Do We Actually Need More Malpractice Attorneys?

Although doctors still stiffen visibly in the presence of the word “malpractice,” today fewer cases than ever are filed. Over the past 20 years, instead of settling claims quickly, malpractice insurance companies fought back. This turned the tide as fewer and fewer cases ruled in favor of the plaintiff.

Malpractice attorneys, paid on a contingency basis, receive fees only if they win. Lose a case and a malpractice attorney walks away empty-handed after investing sometimes tens of thousands in unpaid hours and out-of-pocket costs. It’s not a profession for the faint of heart.

Personally (and remember, I’m in the minority here), as much as I’d dread being on the receiving end of a med-mal suit, you as a patient need to be able to sue for damages against a physician or hospital that botches your life or kills a loved one. The hovering threat of med-mal is the only available system that effectively acts as behavioral modification therapy to prevent your doctor from doing a slapdash job.

There are lots of myths about med-mal, including the idea that rising premiums escalate health care costs (untrue–premiums have been steady for years), that doctors are able to self-police and don’t need the specter of a med-mal attorney (untrue–there are almost no professional disciplinary actions taken against doctors), and finally that juries give outrageously high awards (untrue–99.5% are less than $1 million).

Death by healthcare

This support of medical malpractice attorneys might seem like a strange way to begin a Health Tip until you consider a freshly published article from the British Medical Journal. A careful analysis of hospitalizations showed that medical errors are the third leading cause of death in the US. You read that correctly: heart disease is first, cancer second, and death by healthcare error third.

I don’t think physicians were too surprised at this. The old idea that doctors are able to bury their mistakes likely goes back to the Middle Ages, but don’t take “burial” literally. Researchers realized that the US healthcare system buries its mistakes on your death certificate rather than in the ground. No matter who’s signing off on your departure, no one (doctor, funeral director, coroner) lists the cause of death as “medical error.”

The current medical diagnostic coding system, called ICD-10, was devised to maximize insurance billing, not to collect statistics. Although there are more than 69,000 possible ICD-10 diagnoses—from appendicitis to Zika—there’s no diagnostic code for medical error. If there is no code, there’s no reimbursement, and of course someone writing it in by hand does nothing but open the writer to the wrath of bosses or peers.

By the numbers

To reach their extraordinary conclusion that medical errors constitute the third leading cause of death, researchers examined four previous studies that analyzed medical death rates from 2000 to 2008.  Based on 35,416,020 hospitalizations, they found that 9.5% of deaths were caused by some sort of medical error. This comes to about 250,000 deaths per year, roughly the population of Louisville, Kentucky. Coming in third, medical error managed to knock chronic lung disease to fourth place.  

But listen up. These researchers were examining only hospitalizations. What about medical deaths outside hospitals?

Also pretty frightening was the conclusion, published in the Journal of the American Medical Association a few years ago, that correctly taken prescription drugs are the sixth leading cause of death in the US.

While we’re at it, let’s move from medical deaths and drug-related deaths to the word “wounded,” as in medical wounds or wounded by health care. We never use the word wounded in healthcare statistics, but perhaps we should. Instead we encounter “wounded” in the context of military war casualties. By clicking to the Wikipedia entry listing total casualties for every US war, you’ll see a column for “Total US Deaths,” another for “Total US Wounded,” and then, adding the two together, “Total US Casualties.” Traveling down the list, war by messy war, it averages 3.0 to 3.5 wounded for every death.

Could this multiple apply to health care? I don’t see why not.  Tripling the 250,000 deaths would bring us to 750,000 Americans annually “wounded” by health care.

The walking wounded, or worse

As I read over this chart of wasted and wounded lives, I couldn’t help but carry the military analogy a step further. Consider yourself, the patient, as the common foot soldier and the healthcare system itself as one enormous battlefield. Instead of military fatigues, you’re in a hospital gown. You may survive, be lucky enough to call yourself a veteran, and if whatever you had is now gone you’ll enjoy the veteran’s benefit of improved longevity.

But if something goes wrong you’ll be among the wounded or the killed. In war, both sides are controlled by the top brass, made up of politicians and generals. In our healthcare system, the top brass are doctors and hospital administrators on one side and the insurance industry on the other. The top brass, in war or in healthcare, are rarely casualties.

How many millions emerge from their healthcare experience worse than when they started? How many patients survived surgery, a drug reaction, or misguided psychotherapy but were never really healthy again?

Shocked as we are by the idea of medical-related deaths coming in third, we’d be truly overwhelmed if ever a survey were taken among the survivors of our healthcare system. Something simple, like “Has any encounter with health care left you with more medical problems than you started with?” “If yes, what happened?”

Besides prompting you to wonder where you put your Xanax, there are two take-aways from this Health Tip:

• Your chances of becoming a health care statistic (killed or wounded) are considerably reduced by avoiding the system as much as possible. By now, I hope you know you can do this by eating healthfully, exercising regularly, and making a point to reduce stress, avoid tobacco, wear a seat belt, etc. It’s your body—take care of it yourself.
• I told you we might need more malpractice attorneys.

Be well,
David Edelberg, MD