“First, Do No Harm” — But When There Has Been Harm, Here’s What Patients and Families Must Know To Do.
Matthew H. H. Young, MD, JD, CMQ, Esq.
Medical malpractice may be the most under-reported top cause of death and disability in the United States, creating a “silent pandemic” of unknown but likely epic proportions that will surely kill far more Americans than COVID-19. But with COVID-19, there is no doubt in my mind that medical malpractice has only gotten worse. With patients deferring needed medical visits and procedures (often with the negligent approval of their providers), and with wide-sweeping immunity to lawsuits being granted to medical providers under the guise of COVID-19, the healthcare system as a whole is now set up to commit more medical malpractice than ever before. These immunities to lawsuits mean that any negligence caused by providers to a patient can be swept under the rug if that patient’s COVID-19 swab comes back positive, essentially immunizing malpractice even when the positive test was just an incidental finding and when it in fact was the negligent care that actually killed the patient.
Patients and families need to be more vigilant than ever, because medical malpractice has not gone away — instead, it has only gotten worse. I say that — not just as a Harvard-trained physician who has witnessed medical malpractice, not just as a Harvard-trained attorney who has litigated medical malpractice, but as a victim of medical negligence after my father died from medical malpractice.
Doctors and attorneys should not have a monopoly on this knowledge that all patients and families must know when they suspect that they’ve been harmed by medical malpractice, and so I offer a list of must-know action-items that every patient and family should take into consideration if they suspect they’ve been catastrophically harmed by a medical error, medical mistake, or medical negligence:
1. Involve Other Medical Providers or Facilities Immediately
- Consider seeking a second opinion.
Sometimes, getting another provider or team involved may change the entire clinical trajectory. I have often seen a different provider or specialty consult service step in and recognize what has been missed or delayed by the primary team, and sometimes they can execute the right rescue maneuvers to save the day. Even if they can’t, their documentation often will be very helpful in proving what went wrong.
- Consider transferring care to another facility.
The treating hospital may be severely limited in resources and expertise. Discuss with the care team the option of transferring the patient to a major medical center, such as an academic medical center or tertiary care hospital. The patient can often be transferred expeditiously via ground or air ambulance. I have often seen these subsequent treating providers rapidly diagnose and try to fix what went wrong or what was done incorrectly at the prior treating facility. Sometimes, it is too late, but at least these subsequent treating providers will often identify the errors committed by the previous providers, albeit usually in a hushed or discrete way in their documentation, but nevertheless can prove exceedingly helpful when trying to piece together and prove what went wrong.
2. Demand That Autopsy Be Performed
Too many families come to me with a dead loved one and have no idea what caused the death. When we look at the death certificate, it is largely unhelpful because it has been filled out by a provider who has poor insight into what caused the death of their own patient (or else they’d have prevented it), or the provider knows what went wrong but they’re conflicted from putting down that they themselves caused the death (“medical error” is not permitted to be listed as a cause of death, and even if it were, what provider would actually put that down?). Autopsy can be very helpful in figuring out what killed the patient, but unfortunately too few are being done.
A word of caution, however: do not automatically accept as true what the autopsy says to be the cause of death. Often, the pathologist’s interpretation is colored by what the clinical care team documents, and if the clinical care team missed a crucial diagnosis or attributed the cause of death to something else that takes on a similar appearance postmortem, the pathologist can erroneously anchor on that diagnosis, be swayed by confirmation bias, and simply reconfirm the primary providers’ interpretation of what went wrong. I have seen this happen too often where a pathologist even with autopsy gets it wrong in part because the previous providers did not provide the pathologist with the full picture.
Understand also that an autopsy may very well be indicated due to the circumstances of the death, but may not be offered to the family unless they specifically request it. It always pains me when I ask a family why an autopsy was never done when it should have been done, and the family tells me it was simply never offered to them by the treating team.
3. Write Down Your Recollection of Events
While still fresh in your mind, write down everything you remember that was said or done. If possible, consider contemporaneously recording or documenting the care provided, but only if doing so complies with the laws and policies of your jurisdiction. Many times, a nurse or other healthcare personnel will mention in passing to the patient or family what went wrong or simply that something went wrong, but never document that in the medical record (for obvious reasons). Providers are human, and it is only human to want to unburden oneself by telling the truth. I often will be scratching my head trying to figure out what went wrong (because, no surprise, it wasn’t documented) — but will then speak with the family about their recollection, and often the family will recall a nurse or other provider having said something to the family that provides a clue or fills in that missing puzzle piece. Another important reason to write down your recollection is because there will inevitably be discrepancies within the official medical record and your contemporaneous documentation may help to recreate an accurate chronology of events and reconcile discrepancies.
4. Request a Copy of the Medical Records
The task of copying and providing a patient’s medical records usually has been contracted out to some third-party servicer. Figure out who to contact (usually the health information management or medical records department) to make the formal request, and ask for the full set of medical records. Federal law requires that every patient have unfettered access to their medical records, but understand that there may be fees or other charges associated with obtaining medical records and that you may need specialized help from a doctor or lawyer to read and understand what is being said (or sometimes, more importantly, what isn’t being said).
A word of caution: understand that even if you request “all available records,” almost inevitably the set of records provided to you will still be incomplete. It is very common for critical documents to be missing or withheld. Sometimes, a document won’t be provided unless you know to specifically name and ask for it or find a way to prove that it exists. Because the eye does not see what the mind does not know, you will miss out on key records if you aren’t familiar with the intricacies of the particular kind of medical malpractice being investigated.
5. Ask Providers To File An Incident Report
We place a tremendous amount of trust in our healthcare institutions and allow them to police themselves through morbidity and mortality conferences, patient safety organizations, and quality assurance committees. The activities and proceedings of these committees and investigations are usually completely privileged and confidential, meaning patients can’t find out what was said, what conclusions were made, nor is any of it discoverable or admissible in a court of law under certain legal protections afforded to providers. Having sat through many of these kinds of investigations and conferences, I can say that while some of them are quite good, many are overwhelmingly useless and amount to white walls of silence (or “white coat” walls of silence). However, certain documents like initial incident reports can often escape this black box of peer review privilege and can be discoverable and admissible in a court of law. These incident reports can be very helpful in figuring out what went wrong, even though the subsequent investigations usually are sealed. Therefore, consider asking if a provider — oftentimes it is the nurse who is tasked with filing these patient safety reports — will file a report, especially when there has been a disclosure that something went wrong or if you think the providers may not document it.
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What should I do if I think there’s been a catastrophic injury or death due to medical malpractice?
If you can, get a lawyer. There is simply no better way to get the answers you’re looking for, to find the truth of what happened and what went wrong, and to receive the compensation you or your family deserve.
But be warned: there are many charlatans and “personal injury” attorneys holding themselves out as competent medical malpractice attorneys even though they have absolutely no business offering the services of a medical malpractice attorney and have little to no understanding of medicine.
Do your homework. Interview many different firms and find the major ones in your state or region that specialize in this area of litigation and possess the legal and medical expertise and experience to take on such cases.
Please do not sign up with the first firm that agrees to investigate your case, and don’t be discouraged if one or multiple firms turn you down and reject your case (oftentimes, they don’t know what they’re doing!).
And if they do agree to investigate your case, don’t sign any fee agreements with them until you are confident that there is no other firm better positioned with a better track record to take on your case and provide you with the absolute most competent and most aggressive advocacy possible. Because, no matter how compelling your case may be, you’re always going to need the best attorneys and the best medical expertise to win, and just like buying a house or finding a spouse, it is a major life decision that will tether you to a legal team for many years — a legal team that could make or break your case. In choosing a lawyer, you are potentially putting at stake millions of dollars. So go with the best or you may get nothing.
Should I Meet With Hospital or Healthcare Providers?
Only if you are represented by counsel. Understand that what you say to these potential defendants is considered a “statement by a party opponent,” and so, under most scenarios, what you say is admissible against you as evidence in a court of law. In other words, assume that what you say can and will be used against you should there be subsequent litigation. Also understand that there are preemptive compensation programs being offered by hospitals to try to get patients not to sue. Never ever sign or agree to any offer of compensation by a hospital or other entity unless you have reviewed everything with your own attorney who you trust.
What If No Attorney Will Take My Case?
Many prospective clients who have been unable to find an attorney to represent them will try to file a complaint through other avenues, such as the hospital or healthcare organization, a government agency, a regulatory body, the state medical board, or some such other organization. I find that these groups generally don’t care or ever respond in any meaningful way or ever take any meaningful action. Certainly, no compensation will ever come from such an endeavor, and so it is imperative to find legal representation and use the civil justice system to its fullest extent because that is exactly what it was designed for: to investigate, to deter, to compensate injured parties, and to hold wrongdoers accountable.
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In the end, actions taken by patients and families may prove life-saving, or in the aftermath, may help establish enough of a paper trail to pursue litigation. Ultimately, litigation is the only way to get a thorough and transparent investigation, because a law firm can spend thousands of hours investigating the case, involve dozens of medical and forensic experts, and expend hundreds of thousands to millions of dollars depending on the size of the case. There is no greater accountability mechanism than litigation, nor is there a surer way of ensuring deterrence and compensation. Those are the twin aims of our tort system, and its broad powers of discovery and right to a trial by an impartial jury make our civil justice system the greatest in the world. As I have written before, I do not believe that adequate compensation will ever be achieved nor will a completely thorough, transparent investigation ever take place unless there is litigation. I’ve never ever seen it happen otherwise, even with the biggest, “best” hospitals in the country. If we do not file suit, there will be no truth, no deterrence, no prevention, no compensation, and no justice.
As usual, none of this writing should be construed as legal or medical advice. Always talk to your personal doctor or lawyer who you trust before doing or deciding on anything with medical or legal implications. My writing is for general informational purposes only, but I hope it can help some families in their time of need.
May Your Pens Be Forever Mightier Than Their Scalpels,
Matthew H. H. Young, MD, JD, CMQ, Esq.