Malpractice, p.2
Malpractice, page 2
During the procedure Michael received too much medication, and he stopped breathing. Technicians had to help him breathe while the meds wore off. One of the nurses informed Michael’s father, David, of what happened. Later, when David asked the neurosurgeon if Michael had stopped breathing, the neurosurgeon snapped, “Who told you that?” That could have been a red flag for the Skolniks, but with everything else on their minds, they barely noticed.
After the tube insertion was completed, the neurosurgeon informed Michael and his parents that he must have the cyst removed in order to save his life. He said it would be performed with pinpoint accuracy. He would open the lobes of the brain, and the cyst would be right there.
At this point, Patty and David got a fax from their primary care physician, who was following the situation, that said, “Do nothing. Cyst is not causing any problems and will probably never grow or change.” When they showed the fax to the neurosurgeon, his response was disdainful, as if to say, “This other doctor is a mere primary care physician, and you are just a mom, but I am the neurosurgeon. Who are you going to trust?”
The next evening, when Michael was under the influence of considerable pain medication (we never learned why), the neurosurgeon presented him with a consent form, without his parents—who should have been the decision-makers while he was incapacitated—present. To this day, they do not know what was said or even if there was a conversation beyond asking for Michael’s signature. Recovering from one procedure and significantly medicated, Michael was in no condition to be presented with a legal document. The surgery was to take place the next day. When the parents asked about the consent form, the doctor said Michael signed it the evening before.
The operation they were told would take three hours took six and a half hours. When the neurosurgeon came out, he “pulled back his hat and said, ‘I’ve had the worst year.’”6
Confused, Patty and David asked, “How’s Michael?”
The doctor told Patty and David he hadn’t found the cyst, but had found a little bit of brain matter, and thought he might have punctured it when he went in with the drain. He acknowledged performing “heavy manipulation of the brain.”7
At this point, Patty and David were having trouble breathing, not to mention concentrating. They went in to the recovery room and looked at Michael and were totally unprepared for what they saw. He looked puffy, and his head was enlarged. The next day, when the bandages were removed from his head along with the ventricular drain that wasn’t draining—and had never been needed, anyway—they discovered that the neurosurgeon had performed a craniotomy, removing a portion of Michael’s skull for open brain surgery.
It seems this surgeon did not have the skill or training to do the endoscopic method, which is much less invasive, and he did not bother to discuss alternatives with Michael and his parents—alternatives that would have required a more experienced surgeon.
As a result of a wrong diagnosis and unnecessary surgery, Michael experienced almost every possible complication, none of which were discussed with him or his family: hydrocephalus (swelling of the brain), seizures, pulmonary embolism, intracerebral hemorrhage, brain abscesses, multiple reoperations, infections, sepsis, respiratory arrest, and thalamic pain syndrome.
Michael’s complications left him partially paralyzed, partially blind, and psychotic. He was unable to feed himself, speak, or walk. He suffered for three more years before he gave up and died.
What had happened here? Michael and his parents were never provided with surgical and nonsurgical options. No one ever reviewed with them the risks associated with each procedure. Michael and his parents had no way of knowing about the neurosurgeon’s lack of skill and experience with the surgeries he attempted. There was a wrong diagnosis: the small cyst was not the cause of Michael’s symptoms.
One vibrant, promising life snuffed out by dishonesty and incompetence, and two parents left with the ruins. The Skolniks’ first healthcare insurance company picked up the first $4.8 million of medical costs for Michael before canceling his policy when the fine print permitted them to do so, based on a technicality. A second insurance company picked up additional expenses, as did family members, and finally Medicaid kicked in. There were many big-ticket expenses that were not covered by anything, including by Medicaid, that had to be paid out of pocket. The Skolniks had made significant changes to their home to facilitate Michael’s care, including ramps, changes to the bathroom, electric lifts suspended from the ceiling, a $6,000 bed, and even a specially equipped van to transport Michael safely to treatments. After the settlement, the insurance companies and Medicaid had to be repaid a certain percentage from the settlement. When it was all over, the Skolniks had a home full of equipment they couldn’t use or need anymore, they were broke, and most devastating of all, they missed the sound of their son’s voice.
The neurosurgeon? His malpractice insurance paid up. He found another neurosurgeon willing to testify that his performance had not been below the medical standard of care. Another of his colleagues defended him to local media, saying, “I don’t think he made a mistake, he just had a bad outcome.”8 (As you’ll see throughout this book, this response from the medical community is exceedingly common.) The Colorado Board of Medical Examiners reviewed the case and said they found no wrongdoing. The doctor wasn’t punished at all. Without so much as a slap on the wrist, he moved to another town where he is seeing patients.9 Apparently, this wasn’t the first time he’d had to relocate as a result of difficulties with his practice of medicine.10
If our profession can’t get motivated by 400,000 preventable deaths, why would just one more matter? For Patty and David Skolnik, that one was the joy of their life and their best friend. They grieve for the unfulfilled promise of their son’s life. They are grateful he is no longer suffering. They are angry that they lost him unnecessarily. They feel guilty because they trusted a doctor and didn’t look further. And yes, they are bitter that the doctor who caused it all was not held accountable. A doctor can kill his patient and never have to do even one hour of community service. He gets off easier than a teenager caught stealing a candy bar from the local drugstore.
State legislatures are becoming increasingly aware of public demand for more medical transparency and accountability as the numbers and outcry over malpractice mount, and dozens of states have passed laws that in various degrees strip away the veil of secrecy that has traditionally protected the medical community. Colorado has led the way, in large part owing to the efforts of Patty Skolnik, who led the charge after her family’s experience with this neurosurgeon. Colorado has passed three laws since 2007, including the Michael Skolnik Medical Transparency Act and two expansion acts, in response to Patty and David’s efforts.11
Patty, David, and other family members of patients killed by incompetent doctors crisscross the country, meeting with and speaking to groups of young medical students, interns, and doctors about their experiences. What they have to relate often leaves their audiences in tears. Their listeners are grateful for being reminded of what caregiving is all about; some are so appalled at the callous and indifferent behavior of their chosen profession toward patients they have harmed that they are rethinking their career choices while they still have time to change and still have a conscience.
I can convey information in these pages about what goes on behind the veil of medical secrecy, but I know of no words to adequately describe the empty and bitter void left in the lives of these unfortunate people, for whom the worst day of their life was the day they or someone they loved entered the front door of the American health-care system.
Perhaps the lucky ones were the patients who left the hospital in a body bag; the most unfortunate were those who were so badly damaged that they took years to die, experiencing indescribable pain and anguish and incurring lifetimes of debt—patients like Michael Skolnik. Their Teflon physicians, to whom nothing sticks, move placidly on to their next patient and their next venture, without a glance at the broken lives in their rearview mirror.
If a flu epidemic killed a quarter of a million or more of us in one year, and incapacitated hundreds of thousands more, we would be afraid to leave our homes for fear of catching it. However, we enter our health-care facilities without a single thought about who the people treating us are or what they do or don’t know, and we docilely place ourselves on their conveyor belt. We accept, with very few questions, a culture of secrecy designed to protect bad doctors from any sort of accountability.
License to Kill
It is important to note before we get deep into the issue of malpractice that not all hospitalizations can produce desired outcomes. Some patients are beyond help from modern medicine; they are too sick or dying, and the best we can do is make them as comfortable as possible until the inevitable happens.
Sometimes a patient’s body does something unexpected, and in spite of the best efforts of alert and competent practitioners, the patient gets sicker or dies. A very small number of patients will die in surgery, even though no errors or malpractice occurred. There are adverse events that are not mistakes, not errors, not preventable.
We have system failures, such as what happens with flubbed patient hand-offs. With increasing staff specialization, many different practitioners at varying levels of education and experience are involved with each patient on all three shifts. This is true not only of hospitals, but also of in-home care. Someone seriously ill, perhaps just released from a hospital stay and convalescing at home, may experience a steady parade of caretakers in and out of their house. A successful clinical outcome can be jeopardized by something as simple as failed communications between these caretakers. Sometimes you can tell from the patient’s records or chart who was responsible for a failure, and sometimes you can’t. Sometimes it is due to multiple and cumulative communication failures. Fragmented care results in dispersed accountability.
There are lots of theories about human error and its unavoidability. All of us make mistakes, and perfecting human behavior is not a reasonable option. With the best of intentions, the best of us are going to err sooner or later. The question then is what should be done about the victim, the unlucky patient who was in our care on that occasion?
Theories about the inevitability of human error have led the medical profession to develop protocols and redundancies to prevent the inevitable. In this, modern health care is imitating the progress of other high-risk professions. For example, offshore drilling for oil is an immensely complicated engineering marvel. When damage is done, there has to be cleanup and damage control. Most of all, systems have to be analyzed for their flaws and corrections made. We learn.
Much as doctors might wish otherwise, not all medical error is system error. Some practitioners make terrible, even stupid mistakes. These practitioners not only kill their patients, they often do it over and over again. This small minority of doctors is incompetent, and they make the rest of the profession look bad. Rarely does anyone blow the whistle on them. Whistleblowers, or even expert witnesses, are often subjected to retaliation from their colleagues. As a result, the prevailing mantra is to kill the messenger by endorsing laws that make pursuit of real malpractice more difficult or impossible.
We are living in the age of self- and colleague-preservation by medical professionals who are more businessmen than doctors. The medical profession isn’t interested in true tort reform. What doctors really want is immunity and a no-fault system of voluntary reporting, where no information is provided to the public. All matters of clinical practice would be handled within the profession. To them, tort reform means denying injured patients access to the American judicial system as we know it. No lawsuits. The medical profession will take care of its own.
Just like it took care of Michael Skolnik’s doctor.
CHAPTER 2
Records Patients Aren’t Allowed to See
In 1986, Congress passed a law establishing the National Practitioner Data Bank (NPDB). According to the fact sheet published by the Health Resources and Services Administration (HRSA), the purpose of this data bank “is to improve the quality of health care by encouraging State licensing boards, professional societies, hospitals, and other health-care entities to restrict the ability of incompetent physicians, dentists, and other health-care practitioners to move from State to State without disclosure or discovery of previous medical malpractice payment and adverse action history.”1
In layman’s terms, this means Congress wanted the industry, with an assist from state licensing boards, to police itself. The NPDB was supposed to be a tool for identifying dangerous doctors and preventing them from harming more patients. In reality, it’s been little more than a penlight shining into the deep abyss of medical errors.
Though the NPDB is virtually useless in holding dangerous doctors accountable—for reasons we’ll get to momentarily—it has been useful in giving us an idea of just how many doctors are dangerous, and how many are unnecessarily afraid of malpractice litigation.
Since the NPDB began collecting data in 1990, 82 percent of all doctors have never had a medical malpractice judgment or settlement. Between September 1990 and 2005, just 5.9 percent of doctors were responsible for 57.8 percent of all malpractice payments made during that period of time. Let’s round those numbers off: 6 percent of all doctors are causing 60 percent of all the malpractice payments.2, 3
It gets worse: 1.1 percent of all doctors during that same time period were responsible for 20.2 percent of all malpractice payments, and each of these doctors had four or more judgments or settlements.4
Who are these doctors, and why are the medical societies who are the appointed watchdogs of the profession not doing something about them? An independent analysis of NPDB records by the non-profit consumer rights advocacy group Public Citizen shows that among the group that made four or more malpractice payments, fewer than one out of six of them were disciplined by their boards. There is even a group of doctors who have made ten or more malpractice payments, and of this group, two-thirds were never disciplined by the profession.5
Granted, a settlement by the parties could have been a business decision by an insurer, and the outcome could remain in dispute in some cases. However, when one practitioner has ten or more settlements without discipline from within the profession, it leads an objective observer to think the professional societies are more invested in protecting their professional colleagues from consequences of sloppy and grossly negligent work than in protecting patients. One thing is for sure: the severely injured (or dead) patient is not a priority.
The NPDB includes twenty-one physicians (none are listed by name, but are assigned a random number to protect their identity) who have each paid on average an aggregate of $8 million from multiple malpractice awards, and not one of these doctors has been disciplined by their state medical boards. Here are two cases taken from the NPDB record:
Physician Number 33041 had at least thirty-one malpractice payments between 1993 and 2005, nine for failure to use proper aseptic technique, five for unspecified errors, three for improper management of obstetrics cases, three for improper performance of surgery, three for retained foreign object during surgery, two for delay in treatment of fetal distress, one for failure to treat fetal distress, one for an improperly performed delivery, and one for improper technique. The total damages were $10,150,000.6
A “failure to use proper aseptic technique” means the physician did not take normal and precautionary measures to prevent infection. Proper aseptic techniques include hand hygiene, garbing, movement within range of the patient, staying in the operating room, and proper handling of surgical instruments, such as scalpels, retractors, and needles, which must remain uncontaminated. A gloved hand is only sterile until it touches a nonsterile surface. To put this all into proper perspective, you must understand that aseptic procedures are the kindergarten level of patient safety. This practitioner’s malpractice settlements included failure to meet this most basic requirement on nine different cases.
No disciplinary action was taken by another doctor’s state medical board or any hospital during this twelve-year period:
Physician Number 43923 had at least twenty-one malpractice payments between 1992 and 2003, eight times for improperly performed surgeries, three times for unnecessary surgeries, twice for unspecified equipment errors, twice for surgeries on wrong body parts, a failure to obtain consent before surgery, a failure to obtain consent before blood work, a wrong treatment, an unspecified surgical error, a retained foreign body during surgery, and an improper management of medication. The total damages were $8,722,500.7
A “retained foreign body” means the surgeon left a foreign object inside the patient’s body before stitching the patient back up. This usually means surgical sponges or instruments, including needles, scissors, retractors, and clamps. Preventing this from happening is fairly straightforward: pay attention to what you’re doing, do a sponge count, and look around before you sew the patient up.
The Bulletin of the American College of Surgeons, volume 90, no. 10, in an article titled “The Prevention of Retained Foreign Bodies After Surgery,” said evidence “suggests these events occur because of poor communication between perioperative care personnel.” It continues, “Issues of communication are especially relevant to the problem of retained foreign bodies because misunderstandings and conflict may be the result of many contributing factors—for example, cross-cultural (nurse-surgeon), gender-related (male-female), hierarchical (captain-crew: surgeon OR team).”8
Let’s make sure we have this picture clear in our minds. You are the patient, unconscious under anesthesia, and the surgeon sews you up with a tool or sponge still inside you because the folks around your operating table are experiencing conflict over who’s the boss. It sounds as though the problem begins with the surgeon, who doesn’t want to be told he left something behind, and he certainly doesn’t want to hear this from a nurse or anyone else below his status as Captain.
