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A Bad Medical Result Does Not Always Mean ”medical malpractice” – An Attorney Speaks To Patients

Let’s start with what medical malpractice is “not". It is not just a “bad medical result". If the medicine the doctor prescribes doesn’t solve the problem, it doesn’t mean that the doctor is guilty of malpractice. When the surgery goes bad and the patient is the same, or worse, than before the surgery, the surgeon is not somehow automatically guilty of medical malpractice. When the doctor decides that the most likely cause of a medical condition is one disease and it turns out to be another disease, it doesn’t automatically mean that the doctor was negligent. A bad result doesn’t automatically mean that the patient was given below standard treatment.

Many medical problems are very difficult to solve and even when a patient gets the very best doctor, and the best treatment, a bad result is sometimes inevitable. And that isn’t the doctor’s fault in many situations. No complaint, or claim or lawsuit should be filed in many of these situations where a bad result leaves the patient in the same or even worse condition than when they walked into the doctor’s office. Medicine is a tough profession and doctors should be thanked for taking on hard cases and doing their best. Often patients have conflicting medical conditions that make treatment choices risky. The doctor can’t be blamed for that conflict. Each treatment carries a risk. There are no guarantees.

I have been filing medical malpractice cases against doctors since 1978 and that is what I have learned. On average, nine out of 10 people who come to my office asking about a medical malpractice claim are told by me, after our investigation, that the doctor did a good job and that there is no basis for a legal action. The public needs to know that even when a doctor does an exceptional job for a patient, bad results sometimes happen, and that is not automatically medical malpractice.

I understand that the patient often doesn’t know exactly what happened and is suspicious that a mistake was made. I always tell them to call the doctor and meet and see if the doctor’s explanation answers their concerns. Always call the doctor if you have questions about a bad result and always listen and try to understand. And if that isn’t enough to satisfy your concerns, an attorney who handles medical negligence cases will do what I just described: investigate the facts and the standards for doctors and then tell you if there was malpractice.

Before a claim is brought against a doctor for negligence and the patient suffered an avoidable injury or death, another doctor in the same field must provide an opinion that the treating doctor was negligent or made an avoidable mistake that fell below the medical standard of care.

All human beings make mistakes and all human beings are sometimes careless and lazy. No one can honestly say that they have never made a mistake that they shouldn’t have made. Thanks to medical training and improved standards of care, most doctors go through their entire careers and never make a mistake that seriously injures a patient. Very few doctors are ever subjected to a lawsuit. That is because they study hard in school, train hard as they begin their medical careers and work hard to be careful with their patients’ lives over the years. The facts are clear that a small percentage of doctors are responsible for most avoidable medical injuries. And in my experience few doctors who fall into that class ever admit their mistakes or offer to take responsibility for the resulting harm they have done to their patient. We need lawsuits in cases where people refuse to be accountable and this is such a situation.

There are 98,000 deaths each year in the United States due to “avoidable" medical errors. I stress the word “avoidable" because these are not just “bad results". They are mistakes by doctors that should not have happened. 98,000 deaths each year is a lot. And there are many times more serious injuries due to avoidable medical errors.

If you are reading this article while you wait to see your doctor, you are almost certainly in good hands and you will probably not become one of the 98,000 deaths this year. So what is happening?

I recommend that everyone read “To Err Is Human - Building a Safer Health System" by Linda T. Kohn, Janet M. Corrigan, and Molla S. Donaldson, Editors, Committee on Quality of Health Care in America, Institute of Medicine, National Academy Press, Washington, D.C. published in 1999. In that report they reveal the shocking number of avoidable deaths and then point to a major source of the problem: “A variety of factors have contributed to the nation’s epidemic of medical errors. One oft-cited problem arises from the decentralized and fragmented nature of the health care delivery system--or “nonsystem," to some observers. When patients see multiple providers in different settings, none of whom has access to complete information, it becomes easier for things to go wrong".

Doctors are facing low reimbursements and higher operating costs. They have to see too many patients and their energy is sapped. Consulting with other doctors and understanding the total picture of a patient’s situation is important but there is just no time to do it in a 24-hour day. The health insurance industry certainly contributes to the problem by its treatment of doctors.

Following up on “To Err is Human" Hearst Newspapers published a landmark news story ten years later in 2009 entitled “Dead By Mistake - Patients Beware: Hospital Safety’s a Wilderness of Data" identifying high numbers of avoidable medical errors and few systemic reforms within the medical profession to address the problems. Most frequent medical errors included infection during surgery, misdiagnosis of pneumonia, wrong kidney removed and botched birth. Ten years after “To Err is Human" was published the call for improvement by the medical profession went unanswered. In fact The Hearst report indicates that the rates and numbers of medical errors are probably increasing.

In the years since the landmark report “To Err is Human" over 2 million Americans have died from avoidable medical errors. Claims that defensive medicine in the form of too many tests is a problem cannot be linked to the 98,000 death toll each year. A meaningless test will almost never cause a death. While most patients will never encounter a negligent doctor or suffer from malpractice, the problem is an epidemic that must be addressed by the medical profession. I agree with doctors that lawsuits are a bad way to reform the system. Lawsuits always happen after a tragedy has occurred. But unless the doctors eliminate most of the 98,000 deaths each year from avoidable medical errors, lawsuits are the only answer for injured patients, their families, and the American taxpayer who foots the bills for the injured patients when the negligent doctor refuses to be accountable.

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