In a recent article by John James of Patient Safety America, the author discloses that the evidence based estimate of hospital preventable adverse events (PAEs) affecting patients and leading to death is now more than 400,000 per year. In comparison, 1984 data examined by the Institute of Medicine lead to an estimate that 98,000 Americans die each year from medical errors. Whether the number is 98,000 or 400,000, there is little doubt that there is a problem with the administration of health care in our country.
Against this backdrop, the legal system has provided patients and their families recourse through medical malpractice actions – lawsuits that allege and must prove that the physicians or other medical providers breached the standard of care in providing health care to the affected patient. The PAEs leading to medical malpractice can be errors of commission, errors of omission, errors of communication, errors of context, or diagnostic errors.
In Louisiana, prior to bringing an action alleging medical malpractice in Civil District Court, the law requires that the medical provider’s actions be examined by a medical review panel. Only after the panel, comprised primarily of local physicians with expertise similar to the accused, confirms a breach of the standard of care can a patient take the next step. This next step can be recovery if the panel agrees with the patient, or a lawsuit against the medical provider if the panel dismisses the action. In addition to this hurdle, the patient and his family will generally be limited in their recovery to $500,000–the Louisiana medical malpractice cap. Pursuing a medical malpractice action in a state such as Louisiana is a long, difficult, and expensive process. In fact, a study published in 2012 by the New England Journal of Medicine showed that only 1 in 5 malpractice suits lead to a settlement or judgment in favor of the plaintiff.
This is not to say that doctors are insensitive to the fact that mistakes are made that cause patients serious harm. In another article published in October of 2013 by the New England Journal of Medicine the authors, who are medical professionals, outline the ethical duty to communicate openly with patients who have been harmed by medical errors. The authors also encourage health care workers to engage medical professionals when they understand them to be making an error, and to cultivate a culture of “explore, don’t ignore.” Nevertheless, the article tip-toes around the realities of professional solidarity, institutional inertia, and the culture of infallibility that surrounds established and senior doctors.