Why You Are Safer on the Highways Than in a Hospital
Most people feel that driving on the highways is a high-risk activity. Trucks, speeders, tourists and distracted drivers combine to sometimes make South Florida’s roads seem like a demolition derby. But a careful examination of the facts reveals that you are much more likely to be killed by a medical mistake than a negligent driver.
In its landmark 1999 report “To Err is Human,” the Institute of Medicine reported that as many as 98,000 people die yearly from medical mistakes in hospitals. Although widely disputed at first, this number has gained acceptance in the medical community. But this number actually grossly understates the magnitude of the problem. In 2010 the Office of the Inspector General for the Department of Health and Human Services concluded that medical mistakes and poor health care caused or contributed to 180,000 deaths in Medicare patients alone each year.
Most recently, further studies have assessed the carnage that results from poor medical care. In September 2013, Dr. John T. James published an article on evidence-based estimates of patient harms associated with hospital care in the Journal of Patient Safety (Vol. 9, No. 3), which concluded that somewhere between 210,000 and 400,000 patients die each year from preventable harm caused by health care errors. That makes medical mistakes the third leading cause of death in America (behind only heart disease and cancer). Traffic crashes kill a paltry 32,000 each year by comparison.
The latest studies have focused on diagnostic mistakes. “This is more evidence that diagnostic errors could easily be the biggest patient safety and medical malpractice problem in the United States,” says David E. Newman-Toker, M.D., Ph.D., an associate professor of neurology at the Johns Hopkins University School of Medicine and leader of the study published online in BMJ Quality and Safety. “There’s a lot more harm associated with diagnostic errors than we imagined.” This study analyzed data from 1986-2010, far greater data than had previously been studied. (Johns Hopkins, 4/23/2013) The data suggests that misdiagnosis errors may cause 160,000 deaths and serious injuries.
As many as one-third of hospital visits lead to hospital-related injuries, according to a report published in April 2011 in Health Affairs (Vol. 30, No. 4). The Congressional Budget Office (CBO) found that there were 181,000 severe injuries attributable to medical negligence in 2003. (Congressional Budget Office, December 2008). Yet most patients are kept in the dark. As few as 2 percent of medication errors are reported to patients. Consumers are left to their own devices to figure out whether their condition was caused by malpractice.
So what is the recourse for Floridians who are injured or killed by medical mistakes?
Florida has a very complicated, stringent and often-criticized medical malpractice law that severely limits the access to legal help when someone has suffered a medical mistake. Florida’s Medical Malpractice Act (Fla. Stat. 766), which is seemingly amended yearly by the Legislature, includes everything from presuit screening, notice requirements, limits on damages, abrogation of common law and statutory bad faith, limits on expert witnesses (and requirements that they be certified by the Florida Board of Medicine) and many other mechanisms that were ostensibly enacted to protect doctors and hospitals from what was perceived as a hostile environment. To top it off, Florida doesn’t even require that doctors carry malpractice insurance. As a result, a majority of those practicing in South Florida “go bare.”
The concept of the “frivolous” medical malpractice case in Florida is almost laughable. Given the complexities of the cases, the costs involved, limited statute of limitations, vast uninsured providers, and the environment surrounding malpractice litigation, it would be hard to conceive that many attorneys would posit “frivolous” cases of this genre when they are operating on their own dime (which is required under a contingency fee agreement). In fact, there are very few malpractice cases being filed in Florida at all.
This leaves most Floridians without much leverage. The civil justice system was the one check that provided a disincentive to make medical mistakes. Florida’s Board of Medicine does little to deter medical mistakes. Now that there are fewer and fewer cases, it is not surprising that there are more and more medical errors. The lack of civil justice remedies, combined with managed care precipitated by profit motives, discourages quality care and creates a “McMedicine” environment.
All of this results in a system that is broken. The patients get poor care. The victims of serious medical mistakes have limited remedies, and most small-to-mid sized medical malpractice cases leave the patient without any practical remedy.
If a Boeing 767 filled with passengers crashed into a mountain every day of the year, would there be an immediate call for change? That scenario would “only” result in 136,000 fatalities. Here we are talking about two or three of these jets crashing each day. Would the aviation industry – or the American public – stand for that?
This is a call to action. Everyone is at risk. If medical mistakes are the third leading cause of death in the country, why haven’t we approached this as we would finding a cure for cancer or even reducing distracted driving – with public service messages, federal grants, legislative changes and funding from corporations to find ways to reduce errors and injuries? Why has the civil justice system been turned into a game with the scales tilted in favor of health providers and insurers? If anyone guesses it’s because of money, lobbying and influence…they win the prize.
It’s time to tilt the scales back to the reasonable center. Take justice back from the fringe, and encourage reasonable measures in our Legislature that would include requiring mandatory medical malpractice insurance. After all, if our cabs have to carry insurance, shouldn’t our neurosurgeons?
By JOHN ELLIOTT LEIGHTON
Leighton Law, P.A.
1401 Brickell Ave., Suite 900
Miami, FL 33131
121 South Orange Ave., Suite 1150
Orlando, FL 32801
South Florida Legal Guide 2014 Edition