We've all heard of some egregious, newsworthy medical errors: sponges, clamps, and towels left in the abdominal cavity after surgery, operating on the wrong body part (known in medical speak as "wrong site surgery"), patients being dropped from beds, surgical flash fires in the operating room--I could go on.
I'm often asked: "In cases of blatent negligence, don't they just settle those right away without a lawsuit?" The answer, suprisingly to the public (but not to me) is: "usually not." But "upon further review," as they say in the NFL, the reasons are fairly clear.
Take any of the above examples of preventable medical errors. Any medical procedure is a team affair, involving surgical nurses, circulating nurses, surgical techs, not to mention the surgeon. Many hands touch the patient. Now take the example of the "foreign object left behind" like the 8 inch metal clamp left tucked behind Mr Jones' small intestine when they were removing his bowel obstruction.
When the radiology tech drops her morning coffee upon first seeing the clamp on film weeks or months later, the bad news spreads quickly and up the chain to the "risk management" department of the hospital. Their job is to get to the bottom of what happened. When the surgical "team" is informed about what happened, many times finger pointing rather than "mea culpa" is the order of the day.
What's more, hospitals often hide behind "peer review" legal protections as a means of not being transparent with a family about what happened. Peer review is an internal process where hospitals investigate medical errors and incidents, usually through a committee, in order to improve patient safety. Ohio, like many other states, protects this process by making the investigation privileged. This may be well and good for future patient safety, but the family of someone who just had the wrong side of his brain operated on usually wants to know what the heck happened. Many times, they are met with some nice person from the hospital who essentially kicks the can down the road, or speaks in vagaries, or occasionally invokes the "peer review" card by saying "I can't get into that per hospital policy, but I can assure you we have made changes to make sure this doesn't happen again" blah blah blah.
Some hospitals are getting smarter about this and are being more transparent about what happened and explain how, for example, a patient with a wristband that said "allergic to morphine" was given ample doses of it. They're learning that invoking "peer review" after a head shaking medical error goes over like the proverbial meadow muffin in the punch bowl.
But I can't tell you how many times I've seen hospitals dodge and weave instead of fessing up and admitting error. And nobody on behalf of the physician or hospital approaches the family or their attorney to resolve the claim without a lawsuit being filed. Their message many times seems to be: "Yeah, we screwed up, but go ahead and sue us and spend thousands on experts, and we'll get our own experts to say what we need them to say, and we'll see you down the road."
Some of us are old enough to remember the Fram oil filter commercial that ran during almost every football and basketball game I watched as a kid. A laughing mechanic overhauling an engine said at the end: "Fram oil filters--pay me now, or pay me later."
Paying later seems to be their default position, despite the fact that the price is steeper.
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