Why Does the Medical Industry Protect Doctors Who Harm Patients?
Neurosurgeon and attorney Larry Schlachter explores the shaky relationship between law and medicine in his acclaimed book, Malpractice.
In 1999, the prestigious Institute of Medicine (IOM) issued a landmark study, “To Err is Human,” which concluded that 44,000 to 98,000 patients were dying every year because of avoidable medical error. It follows that many more didn’t die, but were maimed or met the end of their productive lives by avoidable medical error.
“To Err is Human” made huge waves and effectively launched the patient-safety movement in the United States. Part of it was a result of timing, because there was a spate of high-profile deaths and serious injuries at the time. The fact that some of the victims were well-known journalists made it a sure bet that their unfortunate and premature demise would make headlines. The IOM analogy to a jumbo jet crashing each and every day of the year as an equivalent of the carnage from health care error put the issue in crystal clear perspective.
And yet there has been little progress in improving patient safety in the more than 15 years since the IOM issued its findings. In fact, many subsequent studies indicate that the IOM report was, if anything, a drastic understatement of the situation.
In 2004, HealthGrades issued a “Patient Safety in American Hospitals” study concluding that preventable deaths were almost double what IOM reported in 1999. The IOM study had extrapolated findings from three states; HealthGrades looked at Medicare data from all 50 states and Washington, D.C., examining 37 million patient records over the course of three years. It concluded that 195,000 people in the United States, or 390 jumbo jets full of people, died each year from potentially preventable medical error.[i]
In 2009, Scientific American noted: “Preventable medical mistakes and infections are responsible for about 200,000 deaths in the U.S. each year, according to an investigation by the Hearst media corporation.”[ii]
In 2010, the Department of Health and Human Services (HHS) released a report asserting that 15,000 Medicare beneficiaries die each month from adverse events. Of these adverse events, 6,600 died from preventable medical error. That is more than 79,000 preventable deaths annually among only Medicare beneficiaries.[iii] Since Medicare beneficiaries make up about 14 percent of the population, that extrapolates out to a death toll from preventable error in the general population of more than 562,000 patients. While it is true that the mortality rates for the Medicare population were probably higher because of their age and general health conditions, it should also be noted that both the IOM report and the HHS report limited their study of medical error to just hospitals. They did not include outpatient surgical centers, clinical visits, or in-home care.
In 2011, Dr. David Classen and colleagues reported in the journal Health Affairs that adverse events in hospitals may be ten times greater than previously measured.[iv]
In 2013, the Journal of Patient Safety reported that about 400,000 patients die, and 4 million to 8 million others are seriously injured, from preventable medical error every year.[v]
Let’s think about this for a minute. Just one major plane crash grips the world’s attention for weeks, even months. A couple of major plane crashes within a short time frame could result in a dramatic drop in global air passenger traffic for a year or more. And yet the total death toll would still be less than 1,000.
Now we learn that the equivalent of more than one jumbo jet’s worth of patients die every day in our hospitals from preventable errors, and not only is it not newsworthy, many of us do not take minimal steps to keep ourselves in good health and out of the hospital where the bad stuff happens.
It is important to remember that the worst of these numbers only represent how many patients are killed by preventable medical error. For each one who dies, many more survive with life-changing circumstances, from impotence to paralysis to the persistent vegetative states so often at the center of national news stories on the ethics of “pulling the plug.”
It’s equally, if not more, important to remember that each of these numbers represents real people, like Michael Skolnik. Unlike many of the stories you will read in this book, where the names and some identifiable information have been changed to protect patient privacy and abide by gag orders protecting doctors who agreed to malpractice settlements, this one uses the victim’s real name. Michael’s parents, Patty and David, refused a gag order that would have prevented them from publicly discussing what happened to their son.
Michael was a 22-year-old young man with a passion for helping people and an interest in health care. He was an emergency medical technician (EMT) and was just starting nursing school. Twice in three months, Michael inexplicably passed out, lost consciousness. Each time, a CAT scan was taken. The second CAT scan showed a very small colloid cyst.
The cyst was located near the top of the brain, adjacent to the third ventricle. We are going to talk about ventricles later in this book, but for now let’s just say there are four ventricles in the brain, and they are little cavities, tiny lakes if you will, containing and producing spinal fluid that drains its way into the spinal column. The neurosurgeon’s concern was if this small cyst plugged up the ventricle so that it could no longer drain properly, the ventricle would overfill, become enlarged, and put pressure on the rest of the brain. These cysts can be dangerous, but not all of them are. The imaging would tell the story.
The second CAT scan compared to the first one three months prior indicated no enlargement of the ventricle. That meant nothing was plugged up. That was good. The day after the second CAT scan, Michael submitted to an MRI, which confirmed the above. A very small cyst. No obstruction of the ventricle. No increased pressure on the brain. All indicating no surgical intervention was necessary.
The neurosurgeon, however, insisted the situation was very serious and life-threatening. He said that to save Michael’s life, he needed to implant a small drain tube in Michael’s brain so that the excess spinal fluid could drain properly. This was explained to the patient Michael, who signed the consent form to have the drain inserted. The neurosurgeon presented this procedure as being without risk, and only benefits. The consent was signed after Michael and his parents discussed it. Michael’s parents were grateful because they felt the neurosurgeon was saving Michael’s life.
During the procedure Michael received too much medication, and he stopped breathing. Technicians had to help him breathe while the meds wore off. One of the nurses informed Michael’s father, David, of what happened. Later, when David asked the neurosurgeon if Michael had stopped breathing, the neurosurgeon snapped, “Who told you that?” That could have been a red flag for the Skolniks, but with everything else on their mind, they barely noticed.
After the tube insertion was completed, the neurosurgeon informed Michael and his parents that he must have the cyst removed in order to save his life. He said it would be performed with pinpoint accuracy. He would open the lobes of the brain, and the cyst would be right there.
At this point, Patty and David got a fax from their primary care physician who was following the situation that said, “Do nothing. Cyst is not causing any problems and will probably never grow or change.” When they showed the fax to the neurosurgeon, his response was disdainful, as if to say, “This other doctor is a mere primary care physician, and you are just a mom, but I am the neurosurgeon. Who are you going to trust?
The next evening, when Michael was under the influence of considerable pain medication (we never learned why), the neurosurgeon presented a consent form to him for his signature, without his parents present. To this day, they do not know what was said or even if there was a conversation beyond asking for Michael’s signature. Recovering from one procedure and significantly medicated, Michael was in no condition to be presented with a legal document. The surgery was to take place the next day. When the parents asked about the consent form, the doctor said Michael signed it the evening before.
The operation they were told would take three hours took six and a half hours. When the neurosurgeon came out, “pulled back his hat and said, ‘I’ve had the worst year.’”[vi]
Confused, Patty and David asked, “How’s Michael?”
The doctor told Patty and David he hadn’t found the cyst, but had found a little bit of matter, and thought he might have punctured it when he went in with the drain. He acknowledged performing “heavy manipulation of the brain.”[vii]
At this point Patty and David were having trouble breathing, not to mention concentrating. They went in and looked at Michael and they were totally unprepared for what they saw. He looked puffy, his head was enlarged, and the next day when they unwrapped the bandages from his head and removed the ventricular drain that wasn’t draining and had never been needed anyway, they discovered that this had been no pinpoint-accuracy procedure, but that the neurosurgeon had performed a craniotomy, removing a portion of Michael’s skull for an open brain surgery.
It seems this surgeon did not have the skill or training to do the endoscopic method, which is much less invasive, and he did not bother to discuss alternatives with Michael and his parents — alternatives that would have required a more experienced surgeon.
As a result of a wrong diagnosis and unnecessary surgery, Michael experienced almost every possible complication, none of which were discussed with him or his family: hydrocephalus (swelling of the brain), seizures, pulmonary embolism, intracerebral hemorrhage, brain abscesses, multiple reoperations, infections, sepsis, respiratory arrest and thalamic pain syndrome.
Michael’s complications left him partially paralyzed, partially blind and psychotic. He was unable to feed himself, speak, or walk. He suffered for three more years before he gave up and died.
What had happened here? Michael and his parents were never provided surgical and nonsurgical options. No one ever reviewed with them the risks associated with each procedure. Michael and his parents had no way of knowing about the neurosurgeon’s lack of skill and experience with the surgeries he attempted. There was a missed diagnosis: The small cyst was not the cause of Michael’s symptoms.
One vibrant, promising life snuffed out by dishonesty and incompetence, and two parents left with the ruins. The Skolniks’ first health care insurance company had no maximum amount of coverage, and picked up the first $4.8 million of medical costs for Michael before canceling his policy when the fine print permitted them to do so, based on a technicality. A second insurance company picked up additional expenses, as did family members, and finally Medicaid kicked in. There were many big-ticket expenses that were not covered by anything, including by Medicaid, that had to be paid out of pocket. The Skolniks had made significant changes to their home to facilitate Michael’s care, including ramps, changes to the bathroom, electric lifts suspended from the ceiling, a $6,000 bed, and even a specially equipped van to transport Michael safely to treatments. After the settlement, the insurance companies and Medicaid had to be repaid a certain percentage from the settlement. When it was all over, the Skolniks had a home full of equipment they couldn’t use or need anymore; they were broke; and most devastating of all, they were missing the sound of their son’s voice.
The neurosurgeon? His malpractice insurance paid up. He found another neurosurgeon willing to testify that his performance had not been below the medical standard of care. Another of his colleagues defended him to local media, saying, “I don’t think he made a mistake, he just had a bad outcome.”[viii] (As you’ll see throughout this book, this response from the medical community is exceedingly common.) The Colorado Board of Medical Examiners reviewed the case and said they found no wrongdoing. The doctor wasn’t punished at all. Without so much as a slap on the wrist, he moved to another town where he is seeing patients and presumably improving the profit margins of his current employer.[ix] Apparently, this wasn’t the first time he’d had to relocate as a result of difficulties with his practice of medicine.[x]
If our profession can’t get motivated by 400,000 preventable deaths, why would just one more matter? But for Patty and David Skolnik, that one was the joy of their life and their best friend. They grieve for the unfulfilled promise of their son’s life. They are grateful he is no longer suffering. They are angry that they lost him unnecessarily. They feel guilty because they trusted a doctor and didn’t look further. And yes, there is an enduring amazement and bitterness that for the doctor who caused it all, there is no accountability. A doctor can kill his patient and never even have to do one hour of community service. He gets off easier than a teenager caught stealing a candy bar from the local drugstore.
State legislatures are becoming increasingly aware of public demand for more medical transparency and accountability as the numbers and outcry over malpractice mount, and dozens of states have passed laws that in various degrees strip away the veil of secrecy that has traditionally protected the medical community. Colorado has led the way, in large part owing to the efforts of Patty Skolnik, who led the charge after her family’s experience with this neurosurgeon. Colorado has passed three laws since 2007, including the Michael Skolnik Medical Transparency Act and two expansion acts, in response to Patty and David’s efforts.[xi]
Patty, David, and other surviving family members of patients killed by incompetent doctors are very active crisscrossing the country meeting with and speaking to groups of young medical students, interns, and doctors about their experiences. What they have to relate often leaves their audiences in tears. Their listeners are grateful for being reminded of what caregiving is all about; others are so appalled at the callous and indifferent behavior of their chosen profession toward those patients they have harmed that they are rethinking their career choices while there is still time to change and they still have a conscience.
Following the model of the standard mortality and morbidity conference known to all medical students, I can convey information in these pages about what goes on behind the veil of medical secrecy, but I know of no words to adequately describe the empty and bitter void left in the lives of these unfortunate people, for whom the worst day of their life was the day they or someone they loved entered the front door of the American health care system.
Perhaps the lucky ones were the ones who left the hospital in a body bag; the most unfortunate were those who were so badly damaged that they took years to die, experiencing indescribable pain and anguish and incurring lifetimes of debt. Patients like Michael Skolnik. Patients whose loving family members died internally, an inch at a time, with them. Their Teflon physicians, to whom nothing sticks, move placidly on to their next patient, their next venture, without a glance at the broken lives in their rearview mirror.
If a flu epidemic killed a quarter of a million or more of us in one year, and incapacitated hundreds of thousands more, we would be afraid to leave our homes for fear of catching it. But we enter our health care facilities without a single thought about who the people treating us are or what they do or don’t know, and we docilely place ourselves on their conveyor belt. We accept, with very few questions, a culture of secrecy designed to protect bad doctors from any sort of accountability.
It is important to note before we get deep into the issue of malpractice that not all hospitalizations produce desired outcomes. Some patients are beyond help from modern medicine; they are too sick or dying, and the best we can do for them is make them as comfortable as possible until the inevitable happens.
Then sometimes a patient’s body does something unexpected, and in spite of best efforts of alert and competent practitioners, the patient gets sicker or dies. A very small number of patients will die in surgery even though no errors or malpractice occurred. There are adverse events that are not mistakes, not errors, not preventable.
We have system failures, such as what happens with flubbed patient hand-offs. With increasing staff specialization, many different practitioners at varying levels of education and experience are involved with each patient on all three shifts. This applies at hospitals, but also even to in-home care. Someone seriously ill, perhaps just released from a hospital stay and convalescing at home, may experience a steady parade of caretakers in and out of their home. A successful clinical outcome can be jeopardized by something as simple as failed communications between these caretakers. Sometimes you can tell from the patient’s records or chart who was responsible for a failure, and sometimes you can’t. Sometimes it is due to multiple and cumulative communication failures. Fragmented care results in dispersed accountability.
There are lots of theories about human error and its unavoidability. All of us make mistakes, and perfecting human behavior is not a reasonable option. With the best of intentions, the best of us are going to err sooner or later. The question then is what should be done about the victim, the unlucky patient who was in our care on that occasion?
Theories about the inevitability of human error have drawn the medical profession to the path of systems thinking, developing protocols and redundancies to prevent the inevitable. In this, modern health care is endeavoring to imitate the progress of other high-risk professions. For example, offshore drilling for oil is an immensely complicated engineering marvel. When damage is done, there has to be cleanup and damage control, and most of all, systems have to be analyzed for their flaws and corrections made. We learn.
Much as doctors might wish otherwise, not all medical error is system error. Some practitioners make terrible, even stupid mistakes. These practitioners not only kill their patients, they often do it over and over again. This small minority of doctors are incompetent, and they make the rest of the profession look bad. Rarely does anyone blow the whistle on them. Whistleblowers or even expert witnesses are often subjected to retaliation from their colleagues. With this kind of siege mentality by organized medicine and many individual doctors, the prevailing mantra is to kill the messenger by endorsing laws that make pursuit of real malpractice more difficult or impossible.
We are living in the age of the MBA doctor, and the blame-and-shame days are passé. The medical profession will not ever be mollified with “tort reform,” which to them is nothing more than settlement or award reform. What the doctors really want is immunity, a no-fault system of voluntary reporting, where no information is provided to the public. All matters of clinical practice would be handled within the profession. To them, tort reform really means removing injured patients entirely from access to the American judicial system as we know it. No lawsuits. The medical profession will take care of its own.
Just like it took care of Michael Skolnik’s doctor.
[i] (2004, Aug. 9). In Hospital Deaths from Medical Errors at 195,000 per Year USA. Medical News Today. Retrieved from http://www.medicalnewstoday.com/releases/11856.php.
[ii] Harmon, K. (2009, Aug. 10). Deaths from avoidable medical error more than double in past decade, investigation shows. Scientific American News Blog. Retrieved from http://www.scientificamerican.com/blog/post/deaths-from-avoidable-medical-error-2009-08-10/.
[iii] Department of Health and Human Services, Office of Inspector General. (2010, November). Adverse Events in Hospitals: National Incidence Among Medicare Beneficiaries. Retrieved from https://oig.hhs.gov/oei/reports/oei-06-09-00090.pdf.
[iv] Classen, D.C.; Resar, R.; Griffin, F.; Federico, F.; Frankel, T.; Kimmel, N.; Whittington, J.C.; Frankel, A.; Seger, A. & James, B.C. (2011, April). ‘Global Trigger Tool’ Shows That Adverse Events In Hospitals May Be Ten Times Greater Than Previously Measured. HealthAffairs, Volume 30 Number 4, 581-589. Retrieved from http://content.healthaffairs.org/content/30/4/581.abstract.
[v] James, J. T. (2013, September). A New, Evidence-based Estimate of Patient Harms Associated with Hospital Care. Journal of Patient Safety, Volume 9 Number 3. Retrieved from www.journalpatientsafety.com.
[vi] Michael’s Story. Citizens for Patient Safety. Retrieved from http://citizensforpatientsafety.org/michael-skolniks-story/.
[vii] Stahel, P.; Mauffrey, C. (2015). Patient Safety in Surgery. London: Springer-Verlag. Page 470.
[viii] Fowler, P. (2007, Dec. 14). Glenwood Springs doctor linked to malpractice bill. Post Independent. Retrieved from http://www.postindependent.com/article/20071217/VALLEYNEWS/916599345.
[x] Washington, A. M. (2007, May 25). Ritter signs a dozen bills, including one making doctor info available to public. Rocky Mountain News. Retrieved from http://www.senmorgancarroll.com/news/ritter-signs-a-dozen-bills-including-one-making-doctor-info-available-to-public.
[xi] For more information on Colorado’s medical transparency measures, visit http://cdn.colorado.gov/cs/Satellite/DORA-Reg/CBON/DORA/1251633185830.
Dr. Marty Makary
Johns Hopkins surgeon, patient-safety advocate, and author of Unaccountable: What Hospitals Won’t Tell You and How Transparency Can Revolutionize Health Care
“Malpractice will not make Dr. Schlachter many friends in the health care industry, but it starts a conversation we must have if patient safety is truly our goal. We need more doctors like him — professionals willing to acknowledge the risks created by a medical culture that puts doctors ahead of patients, and willing to fight for meaningful changes that will lead to better outcomes for patients and providers alike.”
Board member of The Leapfrog Group and author of Catastrophic Care: Why Everything We Think We Know about Health Care Is Wrong
“A surgeon-turned-lawyer’s thoughtful and passionate plea for a more transparent and accountable medical profession. Lawrence Schlachter demonstrates how a medical culture of denial and secrecy prevents patients from identifying even the most serious medical mistakes, and how feeble professional discipline allows even the most incompetent physicians to continue to harm. Contrasting arguments for tort reform with the reality of America’s continuing plague of medical error, Schlachter makes a strong case for malpractice litigation — with all its flaws — as the only recourse for severely harmed patients."
Patricia J. Skolnik
President of Citizens for Patient Safety, LLC
“Malpractice is an honest view of what our broken health-care system looks like. We lost our only child to preventable death because the system allowed an incompetent surgeon to practice. Dr. Schlachter analyzes the challenges facing patients and caregivers in a way health-care consumers and professionals alike can learn from.”
Dr. Michael Dogali, MDCM, FACS
President of Pacific Neurosurgery
“Dr. Schlachter brings the same insight and honesty to Malpractice that he brings to examining cases in which patients have been terribly wronged. His astute analysis is a bitter pill for an industry that for many years has avoided the hardest conversations about patient safety, but it is perhaps the only prescription that can save us.”
An estimated 400,000 Americans die every year as a result of preventable medical error.
Twice as many Americans die each year from preventable medical error as die from lung or breast cancer—combined.
An estimated 4 million to 8 million Americans are seriously injured every year by preventable medical error.
Many patients never realize they’re a victim of negligence or malpractice, because the system is set up to protect dangerous doctors.
5.9 percent of doctors are responsible for 57.8 percent of malpractice.
Dangerous doctors are often able to move to another hospital or state and continue practicing.
10 percent to 20 percent of diagnoses are delayed, missed or altogether incorrect
Most doctors are good at their jobs, but the dangerous doctors are rarely held to account.
Less than 2 percent of patients harmed by medical negligence even file a claim.
Frivolous medical malpractice claims are exceedingly rare – cases are too expensive and too hard to win.
The total cost of malpractice litigation, including the costs of overhead and malpractice insurance coverage, represents 0.36 percent of total health care costs.
Contrary to the propaganda, malpractice litigation’s contribution to rising health care costs is negligible at most.
Since 2003, medical malpractice payments have fallen 28.8 percent, yet national health care costs are up 58.2 percent.
Improving patient safety will lead to better care and lower costs.
Lawrence B. Schlachter is one of the few attorneys in the United States who has a unique background combining dentistry, neurosurgery and law, with licenses to practice in each profession.Read Larry's Bio