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The CMG Voice

A "Culture of Perfection" prevents doctors from admitting mistakes, improving patient safety

Posted Friday, September 19, 2014 by Tyler Goldberg-Hoss

One part of my job is talking with regular people about what they think about cases I either have already decided to take, or ones I am considering taking, and getting their opinions on various aspects of the claims. Often it is to see how they react to my client’s claim that a health care provider did something wrong – a failure to give a medication, a birth injury, a delay in diagnosing a serious condition, or something else.

I often have to suppress my reaction to some of the ways people bend over backward to give the doctor or nurse the benefit of the doubt, although it has gotten easier over time. Doctors and nurses don’t just make mistakes, they are “honest mistakes,” and they are always trying to help the patient when they do. So regular people tend to forgive many such errors.

As someone who never defends doctors, and only represents claimants against them, I have not spent a good deal of time considering what doctors and nurses think about expectations the public has on them. An interesting and recent TED talk discussed this point of view, and concluded that most doctors, instead of admitting mistakes, would rather hide them than report them and face repercussions.

The speaker, Dr. Danielle Ofri, calls this “culture of perfection” a barrier to safety improvement.

You can read a synopsis of the talk here:

To reduce medical errors, doctor-author explains the need to undo toxic culture of perfection

Interestingly, Dr. Ofri relates a time when she herself declined to report an error. She states that it was due to the “overriding fear of malpractice suits that punish doctors who admit errors.”

Unfortunately, if only Dr. Ofri and her colleagues had a better idea, not from their insurance carriers, but from malpractice attorneys such as us who live day to day in the trenches, how difficult bringing such claims is (read here for a previous post on the topic), or that patient victims are much less inclined to bring suits against doctors who admit their mistakes, maybe there would be less of a “culture of perfection.” Still, I’m not convinced this “overriding fear” is the sole reason for failing to report errors.

Regular folks in everyday life make mistakes, and most of the time there is some strong pull to not admit them. Certainly, most of that involves repercussions. But rarely in everyday life do those repercussions involve legal action. More often, it’s hard to admit I made a mistake because I see myself as someone who doesn’t make mistakes, and doing so creates some cognitive dissonance. Or, there may be non-legal repercussions – having someone angry at you, feeling embarrassed, or just feeling bad. This difficulty admitting mistakes sounds not only like how I feel, but it also sounds a lot like how my five year old reacts.

I’m not saying doctors are like five year olds, but then again, I am saying that this inability to face the mistakes we’ve made permeates our culture, from little kids to professional adults, like doctors and lawyers. And with respect to doctors, one crucial difference is the magnitude of harm that can be caused. It is for that reason I hope the health care industry continues to improve and eliminate tragic errors. Not for the doctors, but for the patients.

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Doctors don’t lose their licenses when they settle claims

Posted Monday, September 15, 2014 by Tyler Goldberg-Hoss

A common thought among jurors these days is that bad things will happen to the defendant doctor if they find against him, and as a consequence, bad things might happen to the juror or her family. This is particularly true in more rural areas. A verdict against a local doctor might mean his insurance rates rise, they leave the area, and there won’t be enough doctors around to care for the juror or her family. At the very least, the common thinking goes, the doctor will lose his ability to practice – his license will be revoked.

As disconcerting as these thoughts are, they are far from the truth. And these common misconceptions make it difficult for patient victims to get justice in the courtroom. As a result, both sides account for this bias in attempting to resolve claims prior to trial, often meaning discounted settlements for patient victims.

I have yet to see statistics on the exact correlation between malpractice payouts and doctors losing their licenses, but recently there has been some investigation into this in Florida. CBS was looking into a particular doctor there who had settled 11 malpractice claims in the last decade or so, and was continuing to practice medicine. The last claim his insurance carrier paid was due to a failure to monitor his patient post-operatively, resulting in death.

Digging further, CBS looked at the 25 doctors in Florida with the most malpractice payouts. They found that only four had lost their licenses, and three of those lost them due to either drug trafficking or billing fraud. The fourth lost his license after failing to comply with the terms of a lesser punishment, which meant that not one single doctor of the 25 with the most malpractice payouts lost their licenses solely for providing poor medical care.

These claims run the gamut, from birth injuries to emergency room mistakes, radiology misses and surgical malpractice. But the result is the same: doctors do not lose their licenses when they agree to settle claims against them.

Here is a link to the full article:

Despite multiple malpractice payouts, doctors often keep practicing

Certainly, it is not a fun experience to be the defendant in a medical malpractice lawsuit, or any lawsuit for that matter. I can understand empathy for those in that situation, and I typically feel empathy for those doctors I bring cases against. It’s natural.

But I know that the real victims in my cases are those who have suffered horribly – folks who have lost loved ones, folks in wheelchairs, folks with brain injuries who have lost the ability to think, lost the ability to see, lost their ability to be independent. I don’t feel bad because the doctor’s professional life is over, because it almost never is.

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Defensive medicine, slick talking plaintiff lawyers and public perception

Posted Friday, September 12, 2014 by Tyler Goldberg-Hoss

I recently gave a talk at Seattle University on medical malpractice from a plaintiff attorney’s perspective. In the audience were health care providers, law students and lawyers. I had some sense heading into the presentation that there might be those in the audience less “receptive” to a plaintiff attorney’s perspective. This is because unfortunately, many (most?) of the health care providers in our country have been misled about medical malpractice plaintiff lawyers and lawsuits.

I personally know a number of physicians, nurses and other health care workers. I know their employers – and the insurance carriers who cover them – tend to overemphasize the possibility of a claim arising from something they do or fail to do in course of their work. So I can certainly understand it when I received some skeptical looks at the beginning of my talk.

It’s a similar mindset many folks have who call my office with a possible claim. Without getting into the reasons why this false national impression exists, it does. Health care providers have to practice defensive medicine because some sue happy patient finds a slick talking lawyer who bamboozles a jury into giving some outlandish lottery-style award.

So, over the course of my 45 minutes, I enjoyed discussing with these skeptics the ins and outs of a typical case, and over that time I think it’s safe to say they came away with a different perspective on the work I do and the hurdles plaintiff malpractice victims face.

Our health care system is much maligned, and it certainly has the room for improvement. Even with all that improvement, doctors, nurses, ARNPs and physician assistants are still human and will continue to make mistakes. And unless something radical happens to our national consciousness, only when the care complained of is egregious and the harm catastrophic, will juries find fault and allow victims to recover some portion of their loss.

My partner and I love what we do: we get to help those who tend to need it the most: victims who are seriously injured, who have had their lives turned upside down through no fault of their own. People who are unable to work, who have medical bills piling up, who regularly receive letters from creditors for unpaid debts. We fight these uphill battles every day, typically against excellent defense attorneys retained by the defendant’s insurance company.

And still, I find myself feeling sad on a daily basis, when I have to tell someone that I can’t help them with their claim. It’s one of the worst parts of my job. Perhaps I will live to see the day when the national mindset has changed: from money hungry plaintiffs and their lawyers with their hands out asking for money, to a more empathetic point of view. Here is this person who is hurt. Let’s hold good looking and well meaning doctors and nurses accountable when appropriate, not only so that this person gets money that can help this injured person, but also so that the entire system – for all of us – will continue to get safer.

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Group Health Switches Hospitals from Virginia Mason to Swedish

Posted Tuesday, September 9, 2014 by Gene Moen

For the past 15 years, since it closed its own Capital Hill hospital, Group Health has had its Seattle surgeries and other hospital services done at Virginia Mason. Under that arrangement, Group Health physicians would perform surgical procedures and provide other hospital services to its patients, but other services, including nursing and laboratory services, would be done by V.M. personnel.

It was a sometimes complicated arrangement, and attorneys representing Group Health patients had to determine the employer of those who may have been negligent during a hospital admission. For example, a V.M. hospitalist may treat a Group Health patient in an emergency or when a Group Health physician was not available.

Group Health has now announced that it is ending its relationship with V.M. and will now partner with Swedish Medical Center to provide Seattle-based hospital services. It considered proposals from V.M., Swedish, and the U.W. Medical Center but chose Swedish in part because the latter’s obstetrical and maternity services would be a better fit.

Even under the arrangement with V.M., Group Health handled its own maternity services at its Capitol Hill clinic. Now, all birth-related services will be moved to Swedish in the spring of 2016. Given the complexity of birth trauma medical malpractice claims, plaintiff attorneys will now have to scour the medical records and do research to be sure who were the employers of those who may have negligently contributed to bad birthing outcomes, such as birth-related asphyxia, brachial plexus injuries, or newborn cerebral palsy.

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When Should A Lawyer Become Involved in Medical/Legal Claim?

Posted Friday, August 29, 2014 by Gene Moen

It is not uncommon to receive a telephone call from a patient who is still in the hospital being treated for a serious condition, or has recently been discharged and is undergoing follow-up treatment. They may have been told by a friend or family member that they should “get an attorney immediately,” so they call you.

The advice I usually give is that it is premature to involve attorneys while they are still receiving care for the injury that was caused by possible medical negligence, whether it was a surgical error, medication mistake, or something else. I tell them to wait until they are “fixed and stable” and the treatment is completed, and then we can obtain all of the medical records and evaluate whether the facts give rise to a viable medical negligence claim.

I explain that, until we know what the long-term damages are, it is difficult to assess whether a claim should be brought. I also explain that if their current treatment doctors think an attorney is involved or a claim is being considered, it may result in the doctor being more cautious about what is put in the records, because doctors don’t like to have to testify in a malpractice lawsuit.

Usually, when I tell the potential client that there is a three-year statute of limitations, they are reassured that nothing needs to be done immediately in order to protect their legal interests. I often tell potential clients that they or family members should keep a simple diary or narrative of what they are going through, since memories will fade.

There are some exceptions to this advice. It is possible there are important fact issues that won’t be clear in the records and an early lawsuit may be needed in order for depositions to be taken while memories are still fresh. Or there may be issues of retaining evidence, such as removed surgical hardware or pathology specimens that need to be preserved. For example, manufacturers tell doctors to send back any failed medical implants or equipment, and an attorney may need to advise the doctor to keep such potential evidence rather than returning it to the manufacturer.

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Chemnick | Moen | Greenstreet
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