I have some insight, as a personal injury lawyer, that a lot of these fearful medical professionals might want to know: Malpractice cases are not as easy to win as you might think. The costs of pursuing a medical malpractice case are prohibitively expensive. Very, very few attorneys will shell out the money — without being paid in advance — to go after a physician for something frivolous. Of course members in the medical community feel solidarity with each other, but the truth is that when physicians find themselves on the wrong end of a malpractice lawsuit, it’s often because they grossly failed to uphold their duties to patients. Lawyers don’t hate physcicans; we rely on them. They’re essential to our clients’ recovery, and their personal injury claims. However, there are negligent physicians, just as there are unethical lawyers and corrupt politicians. In every case, these professionals are not victims, but perpetrators.
As an attorney, I’m not impressed with defensive medicine. It’s a red herring, a poor attempt to cover up the problem of medical errors without doing anything to address it. As a patient, it concerns me that many of the medical procedures performed across the country, possibly on my family members, are done for no medical reason. The risks — and there are always risks — outweigh the benefits, because there are no benefits. As a worker and taxpayer, I’m frustrated at the additional and unnecessary costs of defensive medicine, a huge drain on a healthcare system that is already unsustainably expensive.
Medical errors are a major problem, and not because of malpractice lawsuits. Evidence suggests that we’ve made little, if any, progress in curbing the prevalence of fatal medical mistakes over the last decade or so. As of 2011, medical errors still killed 98,000 people per year, the United States National Library of Medicine reported. It’s time to stop counting on defensive medicine to solve the malpractice problem; it isn’t working.
There’s only one overarching strategy for reducing medical malpractice lawsuits: reduce instances of malpractice. Make lawsuits unnecessary by not making medical mistakes in the first place. Physicians don’t get sued because they fail to order the same test three times for no medical reason. They get sued because they fail to identify symptoms that they have the training to recognize and order the right diagnostic testing in line with the recommendations of the larger medical community.
The strategies for reducing medical errors are numerous. Technology is a major factor. Electronic medical records, with data inputted accurately and maintained properly, can be much more reliable than traditional means of recordkeeping. There shouldn’t be mix-ups that result from illegible handwriting, in which a patient receives the wrong medication or the wrong patient receives a procedure. As medical facilities use electronic health records more extensively and even prescribe medication electronically, it could lead to a decrease in the most obvious medical errors. However, physicians and staff need to be precise in maintaining these records.
Time plays another significant role in reducing mistakes. Interestingly, the same JAMA Internal Medicine article that quantified physician fear of lawsuits also found that 40 percent of physicians surveyed said they didn’t have enough time to spend with patients. Not only does this rush force physicians to practice defensive medicine — especially in cases where physicians refer patients to specialists not because they don’t have the skills or qualifications to make the right diagnoses, but because they don’t have the time — but it could very well contribute to the high rate of medical errors. If this lack of time is a symptom of the physician shortage, it’s a good reason to start addressing the problem.
Long workdays also may contribute to medical mistakes. In 2004, researchers discovered that aspiring physicians interning in intensive care units made 21 percent more mistakes when working a traditional 30-hour shift than they did working only 16 hours, the Centers for Disease Control and Prevention reported. We know that sleep deprivation negatively affects our abilities to focus and make decisions, so why should we be surprised that it could cause medical care providers — of any experience level — to make more mistakes? Maybe it’s time to revisit how hospitals make physicians work schedules. There are laws that govern how much time a bus driver is allowed to spend working, to prevent sleep deprivation from causing accidents. Why can’t the healthcare industry embrace similar regulations?
Accountability matters in curbing mistakes. The Consumers Union reported that even practices as simple as hand-washing increase significantly when healthcare professionals know that they are being observed and that their actions will be publicly reported, even if the reports are anonymous. By making such information publicly available, healthcare professionals will feel forced to adhere to sanitation and other safety standards — and it doesn’t have to end with washing hands.
Of course, I’ve heard arguments for altering the way the legal system handles malpractice lawsuits. Some have suggested that these claims by tried by specially trained malpractice judges. Frankly, if these judges were trained in medicine as well as law, they could actually reduce the need for expert witnesses, and so reduce the legal costs that victims of malpractice have to bear.
This is by no means an exhaustive list of what can be done to decrease the number of medical mistakes. Others — like those who actually work in the medical field — could certainly develop more comprehensive practices than I can. The point is simple: instead of practicing defensive medicine, it’s time to return the focus of medical care to where it belongs — on the patient.
Richard P. Console Jr. is the founding and managing partner of Console and Hollawell, one of the most highly regarded personal injury law firms in New Jersey and Pennsylvania. Since 1994, he has dedicated his professional life to protecting the rights of individuals that have been injured in motor vehicle accidents, medical malpractice, wrongful death, and other serious injury claims.
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