The Patient Survival Guide

Calling in the Law, or Not

In medicine, choices that doctors make can mean the difference between life and death or improved health and permanent disability. Physicians are guided by the Hippocratic Oath to “Do no harm,” but mistakes are sometimes made. When a physician fails to fulfill a duty owed to the patient and injury results, there are certainly consequences, sometimes including lawsuits. However, people have different opinions about the act of suing a hospital or a physician, from those who feel such claims lack merit, to those who support a patient's right to recover any damages and punish the wrongdoer.

A longtime friend of mine is a practicing plaintiff attorney, which means his clients (the plaintiffs) are patients who have been harmed by our healthcare system. Here's what he once shared with me and my students during his guest lecture in my University of Pennsylvania class on Adverse Events in Healthcare:

In all my years as a plaintiff attorney, I can tell you there is one thing that I can guarantee 100%, and that is I have never had a happy client. I find that if my client wins, the money does not bring back a person or remove the suffering. If I lose a case, my clients continue to be angry.

I hesitated on whether to include this chapter about lawsuits—or, more correctly, malpractice claims—because, up to this point, I have tried just to teach you the steps to prevent infections. However, there will always be infections. Therefore, it is important for you to know what legal steps you may want or need to take, and how to justify your decision. Since this chapter is titled Calling in the Law, or Not, I want the information to help you understand not just your options, but also the consequences of each option.

As you can imagine, it is hard to find a lawyer who will share “just the facts,” as I like to say. However, I do have the perfect person to do this. Do you remember that budding middle-school researcher who observed fellow students not washing their hands I wrote about earlier? Well, Maryellen Guinan is now an attorney who concentrates on health law. Why would she not do this chapter for her mother?

Think Before You Sue

By Maryellen E. Guinan, Esquire

In 2005, my older brother John, at the time a junior at University of Pennsylvania, conducted a study of Pennsylvania malpractice claims related to healthcare-associated infections. He found that the highest number of cases occurred in the specialties of orthopedics, general surgery, and cardiothoracic medicine (related to the heart and other organs in the chest).1 The sites infected most often were the knees, back, sternum (breast bone), and harvest sites (leg or chest areas from which a vein or artery is removed for use in coronary artery bypass surgery and other procedures).

Of the 154 cases included in John's published study, 27 were withdrawn, 27 settled without a trial, 11 still pending, 9 won by the plaintiff (the injured person), and 5 won by the defense (the doctor or hospital).¹ Despite his finding that 72 percent of these Philadelphia malpractice cases were either withdrawn or settled, John found that it was advantageous to go to trial, since 60 percent of those who did so won their cases. By the way, John became an attorney.

LAWSUITS: THE GOOD, THE BAD, AND THE UGLY

The cost of medical malpractice in the United States is $55.6 billion a year, which is 2.4 percent of annual healthcare spending.² That's a lot of money, but don't assume you'll get a lot of money by suing. The amount you might receive isn't always proportional to the amount of negligence you may have suffered.

First, it's important to realize there's a probability that the case will be settled without ever seeing the inside of a courtroom. Second, be aware that if the case does go to trial, it's still a gamble as to how the jury will decide and what the award could be. Juries vary from state to state and from case to case; therefore, it is nearly impossible to predict the outcome for any particular trial.

How big a gamble is it? Just think about Mrs. N, the woman with the terrible knee infection whose case you read about earlier. I am certain she never thought about alternatives to calling in the law. She believed harm had been done to her by a surgeon with a bad record, and she was sure that the jury would see it that way, too. She never imagined how defense lawyers could turn the case around, making everything seem like her fault. She also didn't realize that in the small town where her case was tried, there was a good chance that several jurors would know the doctor and the hospital.

Legal Fees

What other shortcomings and unintended effects should you think about before deciding to sue? Most importantly, don't count on full compensation. Administrative costs for legal and processing fees will probably eat up more than 50 percent of any money you're awarded.3

Also, don't assume that lawyers will want to take your case, even if your claim has merit. Unfortunately, lesser claims (those not yielding a large cash verdict) may not be attractive because the costs of proving that malpractice has occurred are likely to exceed the award. In contrast, claims lacking great merit are often brought to trial because lawyers believe the plaintiff is so “sympathetic” (a child with permanent injuries who will not be able to attend college or have a career, for instance) that they are likely to receive a windfall from a generous jury.

High and Low

Furthermore, don't be deceived by huge monetary awards that are publicized in newspapers and other mainstream media. Behind the big dollar numbers is the reality that plaintiffs often settle for less than the jury awards. Here's how it happens: Before a verdict comes in, for example, while a jury is deliberating, both sides may sign a “high-low agreement” that guarantees that the victim will receive at least some minimum amount of money (the “low”), but not more than a capped amount (the “high”). Thus, a seemingly high jury award may be capped at a lesser amount via these agreements.⁴

Damages

What, then, is the “proper amount” of compensation, and what form should it take? The law recognizes three categories of recoverable “damages” in cases involving wrongful action that causes harm (a “tort action”): (1) compensatory, (2) punitive, and (3) nominal.5

Compensatory damages, in the medical liability context, place a monetary value on the injuries incurred by the patient and the costs of future medical care that is needed as a result of the medical error or negligence. The overall “cost” of an injury is not limited to the patient's hospital bills, but also includes nursing services, physical therapy, drug costs, lost wages, and diminished earning capacity of the injured person, among other expenses. Your lawyer may call on medical experts to testify about your future medical needs, and also an economist to estimate future expenses based on your life expectancy, inflation, and other factors.⁵

Punitive damages are awarded to punish the defendant (the healthcare provider and/or hospital) to potentially deter others from the same bad behavior or to gain justice for you, the plaintiff. The jury must find that the defendant acted in such a repulsive manner based on clear and convincing evidence.⁶

Nominal damages, the final category, represent an award given to the plaintiff to show a legal wrong was committed and the plaintiff suffered as a result, but did not have sufficient or actual damage that would require compensation. The nominal award (usually one dollar), is the court's way of acknowledging that a legal wrongdoing has occurred.⁶

If you were the plaintiff, would you be satisfied with nominal damages? After a long and costly lawsuit, probably not. But that could be all you'll come away with.

APOLOGY: IS “I'M SORRY” ENOUGH?

Even if you do receive a nice settlement, you may not feel satisfied because there's no mechanism within the courts to guarantee that corrective action will be taken, or that you'll receive an apology, or even an expression of regret and concern. So, it's important for you to ask yourself, “What is my true goal in suing? To gain money or is it something else?”

Extra-Legal Rewards

It really doesn't have to be about money. “Extra-legal” (non-monetary) objectives often motivate people to sue for medical malpractice.7 More than dollars, you may be eager for:

Apologies and admissions of fault
Receiving retribution for the doctor's conduct (a public reprimand, perhaps)
Obtaining answers to what had gone wrong in your treatment
Having steps taken to prevent recurrences

Assuming you are sure of what you really want, you must be prepared for the realities of the medical malpractice system, which may transform your original wishes into legally accepted claims that are more realistic and suitable for a courtroom.⁷ For example, you may start out with the goal of making a change in the way a hospital operates (“a system-wide change”), but the limitations of a lawsuit may be a cash settlement and nothing more. Although you have been “compensated,” you may be dissatisfied with the result.

Disclosure

One thing that does make patients happier is getting a clear explanation of what happened to them. The public expects physicians to be honest, open, and forthcoming about medical errors. In fact, research shows that people are largely unanimous in wanting full disclosure when medical care goes wrong, including (in order of diminishing priority):⁸

A clear statement that an error has occurred
An explanation providing full details about the error
A sincere apology
Reassurances that the something is being done to make sure the error does not happen again
Financial compensation for injury, pain, or suffering
Accountability on the part of the responsible physician

As you'll notice, financial compensation is almost last on the list. The other items are similar to the extra-legal objectives you just read about. Apparently, most people feel that apologies and full disclosure are more important than financial compensation. If there are other ways to get that disclosure, perhaps you won't need a lawsuit after all.

Good Communication

Disclosure requires communication, but many physicians avoid any contact with patients whom they may have harmed. Often, a lack of communication or a timely response by the physician can be the deciding point that causes patients to seek a malpractice claim.9

Here's what frequently may happen: After discharge from the hospital, patients usually call the doctor's office if they're concerned about increasing pain or the wound looking worse. More often than not, the patient doesn't get to speak with the doctor and is just told it is “normal” and to come in for the regularly scheduled visit. If the patient does develop an infection or other complications, she may become bitter, seek revenge, and file a lawsuit. It all comes down to lack of communication and trust in the physician-patient relationship.

Teaching the “3 Rs”

Because lawsuits are so expensive and time consuming, some professional organizations are trying to promote methods to improve communication. For example, the malpractice insurance company COPIC, which serves about 6,000 Colorado and Nebraska physicians, sponsors the “3 Rs Program—Recognize, Respond, and Resolve.” Physician members enroll in the program by signing a commitment to receive communication training and follow the 3 Rs technique.¹⁰

The purpose of the 3 Rs Program is to teach physicians how to facilitate candid, early communication with patients who have experienced an unanticipated medical outcome. They should:

Recognize that a problem has occurred,
Respond to the patient in a timely manner, and
Resolve the situation by communicating empathetically with the patient and arranging for additional care or services the patient may need because of the medical injury.

The idea is that an apology and an upfront financial offer could save the patient/physician relationship and could mean the difference between settlements costing just thousands of dollars and medical lawsuits costing many millions in attorney fees and jury awards. Nevertheless, the 3 Rs Program does not remove a patient's right to pursue legal action. Patients are not required to sign a waiver in order to receive program benefits. If a patient submits a written demand for compensation or pursues a legal route, he or she becomes ineligible for further program benefits at that point.

“Medical Apology Laws”

Consider Mediation

What if your doctor hasn't learned his medical 3 Rs and your state doesn't have a medical apology law? That doesn't mean you'll have to file a lawsuit. Consider mediation instead.

In legal situations, mediation is a dispute resolution process in which an impartial third party, known as a “mediator,” facilitates negotiations among the parties, with the assistance of their attorneys, to help them reach a mutually acceptable settlement. The major distinction with mediation is that a mediator does not make a decision about the outcome of the case.¹⁵

Mediation often works well in cases of medical malpractice or negligence where barriers to settlement are personal or emotional (for example, a child dies from a medical error), or where people want to tailor a solution to meet their specific needs or interests (such as a lecture presented in a person's name or some other ongoing way of remembering the person who died or was harmed). Mediation is also an attractive alternative for hospitals and physicians who want a more private forum for resolving disputes instead of the publicity a lawsuit can create.

Voluntary Mediation

Rush Presbyterian-St. Luke's Medical Center in Chicago implemented a voluntary mediation program in 1995 that successfully brought resolution to medical malpractice cases, while lowering the legal costs.16 Still in use today, their method is different from traditional mediation in that two co-mediators are utilized, instead of a single mediator. Both mediators are expert medical malpractice attorneys, as well as trained mediators. One attorney assists the plaintiff (the injured person) and the other assists the defense (the hospital and/or the doctor).

About one-third of the malpractice suits at Rush Hospital go into the voluntary mediation program each year; 90 percent are successfully settled. Because of its success, the program has served as a model for other hospitals that look for ways to bring patients, doctors, and hospital management together around a table, instead of the courtroom.

Some hospitals are also seeking to integrate co-mediation into a health system's risk management system, so that mediation becomes a first step, rather than the dispute heading straight for the courtroom. In 2004, Philadelphia's Drexel University College of Medicine was the first institution in southeastern Pennsylvania to adopt a formal medical malpractice mediation program. Drexel's program relies on the co-mediation model, consisting of a team of a plaintiff's attorney and a defense malpractice attorney working together.¹⁷

Mandatory Mediation

To combat rising healthcare costs and legal liability expenses, some hospitals are requiring mandatory mediation. For example, the University of Florida Health Science Center recently completed a preliminary trial of the Florida Patient Safety and Pre-Suit Mediation Program.¹⁸ Before filing a formal lawsuit, the plaintiff and the defendant are required to participate in confidential, non-binding mediation conducted by a neutral third-party mediator.

Arbitration: Praise and Precautions

What would you do after spending many hours in mediation without achieving a reasonable settlement with your doctor or hospital? You've probably read about similar disputes between large employers and their employees. When mediation breaks down, the workers often go on strike. At that point, local officials may insist that both sides move into arbitration.

You may have heard the term arbitration thrown around in the same sentence as mediation and litigation. They're often confused. Simply put, arbitration and mediation are alternatives to litigation (a lawsuit in court). Both arbitration and mediation use a neutral third party. The main difference is that with arbitration, the “arbitrator” generally acts much like a judge. The evidence is presented and argued by both sides (through their attorneys), and the arbitrator issues a decision.

Arbitration has surfaced in the medical context because some doctors and hospitals are using “arbitration clauses” in forms that patients are asked to sign when they agree to medical treatment. By signing, you've agreed to mandatory binding arbitration. That means you've agreed not to sue in court; instead you must go through arbitration.

You've probably seen and signed an arbitration agreement without even realizing it, for example, in your cell phone, rental car, and credit card contracts. Often consumers are unaware that by signing the contract, they have “agreed” to waive their right to a trial. If it's a dispute with your cell phone company, this may seem trivial. However, when the dispute is between you and your doctor or hospital about treatments that affect your health and well-being, you may be signing away more than you think.

Several years ago, the American Arbitration Association, the world's largest arbitration organization, stated publicly that they will no longer hear and decide arbitration agreements dealing with healthcare issues unless the agreement was signed by the patient after the dispute arose. In other words, if you signed an agreement mandating arbitration before you sustained a medical injury, you should not have to participate in arbitration when you file a lawsuit.

Avoid any possible problem by taking the time to read the fine print before you sign any hospital forms. Be sure that you're not signing away your rights to pursue a legal claim through mediation, lawsuits, or any other form of conflict resolution.

Another Approach: Disclosure-and-Offer

Voluntary mediation and arbitration have shown some success, but have failed to become widely used. Now, some hospitals are trying a new technique called “disclosure-and-offer.” This approach links financial compensation to improvements in patient safety.19

How this works is that hospitals adopt a practice of being candid (open and sincere) about medical injuries, voluntarily informing patients when an error has occurred and voluntarily compensating anyone who is injured. This disclosure-and-offer approach has been implemented by a handful of hospital systems and liability insurers, building on an early experiment at the Veterans Affairs Hospital in Lexington, Kentucky.²⁰

The idea behind disclosing errors to patients and then offering some form of compensation is rooted in a philosophy of hospital risk management. In other words, hospitals hope that being candid about medical injuries, apologizing when appropriate, and providing quick financial compensation will eliminate patients' and families' impulse to sue and will spur institutional learning and safety improvements.21

FILE A COMPLAINT

All of the options you've read about so far—lawsuits, mediation, arbitration, and disclosure-and-offer—are used mostly for major medical injuries. But what if you're angry and disgusted about poor care you received in a hospital, even though you have no injuries to show for it? Unfortunately for you, having frustrated expectations does not necessarily imply negligence or a meritorious claim. You can't sue just because you had to wait too long for a bed pan or if you were almost given the wrong medication but the nurse caught the error in time. A mistake with consequences needs to have been made.

Hospitals and doctors are required to follow many healthcare guidelines and standards. If your care falls below that level of quality, the hospital can be penalized by loss of its license or accreditation.

That's where the Joint Commission comes in. Accreditation from the Joint Commission is the premier certification that the best hospitals want to obtain. The Joint Commission's mission is “[t]o continuously improve the safety and quality of care provided to the public through the provision of healthcare accreditation and related services that support performance improvement in healthcare organizations.”²² The Joint Commission's seal of approval is the gold standard in quality of care and best practices. Through the Joint Commission and its certificate programs, patient safety has been pushed forward onto the agendas of hospital boards nationwide.

How to Complain

If your hospital is accredited by the Joint Commission, the administrators have signed an agreement that they will follow medical guidelines and will take action whenever patients register a complaint. So, if you have a complaint about the quality of care at an accredited hospital, go to the Joint Commission website (http://www.jointcommission.org/accreditation/hospitals.aspx) and fill out their simple complaint form.²³ Enter the complaint online or send it by mail, fax, or e-mail.

You may submit your complaint anonymously, but if you provide your name and contact information, the Joint Commission will inform you about any actions taken in response to your complaint, or contact you if additional information is needed. The form also provides a space to write a narrative of the incident and to include a brief overview of your complaint. Just telling your story to “the authorities” may help you feel much better.

Another Approach

Many people do get a satisfactory response from the complaints they file. However, some consumer groups think that mere complaints don't do enough to protect patients' safety. It may require something stronger to motivate hospitals to take patient safety more seriously.24 That's because, by law, the right to safety cannot be enforced against a physician, but can be used only against a hospital, as an institution which has a duty to ensure patient safety. A case heard by the Pennsylvania Supreme Court expressed this argument more clearly, stating that “Corporate negligence is a doctrine under which the hospital is liable if it fails to uphold the proper standard of care owed to the patient, which is to ensure the patient's safety and well-being while at the hospital.”²⁵

But how does a patient assert his or her right against a large entity such as a hospital? One idea that's been proposed is to establish hospital care and safety standards. That way, if a hospital fails to meet those standards, it would be liable for damages when complaints are made against individual doctors who jeopardize patients' safety.

One organization that has acted on this is “The 100,000 Lives Campaign” of the Institute for Healthcare Improvement (IHI), which set a goal to have hospitals agree to implement six safety interventions aimed at improving healthcare quality. These procedures include use of rapid response teams, providing reliable care for acute myocardial infarction (heart attack), and preventing central line infections. As the name indicates, the goal is “saving 100,000 lives.”²⁶

The 100,000 Lives Campaign has become a “standard of care” for hospitals. Those hospitals that haven't participated are left to “ … explain why particular interventions will not improve patient safety in their institutions.”²⁷ This standard puts the focus on patient safety systems in hospitals, rather than on the actions of individual physicians. That way, hospital boards have a strong incentive to make their environments safer.

PUBLIC DISCLOSURE AND PATIENT EMPOWERMENT

Thanks to the culture of safety generated by consumer groups, the National Practitioner Data Bank (NPDB) was created in 1986, as part of the U.S. Healthcare Quality Improvement Act. The NPDB collects and stores extensive reports about individual doctors' malpractice lawsuits, settlements, and verdicts, along with “other compulsorily reportable actions, such as licensure revocation or suspension, medical staff discipline, and the exclusion of a practitioner from Medicare or Medicaid reimbursement.”28 The good news is that the threat of being reported to the NPDB may improve physicians' behavior. The bad news is that disclosure of NPDB data is strictly limited, so the general public is not permitted to access this important information.

However, some methods are available for consumers to obtain limited information about physician errors. One such mechanism is through investigations performed by Medicare's peer review organization. Thanks to successful federal court cases, Medicare beneficiaries are now able to request investigations by “peer review organizations” as a way to identify substandard physician care. The government is compelled to disclose the results of those investigations.²⁹