Medical malpractice lawyers at Pintas & Mullins Law Firm report of a recent article written by Dr. Darshak Sanghavi forThe Boston Globe explaining the system that doctors, patients, and lawyers must use when analyzing cases of medical negligence. He points out that the vast majority of major errors are never pursued, and that the problem is not that Americans are filing too many lawsuits, but that they are filing so few.
Dr. Sanghavi begins by relaying the story of a woman who lost her infant daughter to medical negligence. He highlights how each of the doctors and nurses who cared for the baby never sat down with the mother to tell her, in detail, the honest events surrounding her child’s death. This silence, he argues, is the result of the modernization of medicine – care is now depersonalized, to the point where those seeking answers cannot always receive them.
Many states are recognizing this paradox and attempting to institute legislation to stop it. Massachusetts, for example, recently passed a law that allows doctors and nurses to speak candidly to patients and families who were injured under their care. The law permits the health care professionals to apologize to those victims, without fear that those apologies and explanations will be used against them in court. Also mandated by the new law is a six month ‘cooling off’ period between the time a patient is injured and when they are allowed to file a medical malpractice lawsuit. This enables the hospital and victim time to settle out of court.
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Numerous studies have shown that doctors are increasingly ordering frivolous testing and treatments, even when the threat of a malpractice case is very low. This may include extra MRIs, CT scans, hospitalizations, and referrals to specialists. The unnecessary testing is unwarranted, however, as most medical malpractice cases never even come to light, much less make it to the courtroom. Dr. Sanghavi cites a 1991 study that found that only an estimated 2% of victims of medical negligence ever filed a claim.
The troubling fact is that most doctors are unwilling to admit and apologize for their medical errors, and, even if they do, the negligence is swept under the rug or significantly underplayed. The result is a system ladled with secrecy. Victims of medical malpractice are not usually told exactly what happened to them and why until the situation is played out in front of them in the court room, years later. Most victims never get to the courtroom, however, and solutions proposed by states like Massachusetts, while helpful, do not completely solve the problem.
One insurance consortium, the Controlled Risk Insurance Company (CRICO), which insures all Harvard-affiliated hospitals, collects claim data from its hospitals, creating a catalogue of medical errors complete with special codes for each. Every negligence case has an impartial medical expert who reviews the patient’s charts to determine if and when an error was made. This type of data analysis enables hospitals and insurance companies to detect trends and similarities in medical errors, enabling them to make systematic changes and save more lives. Simple technological fixes can completely resolve fatal errors, such as missed breast cancer detection, or incorrectly inserting breathing tubes.
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The puzzle facing malpractice reformers now is how to apply the lessons learned from the 98% of medical errors that never enter the court room. The data from these cases must be analyzed to ensure that similar errors never occur again, just as data from each lawsuit is analyzed by an impartial expert. CRICO analyses claims from more than 500 health systems throughout the country, and has created the most detailed system of malpractice data in the world. Victims of medical malpractice are almost always entitled to, and have an opportunity to obtain, fair compensation. They just need to step forward and ask for the answers they never received.