Who’s responsible when the hospital makes a medical mistake?

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“All men make mistakes, but a good man yields when he knows his course is wrong, and repairs the evil. The only crime is pride.”— Sophocles, Antigone”

In an article written by Shefali Luthra on November 9, 2015 in the Washington Post, she tells the story of Charles Thompson of Greenville, S.C.

Mr. Thompson checked into the hospital one July morning in 2011, expecting a standard colonoscopy. He never anticipated how wrong things would go.

Partway through, a doctor emerged from the operating room to tell Thompson’s wife, Ann, that there had been complications: His colon may have been punctured. He needed emergency surgery.

Thompson, now 61, almost died on the operating table after experiencing cardiac distress. His right coronary artery required multiple stents. He also relies on a pacemaker.

“He’s not the same as before,” said Ann Thompson, 62. “Our whole lifestyle changed — now all we do is sit at home and go to church. And that’s because he’s scared of dying.”

When things like this happen, questions arise: Who’s responsible? If treatment makes things worse — meaning that a patient needs more care than expected — who pays?

It depends.

Despite provisions in the 2010 health law that put added emphasis on quality of care, entering the hospital still carries risk. Whether because of mistakes, infections or plain bad luck, those who go in don’t always come out better.

More than 400,000 Americans die annually in part because of avoidable medical errors, according to a 2013 estimate published in the Journal of Patient Safety. In 2008, the most recent year studied, medical errors cost the country $19.5 billion, most of which was spent on extra care and medication, according to another report.

If a problem such as Thompson’s stemmed from negligence, a malpractice lawsuit may be an option. But lawyers who collect only when there’s a settlement or a victory may not take on a case unless it’s exceptionally clear that the doctor or hospital was at fault.

That creates a Catch-22, said John Goldberg, a Professor at Harvard Law School and an expert in tort law. “We’ll never know if something has happened because of malpractice,” he said, “because it’s not financially viable to bring a lawsuit.” That leaves the patient responsible for extra costs.

Ann and Charles Thompson maintain that he experienced an avoidable error. The hospital denied wrongdoing, she said, but the physician’s notes indicated they had been advised of the risks of the procedure, including injury to the colon. The Thompsons tried pursuing a lawsuit but couldn’t find a lawyer who would take the case. The hospital and the doctor declined to comment, with the hospital citing patient privacy laws.

Because of his heart problem, which led to the loss of his specialized driver’s license, Thompson lost his truck-driving job. He lost the health insurance he had through his job, depriving him of help in paying for follow-up care. The couple paid close to $600,000 out of pocket, depleting their life savings. They struggled to pay other bills until Thompson was awarded disability benefits, his wife said.

“You would expect if [health-care providers] make the mistake, they would make you whole,” said Leah Binder, President of the Leapfrog Group, a nonprofit organization that grades hospitals on their record of preventing errors, injuries, accidents and infections. “But that is not what happens. In health care, you pay and you pay and you pay.”

There’s no single rule for how hospitals handle the cost of care when patients have bad outcomes and fault is disputed, said Nancy Foster, Vice President of Quality and Patient Safety at the American Hospital Association.

Some hospitals have rules requiring that a patient be told right away if something happened that shouldn’t have and, to the best of the institution’s knowledge, why. Typically, those rules stipulate that if the hospital finds that it erred, the necessary follow-up care is free. Hospitals may not have an obvious financial interest in admitting guilt, though research suggests that patients are less likely to sue when hospitals are transparent about medical mishaps.

“If the [need for further] care was preventable, we’re waiving bills,” said David Mayer, Vice President of Quality and Safety for MedStar Health, which operates 10 hospitals in the Baltimore/Washington area.

Virginia’s Inova Health System has a similar policy, said spokeswoman Tracy Connell.

Most hospitals don’t have such rules, said Julia Hallisy, a Patient Safety Advocate from California. That may change: A number of professional and safety groups are urging more hospitals to adopt them. Supporters include the American College of Obstetricians and Gynecologists, the American Medical Association, Leapfrog, the National Quality Forum and the Joint Commission, which accredits many health-care organizations. The federal Agency for Healthcare Research and Quality is also on board.

As an accident and injury attorney, I know that the negligent acts of others can devastate victim’s lives and the lives of their families.  I see this on a daily basis.  Can you imagine a world where people took responsibility for the harm they caused another?  I, and all other personal injury attorney’s, would be out of a job, and frankly, that would be fine with me.

It is encouraging to see some medical facilities “owning up” to their mistakes and trying to do all they can to heal their patients/victims.  Unfortunately, it is often the liability insurance companies that make the decisions of whether they will take responsibility for the actions of their insureds and “do the right thing” by paying a claim.  I like to think that I give every opportunity to the insurance companies to do the right thing, often with the encouragement of their own insureds.  However, the ultimate decision to resolve a claim or not lies with the insurance companies and their defense attorneys, who make more money the longer a case is drawn out.  What’s the solution?  While I am encouraged at the “do the right thing” movement, unfortunately for a lot of my clients, they have to go through the time and expense of litigation to achieve justice.

Stay safe out there!

YOUR accident and injury attorney,

Marianne Howanitz

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