Martin Kane Kuper
Consultation is Free
1.877.NJLAW4U
(732-214-1800)
Martin Kane Kuper
Consultation is Free
1.877.NJLAW4U
(732-214-1800)
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.

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.

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.

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.

New Sites Provide Data to Better Evaluate Surgeons

Two new websites launched recently that enable patients to evaluate and compare surgeons based on  information that was previously unavailable on complications rates and patient outcomes.

The first site, www.surgeonratings.org, released by the nonprofit Consumers’ Checkbook/Center for the Study of Services, only lists surgeons that have had better-than-average outcomes based on an analysis of more than four million surgeries conducted by 50,000 surgeons on hospital inpatients. The ratings exclude habitually poor performers, and track mortality rates within 90 days of surgery or readmission to the hospital within 90 days. At the moment, the site only provides data on 14 high-risk surgeries, like heart valve replacement and total knee or hip replacements.

The second website, Surgeon Scorecard by ProPublica, lists surgeons who have higher-than-average complications based on infections, clots or infections that call for post-operative care. ProPublica editor Stephen Engelberg explained, “these days, consumers can review ratings on everything from plumbers to hair salons to the latest digital cameras. The process of undergoing surgery includes some of the most consequential decisions any of us ever make. So we began with the view that the taxpayers who pay the costs of Medicare should be able to use its data to make the best possible decisions about their healthcare.”

These new sites provide patients access to data that may be valuable in choosing or evaluating their doctors. While the sites will not, in and of themselves, dramatically improve outcomes, it makes healthcare consumers more knowledgable and able to make educated decisions about their care. In addition, it also makes it more difficult for surgeons with poor records to hide that information from future patients.

Malpractice is Not Driving Up Healthcare Costs

Many frequently blame rising healthcare costs on lawsuits and malpractice insurance. Arguments typically revolve around “defensive medicine” and cite statistics about increasing amounts of medical malpractice lawsuit payouts, and how those factors must be affecting healthcare costs across the board. The only problem is that the data doesn’t support the typical narrative – at least not in the last decade.

The National Practitioner’s Data Bank 2012 annual report noted that “between 2003 and 2012, the number of medical malpractice reports decreased 34 percent, declining steadily from 18,535 to 12,152.” The same data show “the inflation-adjusted total value of payments made on behalf of doctors in 2011 was the lowest on record,” and that medical malpractice payments were “just 0.12 percent of national health care costs” in 2011.

Doctors have also started to weigh in. David Belk, a California physician practicing internal medicine has go so far as to post his annual medical malpractice insurance statement online – $3,459 in 2013. In New York, however, that premium would jump to over $7,000 in the Rochester area, and over $37,000 on Long Island. The discrepancy is the result of a number of factors, but the risk of malpractice is similar regardless of location. He explains that, “more and more, insurance companies are scrutinizing every test you order,” adding that most doctors are more concerned with the patient than liability. “I don’t think the threat of malpractice is more important than the threat of being wrong in a very important decision.”

Caps on lawsuit payouts have little impact on costs, since the contingent fee system for attorneys already filters cases that are unlikely to succeed, and the cost of litigation already prevents most attorneys from taking smaller value cases.

So, if malpractice and lawsuits are not to blame, what is? “American Health Insurance Plan, an insurance industry trade association that believes defensive medicine is part of the problem, cites a litany of other suspects: higher prices for services, a system that pays for volume over value, adopting new technology without considering effectiveness and a lack of transparency that prevents people from understanding how the market is, or isn’t, working.”

Lawsuits Can Be About More Than Money

When a doctor makes a poor decision or a hospital makes a mistake, many people in our litigious society have an immediate instinct to sue. While many Plaintiffs are looking for compensation or have legitimate expenses that need to be covered, the reality is that lawsuits can be about more than money. If a patient is injured or dies at the hands of poor medical care, often times a lawsuit is the only way to effectuate change and prevent the mistakes from happening again.

One alternative to a lawsuit is a formal complaint with the Joint Commission on Accreditation, the national organization that monitors and promotes hospital quality and safety. Unfortunately, a formal complaint rarely has a significant impact.  The medical community’s resistance to reform is notoriously passionate. The Joint Commission’s 2013 Annual Report points out that only 33% of the 3,300 Joint Commission-accredited hospitals have achieved the organization’s “top performer” rating.  (Moreover, there are another 2,400 hospitals in the U.S. that are not even accredited by the Joint Commission.)  Only 182 hospitals have managed to make the list for three years in a row.

The lack of safety in many hospitals has been well reported, but professional medical organizations can also be quite resistant to change. The American College of Obstetrics and Gynecologists  (ACOG) has refused to formally adopt a series of 21 changes tested and implemented by New York Presbyterian Hospital (NYPH) between 2002 and 2009. The NYPH changes reduced the incident of sentinel events — unanticipated events that result in death or serious injury to patients – from 1.04 per 1000 deliveries in 2000 to zero in 2008 and 2009. To put that into perspective, in 2003 the hospital and its doctors paid victims of sentinel events more than $50 million in compensation.  In 2009, they paid $250,000 — a remnant of a malpractice case that predated the reforms.  Yet ACOG refuses to recommend these reforms on the grounds that they may infringe on individual doctor or hospital prerogatives.

The negative press from lawsuits can sometimes be the catalyst for change on its own. Unfortunately, sometimes a large verdict or settlement is the only way that doctors, hospitals or insurance companies will implement reforms to make things safer.

For more information, read Forbes.

Infections Triggered from Medical Scopes

The deadly pattern of illnesses began to emerge in 2012 at hospitals in Seattle, Pittsburgh, Chicago. In each case, the culprit was a bacteria known as CRE, perhaps the most feared of superbugs, because it resists even “last defense” antibiotics and kills up to 40% of the people it infects.  And in each case, investigators identified the same source of transmission: a specialized endoscope (called a duodenoscope), threaded down the throat of a half-million patients a year to treat gallstones, cancers and other disorders of the digestive system.

Neither the scopes’ manufacturers, nor the FDA has issued any warnings regarding the device.  The FDA said  in a written statement to USA TODAY that it was “aware of and closely monitoring” the infection risks associated with the scopes. “Some parts of the scopes may be extremely difficult to access and clean thoroughly,” the agency adds, “and effective cleaning of all areas of the duodenoscope may not be possible.”

Lawrence Muscarella,  a biomedical engineer and independent consultant who advises hospitals on endoscope safety,  identified at least a half-dozen U.S. outbreaks of CRE and related superbugs since 2012 that were linked to contaminated duodenoscopes.

Several hospitals are not waiting for the FDA, and are instituting new safety procedures of their own.

Read more at the USA Today.

Advocates want National Patient Safety Board to Reduce Errors

There have been great strides in the fight to reduce patient deaths due to medial errors, but more can be done. Last week, the Department of Health and Human Services reported that  hospital-acquired conditions have dropped 17 percent between 2011 and 2013, resulting in 50,000 fewer deaths and saving the industry $12 billion. According to  patient safety advocate and toxicologist John T. James, Ph.D, there is more that must be done, since estimates still put deaths due to medical errors at 400,000 per year.

According to Dr. James, the most important steps include access to complete medical records, comprehensive performance reviews for all clinicians, and the creation of a National Patient Safety Board to oversee reviews and synthesize information from across the country. Dr. James argues that medical record fragmentation makes it difficult to perform  complete record reviews after incidents, and there is no unified system to hold chronically negligent practitioners accountable. A National Board would streamline  access to comprehensive records by collecting and reviewing them in a single process, and create a single forum for identifying habitually dangerous practitioners.

This idea still lacks support by many organizations, many of whom argue that more regulation will only create a greater incentive to bury errors, and will not actually improve patient safety.

Contact us with your questions

Vista esta formulario en Español.

Llamenos con sus preguntas

Vista esta formulario en Inglés.