.

Disruptive behavior leads to increased medication errors, more infections and other bad patient outcomes — partly because staff members are often afraid to speak up in the face of bullying by a physician. Since the majority of medical mistakes can be traced to poor communication, any barriers to communication (including operating room disruptions) represent significant health risks to patients.

Most experts estimate that up to 5% of physicians exhibit disruptive behavior, although fear of retaliation and other factors make it difficult to determine the extent of the problem. A 2008 survey of nurses and doctors at more than 100 hospitals showed that 77% of respondents said they witnessed physicians engaging in disruptive behavior, which often meant the verbal abuse of another staff member. Sixty-five percent said they saw nurses exhibit such behavior.

At Vanderbilt University Medical Center, 90% of team members don’t get any complaints, 6-8% get occasional complaints and 2-3% account for more than 40% of complaints. said Gerald Hickson, a doctor and senior vice president for quality, safety and risk prevention. Of that 2-3%, more than three-quarters turn their behavior around and don’t have recurrences. Only a couple medical professionals out of about 1,600 lose their staff privileges each year, meaning they are no longer able to see patients, for this sort of behavior, he says.

For more, read the USA Today.

NJ Worst in Country for Patient Readmissions

In a recent study of data from across the country, New Jersey hospitals ranked last in the nation for the high number of patient readmissions after discharge. As a result, the federal government penalized nearly every New Jersey hospital this year with monetary fines and reduced Medicare reimbursements. The New Jersey Spotlight report shows all N.J. hospitals – except for one – will receive lower Medicare reimbursements as a result.

The fines range from .01% Medicare reimbursement reduction for Saint Barnabas Medical Center in Livingston, to 2.49% for Palisades Medical Center. The fines are calculated according to the percentage of patient readmissions within 90 days of discharge.

The nationwide penalties, which are estimated to total $373 million, are falling particularly hard on academic medical centers: Roughly half of them will be punished, according to a Kaiser Health News analysis.

For the complete list of NJ hospitals and fines, please visit the East Brunswick Patch.

Antibacterial Wipes Can Spread MRSA

British researchers have concluded that disinfectant wipes routinely used in hospitals may actually spread drug-resistant bacteria rather than kill the dangerous infections. While the wipes killed some bacteria, a study of two hospitals showed they did not get them all and could transfer the so-called superbugs to other surfaces, Gareth Williams, a microbiologist at Cardiff University, said.

“What we have found is there is a high risk,” said Williams, who led the study. “We need to give guidance to the staff on how to use the wipes because we found there is a possibility of cross transfer.” MRSA can live on multiple surfaces and is very dangerous in hospital settings.

Experts have been saying for years that poor hospital practices spread dangerous bacteria, and yet many studies have shown that health care workers, including doctors and nurses, often fail to even wash their hands as directed. Antibacterial wipes are supposed to be an easy and disposable solution to the problem, but the study suggests that they could actually be contributing to it.

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