New York Personal Injury Law Blog: A Tale of Two Hospitals: One Covers-Up and One Apologizes

Eric Turkewitz, The Turkewitz Law Firm, New York, NY  

Monday, July 7, 2008

 

A Tale of Two Hospitals: One Covers-Up and One Apologizes

The contrast between these two screw-ups couldn't be more striking. In one hospital, a patient dies in an emergency room and the staff tries to cover up the depth of their negligence by doctoring her medical records. And in the other, wrong site surgery results in an apology to the patient, an email to the entire staff and a blog posting to the world.

I covered the first case last week, when a woman was videotaped in the emergency room of Kings County Hospital collapsing and dying while being ignored for an hour. Half an hour after she collapsed, and while the security camera recorded her on the ground, some genius wrote in her medical chart that she was "awake, up and about" and had just used the restroom.

And now we have the polar opposite, courtesy of Paul Levy, the President and CEO of Beth Israel Deaconess Medical Center in Boston at his blog Running A Hospital. Mr. Levy lays out the circumstances of what happened. While he leaves out the details that might identify the patient, he spares nothing in the analysis of how the hospital reacted.

The hospital sent out a detailed memo to the staff last Thursday about the incident, which was subsequently picked up by White Coat Notes, the Boston Globe's medical blog. The memo details how the surgeon was "distracted by thoughts of how best to approach the case" on a hectic day and operated on the wrong side of the body.

The original memo was blunt:
This week at BIDMC, a patient was harmed when something happened that never should happen: A procedure was performed on the wrong body part. With the support of all our Chiefs of service, we are sharing this information with the whole organization because there are lessons here for all of us.
As we all know, the cover-up is almost always worse than the initial incident. Any student of political scandals knows that. But the same holds true in the field of medical malpractice. The notes in the chart that cover-up the malpractice tend to infuriate juries. A forthcoming acknowledgement of a mistake and an apology would not be treated the same way.

So what does Mr. Levy want to do now? Check this out:
While we explore lots of ideas, one already in my mind and that of this Board member would be to make a video with the actual people -- doctors, nurses, surgical techs -- who were in the OR at the time to explain what they saw and felt and what they learned from the experience. While they might be in too much distress to do this right now, they might agree over time, and their doing so would create a powerful message at every orientation, at nurses and departmental meetings, and conferences. Of course, if the patient would agree to participate, that would lend even more power to the story.
This type of conduct is simply unheard of from my view in the medical malpractice world. I've taken testimony from hundreds of doctors. Exactly one has acknowledged that he made a mistake. Mr. Levy seems hell bent here to destroy the White Coat of Silence that exists widely through the medical community. (See also: How Medical Malpractice Gets Covered Up)

If more hospitals and doctors acknowledged mistakes and sought to learn from them -- as Beth Israel Deaconess is doing -- it would probably go a long way to putting medical malpractice attorneys out of business. And the reason is really quite simple, and human. Worse than being injured by negligence is adding insult to the injury by covering it up. It is anger that most often causes potential litigants to call medical malpractice attorneys. And that is why many medical practitioners are being encouraged to say they are sorry when such mistakes occur. (Addendum, see also, Why Patients Call Lawyers)

There are some folks that will never learn and will continue to cover up. But there are some folks, like Paul Levy, that seemed determined to make that type of conduct a thing of the past.

See also:
Updated with more links (and a ton of comments at the original source):

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Comments:
"a patient dies in an emergency room and the staff tries to cover up the depth of their negligence by doctoring her medical records"...... "some genius wrote in her medical chart that she was "awake, up and about"

Eric, for someone who is always saying "I don't have all the facts here" aren't you prejudging here? I haven't read anything that states that there was a "coverup" going on. Have you? I suspect that charting came from someone to lazy to actually look at the patient.
Incompetence....yes. Coverup.....Where is the evidence?
Not acting very lawyerly are you Eric (or maybve you are $$$$$$$).

About the white coat of silence. Go back and actually read the annuals of IM article you are quoting, not some USATODAY or Reuters soundbite. The conclusions are concerning and merit further eval but are not a wholesale indictment on the profession. In the future be inquisitive, read the journal article not the soundbite from some clueless journalist who hasn't even read the original article themselves. .
 
If the notes were made without seeing the patient, then it is more than incompetence. A wholesale fabrication of phony notes is not simple negligence. As to your comments about $$$, I don't know where that comes from. I don't represent any party in this action. If I did represent someone (as I did in a recent series on trying a case), I would say so.

As to the White Coat of Silence, my original posting on the subject that I linked to does not make "a wholesale indictment of the profession." The data makes clear that it is a very real problem, but "wholesale indictment" is over the top and not something I said, or ever meant to imply. In fact, I quoted this part: 46% of doctors admitted they knew of a serious medical error that had been made but did not tell authorities about it.

Just under half indicates a problem, but not "a wholesale indictment."
 
Eric you have not given one iota of clear evidence to support a planned coverup. I am a doc, I have seen things documented over the years that could not have happened. My worst was an o/n set of vitals on a VA patient that had been clearly dead for the better part of a whole shift. You tell me, is this a planned coverup? Look, I am not justifying what happened. It is clearly wrong. I frankly doubt it was a planned coverup rather than lazy incompetent staff. Don't you think the staff of all people know there is a camera in that room? I would expect a lawyer like yourself would act a little more professional than to scream COVERUP, when you were not there.
PS: I will say it again. You appear to have a severe deficiency when it comes to actually READING the original medical journal articles that you cite from the cliffnotes USATODAY/Reuters version. Try reading the actual article not parroting what some clueless wannabe medical journalist has interpreted from the article. You might be surprised as to the difference.
 
I never said "planned coverup." That is generally an oxymoron. Planning takes time and thought. Most coverups are unplanned panics to cover one's own behind when a problem develops.

As to the article you referenced, you're going to have to show me where I was wrong. I think that you may have inadvertently exaggerated my interpretation of it. I have not used it as a wholesale indictment of the medical profession, but rather, to indicate that there are problems that need to be remedied. I don't think that is anything you disagree with.
 
In 2003, I attended a presentation on making videotapes in order to improve quality, presented by Overlook Hospital in Summit, New Jersey. They videotaped the patient too. It was emotionally powerful.
 
A truly astounding contrast. One has to wonder the motivation behind both hospital's revealing actions.
 
We hear all the time about the "incompetent" and "lazy" staff, but we rarely hear about the Hospital's role in Medical error. Until there is a change in focus Nurses and Doctors will remain the easy scapegoat for Hospitals engaged in the Deliberate Negligent Understaffing of clinical areas. Unsafe Nurse to Patient ratios, long shifts with mandatory overtime and skipped relief breaks: just blame it of the Nursing shortage and push regular staff to continue working while dangerously fatigued. Exploited Nurses are leaving the profession rather than take increasing risks with unsafe situations where they feel overwhelmed.

I was left continiously scrubbed into Surgery without a break for 8, 10 and on the worst occasion 12 hours straight. Twelve hours standing under sweltering OR lights, without a snack or even a single sip of water; that was 12 hours without a chance to urinate! Break scrub to leave the OR for a run to the bathroom and you can be charged with "patient abandonment." The Geneva Convention does not allow such inhumane treatment of working POWs, but it is OK for Hospital staff? The public are shocked to hear that an instrument or sponge got left inside the patient, but the work environment has become so toxic and exploitive it is a wonder that more mistakes aren't made by exhausted, stresses out staff.

When I reported being left stranded in Surgery and expressed my concern over patient safety I was fired. Please visit my MedTEAM Blog: "Transparency for Equal Accountability in Medicine" to read about the C.U.T! Campaign to "Control Understaffing Today." I welcome comments on the 21 C.U.T! Campaign Goals. Disgusted by a shocking experience with a corrupt Compliance Line at my Hospital that offered zero protection from retaliation, I lost my home in the US and returned to England. Healthcare Whistleblowers in the US deserve working conditions conducive to the safe provision of Medical care. Malpractice needs to shift focus because beleaguered US Medical professionals want to see Hospitals held accountable for their negligent staffing. Please respond or contact me direct.
 
The questions is, would you represent the patient in his/her med mal claim against the hospital and the doctor in Case #2? I'm betting you would. And, I'm betting that you would extort a settlement in excess of the actual damages (presuming that it was not an amputation case). Many wrong-site procedures don't cause any long term harm. But a great case can be made. Let me take a stab at it (I've handled med mal defense on a handful of cases, but have been mostly a business litigator for my career of 7 years):
Case #2 is a disturbing case of medical malpractice. Many hospitals have adopted comprehensive policies to prevent wrong-site surgeries (including abandoning the practice of marking the wrong site with an X and instead marking it with a "NO").
In this case, a surgeon with plenty of time to prepare (but lots of incentive to hurry so he could get to the next patient and earn more money for himself and the hospital) approached a patient on the wrong side and nobody in the room (anesthesiologist, nurse anesthetist, nurse, etc.) thought to point out that he was on the wrong side.
I'll take a third of your 40%.

Long story long, the only thing hospital #2 did was paint a target on their back and the back of their surgeon and admit liability. It will not save them money in the ensuing med mal case.

It was the honorable thing to do, and they should be applauded. But until taking responsibility in the med mal world actually benefits docs and hospitals, this sort of behavior will not develop into a trend.
 
would you represent the patient in his/her med mal claim against the hospital and the doctor in Case #2? I'm betting you would. Yes.

And, I'm betting that you would extort a settlement in excess of the actual damagesThen don't be a professional gambler for a living. A case is worth only as much as a jury says it is. And if the hospital 'fesses up and apologizes, then a jury will be very understanding. Any verdict would be much more modest than if the hospital was caught in a cover-up. Because angry jurors tend to view the case through angry eyes.

I'll take a third of your 40%.I don't get 40% because I don't want to be disbarred. Legal fees start at 30% and slide down to 10% as the recovery increases, giving NY some of the lowest legal fees in the nation.

There is no shortage of people who call my office because they are mad. Mad that something went wrong and they didn't feel they received accurate information as a result. That doesn't mean they have a legit med mal case, but that is very often the incentive to pick up the phone and make the call.

Spending time explaining things to patients will decrease the number of calls to lawyers and, in the event of error, decrease jury awards.
 
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