Error and its more malignant cousin malpractice are quietly epidemic in the American medical industry. Read even a few of the chilling anecdotal reports that flood online forums and a picture of just how broken the system is quickly comes into focus. The academic literature corroborates this: patients are regularly misdiagnosed, abused, improperly medicated and subjected to treatment that results in lifelong impairment or death.
I was only peripherally aware of the medical error crisis until my mother was misdiagnosed and endured a range of insults due to lapses in care at a major Chicago research hospital over three months spanning 2015–16. The gross negligence of a number of her doctors resulted in her death in January 2016 and set my family and I on a harrowing odyssey. We discovered legal and regulatory systems that ignore the reality of medical error, negligence and malpractice and are intent on ensuring that perpetrators are protected from accountability to their patients.
This out of sight, out of mind mentality is fortified by the scientific ignorance of a population that would prefer to put near religious faith in the curative powers of medicine and its practitioners rather than take a hard look at the factors that have privileged financial and professional interests over those of patients.
Negligence and malpractice are relatively nebulous categories. Estimates of harm and death due to medical error vary wildly: in part due to a failure to catalogue many such events at the time. Perhaps 90% of adverse events are missed, according to a 2011 study, which found that medical errors occurred in at least a third of hospital admissions. Death certificates rely on the International Classification of Disease (ICD) codes, which do not account for human error when they assign causes of mortality. Thus, the data necessary to collate national deaths due to error does not exist in a usable form—it must be extrapolated. Furthermore, the consequences of many errors are lasting. Deleterious or deadly events may manifest long after the errors were committed and thus their connection with those errors may escape notice. All of this makes the task of determining an accurate total nearly impossible.
Nonetheless, the assessments that have been attempted on the basis of this patchy data are damning. The US was found to have the highest rates of preventable deaths from medical error in a recent analysis of developed countries. The Institute of Medicine’s 1999 report found that between 44,000 and 98,000 people die each year due to medical error. That was probably either an underestimate—or things have got substantially worse since then. One 2013 study puts the total number of deaths due to medical error at some 440,000 a year, making it the third most common cause of death in the US. This was corroborated by a 2016 analysis in the British Medical Journal. Anywhere from 60–100% of adverse events are believed to be preventable. Up to 4 million preventable adverse events, including non-fatal events, happen per year, according to the 2013 study.
This is not just an American problem. A 2019 World Health Organization report found that misdiagnosis contributed to up to 10% of patient deaths and that up to 40% of outpatients are harmed by medical error globally.
This 2007 piece in the New England Journal of Medicine highlights the experiences of patients and families affected. It points to a disturbing trend. Patients often found that, after calling attention to an error, they were treated worse by medical staff. My family and I found this to be true almost across the board. Numerous staff members acted in a retributive manner, derisively dismissing our concerns, avoiding us and personally insulting us behind closed doors, as one appalled nurse informed me.
Among the more common errors are misdiagnosis or delayed diagnosis and improper administration of medication, both of which led to my mother’s death. (Diagnostic error was the reason for over 34% of successful malpractice suits in 2018.)
Nosocomial, or hospital acquired, infections are common too. Their prevalence has in part been attributed to poor compliance with sanitation practices. One such infection contributed to my mother’s decline. When the infectious disease team came up empty handed, after repeated tests for possible pathogens, my father, who has a degree in microbiology, demanded that my mother be tested for Candida. Though his concerns were initially dismissed, they ultimately relented. She had a raging secondary Candida infection. It has since emerged that drug-resistant Candida is a growing problem. My mother was also exposed to Clostridium difficile, as nurses on her case were also responsible for another patient who had the infection. Isolation procedures were negligible and we demanded that those nurses be taken off her case. Luckily, she never contracted Clostridium—a small mercy.
The reasons for this epidemic of errors are multifarious. For starters: the growing complexity of modern medicine and resulting difficulties in coordinating care between multiple doctors increase the likelihood of mistakes and oversights. Hospitals are chronically understaffed, which leads to overburdened doctors and nurses. And—for all the claims about frivolous lawsuits—doctors are allowed to act with near total impunity, aided and abetted by their well-funded insurers and a code of professional silence that rivals that of the police. Surveys show that doctors are alarmingly disinclined to report both their own errors and those of colleagues. Because these errors are not documented, the medical community as a whole cannot learn from them and they will be repeated.
The conventional narrative maintains that most litigants who go after doctors are money-hungry opportunists. This, however, is a falsehood perpetuated by a multi-billion dollar industry that has shown a breathtaking propensity for protecting its financial concerns at the expense of patients. It is enormously difficult for even patients and families with legitimate complaints to obtain representation, let alone press a successful legal or regulatory case against a physician or institution that has harmed them.
Though even competent doctors understandably worry about liability—a third of all doctors will face a lawsuit at some point in their careers—the overwhelming majority of legitimate cases escape notice, and few will end up being heard in court. A 2013 study found that a mere 1% of lawsuits resulted in claims. A study the following year found that only 2% of injured patients file claims. According to the 2014 study, 95% of victims find it extremely difficult or impossible to find legal representation. This is due to a range of factors. Most prominent among them is the fact that lawyers rarely take on anything that won’t result in substantial remuneration. Widespread damage caps implemented as a result of tort reform efforts, and a move toward arbitration, which typically results in smaller settlements, have made these cases far less appealing to lawyers. A majority of states now have some sort of damage cap in place and a majority of cases settle out of court. Some 61% of cases were resolved out of court according to the 2006 data.
A study of 2015 data found that 68% of suits were dropped, dismissed or withdrawn. Only around 7% of them went to trial and, of those, 88% were decided in favor of the doctor. A 2009 study found that doctors even won 50% of cases in which there was strong evidence of malpractice. According to malpractice insurance industry data from 2004, fewer than 1% of verdicts were in favor of the plaintiff. The majority of states have instituted laws that make acknowledgment of error to patients in a clinical context inadmissible in court proceedings, creating additional barriers to meeting the already high standard of proof.
Malpractice torts, including non-medical ones, comprised only 4% of state caseloads in 2017. Payouts dropped by more than 50% between 1992 and 2014. In my home state of Illinois, malpractice filings have dropped some 32% since 2003. This might be considered a win for doctors and over-burdened civil courts, but it is a major loss for patients and families seeking justice for damage that was likely avoidable. Whether attributable to inefficient systems or individual incompetence, the consequences of medical error are as deserving of examination and compensation as any other tort claim. It is also a clear indication that the medical industry’s characterization of malpractice suits as largely frivolous and an undue burden on both doctors and the legal system are grossly untrue. Disingenuous tort reform legislation has made it close to impossible for those affected by medical error to seek compensation.
There’s a further wrinkle here: because compensation claims often correlate closely to earning potential, successful death and injury claims for older people are far less remunerative. The diminished earning potential of a retiree will decrease the likelihood of reasonable compensation—and thus, the likelihood of retaining a lawyer in the first place. This will become an increasingly acute problem as more baby boomers enter the medical system due to infirmity and illness.
Further, regulatory mechanisms intended to check the excesses of the medical industry are largely ineffective, in part due to the fact that they are somewhat beholden to industry interests. A 2011 report found that 55% of physicians who were probably guilty of negligence had no action taken against them by state licensing boards. The proceedings of the investigations that do occur are often totally opaque to the public, including to the victims making the reports. The Illinois Department of Financial and Professional Regulation, which is investigating the doctors responsible for the errors in my mother’s care, has informed us that the investigation could take several years and that we will not be informed of its findings. This is far from the exception.
So, if medical error and malpractice result in disproportionate levels of injury and death, and if affected patients and their families can have little to no recourse and seldom receive compensation, what is to be done?
A number of factors can be adjusted within the medical system itself. Many are realistic and medical professionals appear amenable to some. Disclosure of errors is paramount. Not only does it allow patients who survive such events to make informed decisions about their healthcare going forward, it appears to reduce litigation by allowing an honest discussion of what occurred and how its consequences might be remedied in real time. Coordination of care through more sophisticated electronic record-keeping will probably also reduce patient harm. None of this is easy and it will require rigorous renegotiation of doctor–patient relationships, doctor–doctor communication, and the use of technology.
The legal and regulatory systems will probably be more intransigent. Because the relatively few successful malpractice claims are usually resolved in arbitration, enormous amounts of data are often lost. These proceedings are inevitably sealed and thus become inaccessible to analysis. And damage caps create a feedback loop wherein the reduction in compensation disincentivizes lawyers to take these cases in the first place, and so even fewer victims and their families are able to pursue their cases and fewer public records of the specifics of both valid and invalid cases are available. The cryptic nature of regulatory agencies presents a similar problem. It is difficult to redesign a system when so much of the information about the current system is unavailable. Additionally, many doctors will probably resist any legal or regulatory changes due to the likelihood of increased malpractice insurance premiums.
Still, removing or at least raising caps on compensation would go a long way toward allowing the entry of more valid cases into the legal system for adjudication. And full transparency of regulatory proceedings would shed invaluable light on how error and negligence are assessed and allow for greater accountability.
Further, centralized data reporting that accepts reports by both medical professionals and the public might have a substantial effect, if other high-risk industries, such as aviation and nuclear power, are any indication. The numbers of accidents in these industries have been drastically reduced, due to the fact that even slight errors are regularly logged and procedures adjusted accordingly through the use of detailed checklists. The National Practitioner Database, which catalogues sanctioned physicians, only captures a small amount of data given that sanctions are relatively rare.
In the meantime, patients and their families must be prepared to deal with a system whose inefficiencies pose grave threats to their well-being and whose bad actors are more often than not allowed to persist. And when these factors result in actual harm, they must be prepared for the reality that acknowledgment is unlikely, nevermind compensation. Barring a #MeToo style movement, this issue will likely remain relegated to academic journals and risk management departments—and online forums, such as the one run by the Patient Safety Action Network, of which I am a member. This needs to change. Patients are entitled to both thorough and transparent treatment and to other recourses when that isn’t provided. It is a matter of human rights. And like most rights, they need to be demanded.
Photo by National Cancer Institute