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What Most People Don’t Know About Medical Malpractice
  December 15, 2014|  0 comments|  By jj

depositphotos_44230637_xs-300x200We are all taught that doctors are selfless individuals who study hard, keep abreast of the latest medical techniques, and dedicate themselves to healing the sick and saving lives. There is a measure of truth in that rosy portrait of the medical profession, but the full story is less inspiring.

 

Every year in the United States, hundreds of thousands of patients die as the result of medical malpractice. Many more are seriously injured by negligent healthcare providers. Surviving victims deserve meaningful compensation for their injuries, but the legislatures in California and most other states have protected insurance companies at the expense of justice.

What is medical malpractice?

Medical malpractice is another way of saying medical negligence. The phrase refers to a careless act, or a careless failure to act, that harms a patient.

In most states, malpractice liability is determined by a health care provider’s adherence to the standards of his or her profession. A doctor, dentist, nurse, or other healthcare provider commits malpractice when the provider harms a patient by failing to provide the same standard of care that is customary among reasonably prudent healthcare providers practicing the same kind of medicine in the same location.

As an example, a reasonably careful internist in a particular community might be expected to order a specific test after hearing a patient complain of certain symptoms. If an internist fails to order that test, the internist might be found liable for malpractice if the failure leads to a misdiagnosis. When the misdiagnosis causes the patient to suffer or die from a disease that could have been cured if it had been properly diagnosed, the patient or the patient’s surviving family is entitled to compensation.

How widespread is medical malpractice?

Accurate statistics are difficult to find because many acts of malpractice are never reported. An article in the Journal of the American Medical Association published in 2000 reported that as many as 98,000 hospitalized patients die each year due to medical malpractice. That figure does not include patients whose death results from acts of malpractice that are not committed during a hospitalization. It also fails to count the victims of malpractice who experience suffering or disability but not death.

The National Academy of Medicine reports that medical negligence causes more deaths each year than motor vehicle accidents. Medical malpractice is one of the ten leading causes of death in the United States.

Why does medical malpractice occur?

Physicians are highly compensated. Given the cost of medical school and the years they devote to training, they deserve to make a decent living. At the same time, the healthcare system places pressure on doctors to maximize billings while minimizing the time they spend with each patient. Particularly when a doctor works for a health maintenance organization or a high volume clinic, the doctor is expected to treat patients as quickly as possible so the doctor can move on to the next patient and generate another billing.

The rush to treat as many patients as possible during the course of a day sometimes results in a sacrifice of quality care. Doctors who spend more time with their patients are more likely to learn of important symptoms that patients might overlook when they make their initial complaint to the doctor.

Insurers also pressure doctors and hospitals to minimize the cost of diagnostic procedures. A doctor may be reluctant to order an expensive scan if there is some doubt about the willingness of the patient’s insurance company to pay for it. Insurers complain that doctors order too many tests to protect themselves from liability, but conscientious doctors are concerned about protecting their patients, not the insurer’s profits.

Even good doctors can make bad mistakes, but there are an unfortunate number of bad doctors who commit acts of malpractice repeatedly. Some are impaired by drug or alcohol abuse while others are simply incompetent. They often cover up their errors by failing to report them to patients and by altering medical records. Sometimes they do so with the complicit approval of their employers and/or hospital administrators. Even when their malpractice is discovered, most states to not provide consumers with a database they can use to learn whether a healthcare provider has been disciplined or sued for malpractice.

How are patients affected by medical malpractice?

The results of medical negligence can be devastating. Medication errors, for example, are among the most common mistakes that occur in hospitals. Thousands of patients die every year because they are given the wrong medication, or the wrong dosage of a medication, during their hospitalization.

Thousands of other deaths are caused every year from errors made during surgery. Preventable infections cause the deaths of tens of thousands of hospitalized patients every year. Transfusions performed with an incompatible blood type should never occur, but patients die every year because hospitals mix up blood supplies or test results.

Horror stories abound of patients who suffer needlessly as the result of medical malpractice. A failure to diagnose cancer while it is still at an early, treatable stage can lead to a lingering, painful, and life-shortening illness. Mistakes in the administration of anesthesia can lead to paralysis. Some patients have had the wrong limb amputated, only to face the subsequent amputation of the correct arm or leg.

Painful infections and internal bleeding are caused by instruments and other objects left inside a patient’s body during surgery. Errors made during cosmetic surgery have left many patients permanently disfigured. Other patients have lost the ability to bear children after undergoing unnecessary hysterectomies.

Patients have the right to seek compensation for injuries that are caused by medical malpractice. When negligence is the clear cause of a shattered life, sympathetic juries usually want to hold the careless healthcare provider accountable. Unfortunately, state legislatures have impaired the right of injury victims to receive the full compensation that juries deem appropriate.

How do damages caps affect injured patients?

Many states, including California, have enacted a “cap” on certain kinds of damages that can be awarded in medical malpractice lawsuits. State legislators have enacted these limits in response to pressure from insurance and medical industry lobbyists who complain that medical malpractice insurance premiums are driven up by the cost of defending doctors against “frivolous” lawsuits.

The arguments made by lobbyists are specious. Medical malpractice lawyers know that frivolous lawsuits result in expensive sanctions. Moreover, medical malpractice attorneys only earn a fee by winning the case. They have no incentive to bring frivolous claims that they cannot prove.

Medical malpractice lawsuits often result in large verdicts that reflect the serious harm that results from a doctor’s negligence. If insurance companies charge substantial premiums because they are forced to pay large verdicts, the fault lies with the negligent doctors and hospitals they insure, not with the injured patients. If doctors are paying too much for malpractice insurance, they should lobby the legislature for a cap on insurance premiums, not on the compensation awarded to suffering patients.

California limits the award of noneconomic damages in a medical malpractice case to $250,000. Noneconomic damages include pain, suffering, and emotional distress. A quarter of a million dollars might seem like significant compensation, but it is far less than juries would routinely award to a malpractice victim who must spend the rest of his life in a wheelchair after suffering paralysis due to a physician’s mistake. A quarter of a million dollars a year for the rest of the malpractice victim’s life would be a more reasonable measure of the diminished quality of life the victim will experience.

Some malpractice victims will die prematurely due to a doctor’s error. Is $250,000 adequate compensation for the emotional distress a patient will suffer, knowing that her expected lifespan has been cut in half? A patient who knows that she will live only 5 more years instead of 50 should receive the kind of compensation that permits the patient to live those 5 years to the fullest. California’s damages cap prevents juries from awarding that compensation of that magnitude.

Damages caps are an insult to the American system of justice and to the principle of equal protection of the law. Doctors receive more protection than others who commit acts of negligence, while malpractice victims receive less protection than other injury victims. An accident victim who is paralyzed in a collision might be awarded millions of dollars in noneconomic damages, but the same injury caused by a careless doctor will never result in a pain and suffering award of more than $250,000.

The California legislature has done a great disservice to seriously injured malpractice victims. Juries, not lobbyists, should decide the compensation that is appropriate for the victim of a serious injury. Whether they are injured by a truck driver or by a surgeon, victims of negligence should have the same right to fair compensation for a devastating injury.

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