Read the original article as published on medium.com here.
I believe medical malpractice is by far the leading cause of death and disability in our country. And I say that, not just as a physician with an MD from Harvard Medical School who has witnessed widespread and egregious harm committed within our healthcare system, not just as an attorney with a JD from Harvard Law School who has reviewed hundreds of meritorious medical malpractice cases, but also as a son who lost his own father to medical malpractice in 2009.
According to ProPublica, more than 1 million patients are harmed each year by the US healthcare system. Estimates put forth by highly esteemed medical institutions and medical experts range from 100,000 to more than 400,000 deaths a year as a result of preventable medical harm.
The most recent estimate put the number around 250,000 — however, that number included only in-patient hospital deaths. It excluded the billions of out-patient and other healthcare visits and interactions taking place annually that result in negligence and death. It also doesn’t take into consideration the fact that there are fates worse than death. Medical malpractice often causes horrific injuries, traumas, and life-long disabilities that do not result in death.
Because of the severe bias and under-reporting of medical harm by both patients and especially medical providers, there is no accurate estimate of the true magnitude of morbidity and mortality caused by medical negligence. As a result, many have called this the silent pandemic.
In July 2020, I decided to forsake my career in medicine to take on a much bigger and deadlier pandemic that will ultimately harm and kill more Americans than any other disease: preventable medical harm.
I believe medical malpractice is overwhelmingly the leading cause of death and disability in our country. I say that, not just as a physician with an MD from Harvard Medical School who has witnessed widespread and egregious harm committed within the healthcare system, not just as an attorney with a JD from Harvard Law School who has reviewed hundreds of meritorious medical malpractice cases, but also as a son who lost his own father to medical malpractice in 2009.
After receiving three degrees from Harvard and becoming a physician and an attorney, I decided to leave medicine and take care of patients in a different way. It was a difficult decision because I am the 18th doctor in a family of doctors spanning three generations and two continents.
Now, I am one of the physician-attorneys at the renowned law firm Ross Feller Casey LLP.
My message is simple: the healthcare system needs to take a hard look at itself in the mirror. Yes, healthcare workers are heroes. Yes, they deserve to be put on a pedestal. But that narrative cannot exist unchallenged and to the exclusion of another deeply rooted truth: the American healthcare system is so broken that it hurts and kills more patients than just about anything else imaginable.
- Medical malpractice is insidious. Unlike other causes of death, it is prohibited from being listed as a cause of death on Certificates of Death. As a result, it cannot be counted by the CDC. And even if it could be listed, what medical provider would ever put down that they were the ones who caused the death?
- Medical malpractice is diffuse. It isn’t easily identifiable. It doesn’t easily conform to the other categories of “causes of death,” like heart attack, stroke, cancer, etc.
- Medical malpractice also comes in many different shapes and forms. You cannot screen for it or test for it. The only real way to prove it is by finding a lawyer who knows what they’re doing, and finding an honest, brave, and enlightened group of expert physicians willing to testify that there was in fact a deviation from the standard of care and that, to a reasonable degree of medical certainty, it caused the harm. That is an incredibly difficult burden to bear for patients who become plaintiffs.
- Medical malpractice gets covered up. To make it even more difficult, the healthcare system has been allowed to “police” itself through confidential, privileged discussions like morbidity and mortality conferences, peer review proceedings, and other quality, safety, and root cause analysis meetings. None of that evidence is admissible in court. None of that is made available or accessible to patients and their families.
- Medical malpractice leaves patients with limited options. Patients are forced to litigate in order to find the truth and to have any hope of a potential recovery. Patients are forced to sift through Google search results and paid attorney advertising to find a qualified advocate. Their task is daunting and monumental. They must find attorneys and medical experts who are smart enough and brave enough to figure out and believe in their cases and bring forward a claim.
- Medical malpractice victims are usually unable to find legal representation. The vast majority of harmed patients will never find representation because the civil justice system has created an adverse economic situation whereby only the cases that have the most catastrophic damages are economically feasible to bring (especially when the costs to litigate these cases exceed >$100,000 — and that doesn’t even include attorneys’ fees, whether hourly or contingent).
Unfortunately, medical providers are the ones causing the harm, and they’re also the ones complicit in the coverup. They, and especially the insurance companies, are also the beneficiaries of widespread “tort reforms” and caps on damages that have done absolutely nothing to improve patient safety, healthcare quality, or reduce healthcare costs or insurance premiums.
Caps on non-economic damages have only served to disenfranchise and disproportionately impact women and minorities who have lesser wage claims and therefore reduced economic damages. Corporate medicine and insurance companies are the primary beneficiaries of a mass disinformation campaign that started with “Hot Coffee” — which itself was a mass misinformation campaign (so go watch the documentary “Hot Coffee”) — and falsely alleged that there were rampant “frivolous” medical malpractice lawsuits. In fact, what we now know is that there are too few lawsuits, and probably only about 1–2% of patients with a legitimate claim ever go on to file one “Medical-malpractice litigation infrequently compensates patients injured by medical negligence and rarely identifies, and holds providers accountable for, substandard care.”
Even during this global pandemic, we should be very careful about enacting further tort reforms or granting even temporary tort immunities, thereby extending undeserved shields against lawsuits to healthcare entities and providers while exposing vulnerable patients to harm and removing any recourse they might otherwise have.
Patients, families, and their loved ones who have been harmed have paid too high a price and made too great a sacrifice to be marginalized, anonymized, and dismissed.
Patients need to understand and consider their legal options and be empowered to become plaintiffs if they so choose. If we wish to improve patient care, then we must recognize the importance of accountability and make every patient aware of their legal rights and options.
Patients do not come to us because they want to bring a frivolous claim or “jackpot justice.” They come to us because they are in the most dire circumstances. Lost income, lost life, pain and suffering, medical bills racking up. They have no choice. And for those injured who are taken care of by Medicaid and government services, why should the American taxpayer be paying for the negligence of the healthcare system? Hospitals, providers, and their insurance companies who are flush with cash are the ones to whom the cost should be allocated. That is their purpose.
In the meantime, I pray that every injured patient, every family, finds the strength to become their own advocate. You must believe in your case or have the awareness and desire to take action and seek legal help. If you don’t believe in your case, how can anyone else? You must not be afraid to challenge authority. You must not be afraid to seek out legal assistance. But you also must be smart about it. Just like any other major life decision, you have to do your homework and do the research into the various law firms in your state or region. Finding the right attorney can make or break your case. Ask them the right questions and make sure they are in it for the right reasons. Do not just sign up with the first lawyer or law firm that agrees to take your case. Also remember that there are time limits to bringing a claim, so proceed with all deliberate speed.
Nothing about this healthcare crisis — this silent pandemic — will ever change unless action is taken. I don’t believe that adequate compensation will be achieved or a completely thorough, transparent investigation will take place unless there is litigation. I’ve never ever seen it happen otherwise. If we do not file suit, there will be no truth, no deterrence, no prevention, no compensation. No justice, no closure, no peace.
And for those who cannot file suit, we have to find a better way to organize against a common enemy. The patient safety network is too fragmented and fractured and not unified or coordinated. We need our own advocacy group and our own lawyers and lobbyists at both the state and federal level. We cannot just leave it up to the doctors or the lawyers or the politicians or the judges and the juries. Too often they have failed us and continue to fail us.
We must be our own advocates. I believe in this mission. I believe this is my life’s mission. I have forsaken my medical career in order to do the work that needs to be done. It is an infinitesimally small price to pay compared to the mass casualty and suffering that our healthcare system has wrought through medical errors, medical negligence, medical malpractice, and other medical torts, harms, and wrongs.
May your pens be forever mightier than their scalpels.
Matthew H. H. Young, MD, JD, CMQ, Esq.