Malpractice Read online

  Copyright © 2017 by Lawrence B. Schlachter

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  Library of Congress Cataloging-in-Publication Data is available on file.

  Cover design by Rain Saukas

  Print ISBN: 978-1-510-7-1259-1

  Ebook ISBN: 978-1-510-7-1260-7

  Printed in the United States of America

  DEDICATION

  I dedicate this book to those who have mentored and supported me throughout the years. They include my wife, Teri Schlachter, RN, for her devotion and counsel in expressing my thoughts and feelings; my parents, George and Mona Schlachter, for their love and sacrifices in providing me the capacities and the opportunity to pursue my dreams; my aunts and uncles, Charlie, Lou, Joe, Shirley, and Anne, who treated me as their own son; to Dean John Ryan, for his loving mentorship in law school; and to Judge Alan Blackburn and Tommy Malone, for their unending support in helping me develop my legal skills and practice.

  Contents

  Preface

  1. The Reality of Patient Harm

  2. Records Patients Aren’t Allowed to See

  3. How I Became a Doctor

  4. How Doctors Cope with Trauma

  5. The Art of Medicine

  6. The Medical Conveyor Belt

  7. The Time Crunch and Other Risks We Face

  8. The Mask of Infallibility

  9. Cover-Ups and Semantic Games

  10. The Elusive Standard of Care

  11. How Good is “Good Enough”?

  12. Why Dr. Codman Got Fired

  13. The Remarkable Case of Dr. Christopher Duntsch

  14. Baseball Changes My Life—Again

  15. Propaganda War and the Myths of Malpractice

  16. In the Courtroom

  17. Every Doctor for Himself

  18. Rational Responses to Malpractice

  19. In Praise of the Responsible Patient

  Endnotes

  Acknowledgments

  Preface

  When you seek health care as a patient, you probably believe that everyone involved is focused on you, is alert, caring, and competent, and that when they operate on you, they know exactly what they are doing. You trust that your health-care providers are people of integrity, and if they made a serious mistake that harmed you, they would be honest about it.

  Unfortunately, the truth is that every doctor who has been practicing for any length of time has harmed a patient. Nobody bats 1.000. Many doctors, if not most, have killed at least one patient. Some of these injuries and deaths are unpreventable. However, the horrible reality is that hundreds of thousands of patients die, and many more are forever maimed, by preventable medical errors every year.

  According to the article, “A New, Evidence-based Estimate of Patient Harms Associated with Hospital Care” in the September 2013 Journal of Patient Safety, about four hundred thousand patients in American hospitals are carried out in body bags each year, their premature deaths associated with preventable medical error. The same study estimated that another four to eight million patients are seriously injured by medical error each year.1

  A more recent study, published in the journal BMJ (formerly the British Medical Journal) in May 2016, identified medical error as the third leading cause of death in the United States, behind only heart disease and cancer. Led by Johns Hopkins surgeon and patient safety advocate Dr. Martin Makary, the study found that if medical error were officially tracked as a cause of death—that it is not tracked is a major problem of its own—it would be blamed for at least 250,000 deaths annually.2

  To make matters worse, most of their victims are left with no recourse. Those who pursue legal action often meet a court system heavily weighted in favor of doctors and their insurance companies. With very few exceptions, most dangerous doctors continue to practice medicine. Most doctors have never been sued, and of those who have, a majority won their cases. Very few of these negligent doctors are ever sanctioned.

  Among the general public, doctors get the benefit of a huge halo effect. We routinely accept their diagnoses as being accurate, even though studies have shown that anywhere from 10 to 20 percent of diagnoses are delayed, missed, or altogether incorrect.3 Victims of negligence often accept doctors’ explanations that a tragic outcome was unpreventable. There are a thousand places where incompetence and negligence can hide in a hospital and within the medical culture. If a seminar leader were to ask a large group of doctors how many of them know an incompetent or dangerous doctor, most hands in the room would go up.

  The vast majority of medical malpractice never becomes known outside of the hospital. Most medical error is not egregious or catastrophic enough to warrant the huge investment of capital to take it to court. Medical error is commonly buried in the hospital where it took place, never making it into the records, or the records are altered. Patients and their families have no way of knowing what happened to them, or whether their doctor is lying to them.

  This is the world I live in, and I know it to be true. I am a licensed physician, a board-certified neurosurgeon, and a lifetime member of the American Association of Neurological Surgeons. I am also a plaintiffs’ attorney and I sue medical practitioners for malpractice when I think the preponderance of evidence justifies that conclusion. Mine is an unusual combination of talents and circumstances, and I will tell you more of my story in the coming pages. I have a doctor’s heart and compassion for both patients and doctors; I also have a lawyer’s awareness that great harm is sometimes done by physicians to patients through narcissism, carelessness, or ineptitude.

  As a blue-collar Brooklyn boy, I graduated from a New York City public high school and college. I became a dentist, then a doctor, and eventually a neurosurgeon. I gravitated to neurosurgery because I knew it would demand the very best of me, and I loved the science of it. Today, as a forensic scientist, I apply what I know about the human body in general—and neurosurgery in particular—to determine if patients with terrible outcomes have been victims of professional negligence. Mine is a highly technical field, and every case I look at has tragic human overtones.

  For obvious reasons I have had to change names and some nonmaterial details to respect patient privacy and stay on the right side of the law. Many, if not most, cases of medical malpractice are settled with an agreement to be silent about the outcome, meaning none of the parties are free to disclose details of the settlement, including culpability of the medical practitioner. As you might imagine, the purpose of this agreement is to protect the doctor, not the patient.

  I have great respect for the majority of neurosurgeons and other physicians who share my high ideals for our profession and who work hard every day to live up to them. The problem is that there are a number of doctors who should not be practicing because they are not only inadequate at what they do, but also dangerous.

  Another major concern is that the system of health-care delivery does not demand physician accountability or full disclosure t
o patients. Consequently, when mistakes are made, they are not properly investigated and victims are not treated fairly. In spite of the so-called patient safety movement, hubris and greed prevent the system from policing itself successfully. In this milieu, patients have little recourse but to engage attorneys to seek redress for harm that was done to them and, especially, to discover the truth of what actually happened to them.

  I do not expect to win friends in the medical profession with the writing of this book. As we will discuss later, the medical culture is insular, protective, and incredibly hostile to any from within or without its ranks who would dare to question their authority and expertise. They reserve a special ire for plaintiffs’ attorneys who represent patients. This anger is manifest by some doctors who come to court as expert witnesses and defend negligent physicians by presenting dishonest testimony.

  To listen to doctors, insurers, media, or politicians, one might conclude there is not much of a problem with medical errors in American health care. In fact, these protectors of the status quo swear that there is a radical infestation of predatory plaintiffs’ attorneys who inspire fear in the heart of every conscientious and dedicated physician in the country. This is the cause, they claim, of dramatically rising health-care costs, and the burden to our justice system of frivolous lawsuits and mind-boggling jury awards for damages.

  Though I will address many of these myths, I am not writing this book as an apologist for the plaintiffs’ bar, nor am I interested in diminishing respect for my profession as a neurosurgeon. I have lived both sides of this great divide. Eighteen years of my adult life have been invested in higher education to become a highly skilled practitioner in my specialty, one of the most demanding in medicine.

  This book has not been written for doctors, or media, or politicians, though I hope some will read it and be inspired to work for change in the industry. My book is intended for patients, which includes all of us, because sooner or later we will all need medical care. When that day comes, we want to believe that medical practitioners and hospitals are held to the highest professional and ethical standards. Regrettably, this is not the case. Insiders are well aware of this. Patients, on the other hand, rarely understand that the hospital can be a very dangerous place and that errors and negligence are commonplace, and, even worse, intentionally covered up.

  A few disclaimers are in order. Even though I am a practicing attorney and licensed physician, nothing in this book is intended as specific legal or medical advice. I have asked a number of people to critique a draft of this book and have greatly benefited from their contributions. However, the responsibility for the content, opinions, and mistakes is mine alone.

  The purpose of this book is not to provide prescriptions for improving or overhauling the American system of health care, and this is not a political white paper endorsing or decrying positions on various tort reform issues, though I will address them more in the following pages. When we are lying very sick in a hospital bed with various tubes or devices leading into or out of us, we are neither Democrat nor Republican; we are citizens all, and we want to recover and get our lives back.

  This book is about the harm doctors do to patients, and the tortuous path patients must take to learn the truth of what happened to them and to find justice. It is about the culture and attitudes that make mistakes more prevalent than necessary. My writing treats tort reform as what it is—a circus sideshow designed to divert attention away from the dangers of American health care. The real concern of this book is that there are unnecessary and preventable injuries occurring in our health-care system. They need to be reduced as much as possible. We must get our priorities straight.

  CHAPTER 1

  The Reality of Patient Harm

  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, due to 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 healthcare error put the issue in crystal clear perspective.

  Yet there has been little progress in improving patient safety in the more than fifteen 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, a US company that provides information about physicians, hospitals, and health-care providers, 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 fifty states and Washington, DC, examining thirty-seven 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.1

  In 2009, Scientific American noted that “preventable medical mistakes and infections are responsible for about 200,000 deaths in the US each year, according to an investigation by the Hearst media corporation.”2

  In 2010, the US 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.3 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 his colleagues reported in the journal Health Affairs that adverse events in hospitals may be ten times greater than previously measured.4

  In 2013, the Journal of Patient Safety reported that about 400,000 patients die, and four to eight million others are seriously injured, from preventable medical error every year.5

  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. However, 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, such as 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 parent
s, Patty and David, refused a gag order that would have prevented them from publicly discussing what happened to their son.

  Michael was a twenty-two-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 and lost consciousness. Each time, a computerized tomography scan—commonly called a CT scan—was taken. The second CT scan showed a very small colloid cyst.

  The cyst was located near the top of his brain, adjacent to the third ventricle. (I am 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 CT 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 CT scan, Michael submitted to magnetic resonance imaging, or an MRI, which confirmed the findings of the CT scan: 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 Michael, who signed the consent form to have the drain inserted. The neurosurgeon presented this procedure as being without risk, only with 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.