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Unreported Medical Malpractice

Texas Injury Lawyers Representing Clients throughout Texas and Nationwide

These shocking statistics are based on reported medical malpractice, but the fact is that many medical malpractice incidents go unreported. “Reporting Medical Errors to Improve Patient Safety“, an article based on a survey done by Dr. Lauris C. Kaldjian, MD, PhD and five other professionals with medical degrees disclosed these facts about the failure of doctors and nurses to report medical mistakes:

“Responses were received from 338 participants (response rate, 74.0%). Most respondents agreed that reporting errors improves the quality of care for future patients (84.3%) and would likely report a hypothetical error resulting in minor (73%) or major (92%) harm to a patient. However, only 17.8% of respondents had reported an actual minor error (resulting in prolonged treatment or discomfort), and only 3.8% had reported an actual major error (resulting in disability or death). Moreover, 16.9% acknowledged not reporting an actual minor error, and 3.8% acknowledged not reporting an actual major error. Only 54.8% of respondents knew how to report errors, and only 39.5% knew what kind of errors to report.”

This study indicates:
  • Health care practitioners almost never report medical mistakes.
  • The more serious the injury from a medical mistake, the less likely it is to be reported by a doctor or nurse.
  • Almost all doctors and nurses agreed that reporting medical mistakes improves the quality of care for future patients.
  • Almost half of practitioners surveyed did not know how or which medical mistakes to report.

Fixing the Problem of Medical Mistakes

Partly in response to these studies and others, the national accrediting organization for hospitals (the Joint Commission on Accreditation of Healthcare Organizations, commonly known as JCAHO) created a series of specific National Patient Safety Goal requirements on which it required all hospitals to keep records and report compliance statistics annually. Of the 22 quality-related measures tracked by these Joint Commission standards, a 90% compliance rating was achieved for only 4 (and, remember that 90% compliance means the goal is not met 1 out of 10 times, meaning the mistake rate than be as high as 10%). In general, these Joint Commission Patient Safety Goals are pretty simple, like:
  • Use at least two ways to identify patients.
  • Make sure that the correct patient gets the correct blood when they get a blood transfusion.
  • Get important test results to the right staff person on time.
  • Make sure the correct surgery is done on the correct patient and at the correct place on the patient’s body.
  • Mark the correct place on the patient’s body where the surgery is to be done.
  • Pause before the surgery to make sure that a mistake is not being made.
  • Find out what medicines each patient is taking. Make sure that is OK for the patient to take any new medicines with their current medicines.
  • Give a list of the patient’s medicines to their next caregiver. Give the list to the patient’s regular doctor before the patient goes home.
  • Use the hand cleaning guidelines from the CDC or the World Health Organization. Set goals for improving hand cleaning. Use the goals to improve hand cleaning.
  • Use proven guidelines to prevent infections that are difficult to treat.
  • Use proven guidelines to prevent infection of the blood from central lines.
  • Use proven guidelines to prevent infection after surgery.

Failure to adhere to such guidelines and the resulting epidemic of medical mistakes falls very heavily on the elderly. This has resulted in Medicare adopting a policy of not paying for the treatment of certain preventable conditions caused by medical mistakes in hospitals. In other words, Medicare has decided these medical mistakes are so inexcusable and costly that the government will not reimburse for the treatment of them in an effort to force hospitals to adopt policies and procedures like those proposed by JCAHO to prevent them.

Medicare’s current nonpayment for hospital acquired conditions list includes:
  • Objects accidentally left in after surgery
  • Air embolisms
  • Blood incompatibility
  • Catheter associated urinary tract infections
  • Pressure ulcers (decubitus ulcers or bed sores)
  • Vascular catheter associated infections
  • Surgical site infections–Mediastinitis (infection in the chest) after coronary artery bypass graft surgery
  • Surgical site infections following certain elective procedures, including certain orthopedic surgeries and bariatric surgery for obesity
  • Certain types of hospital falls and traumas
  • Certain manifestations of poor control of blood sugar levels
Still the medical mistakes and their costly toll on Americans persist.

The Rights of Medical Malpractice Victims

In a perfect world, medical mistakes would be promptly reported to patients by doctors, nurses, and hospital administrators and the results of the mistakes would be taken care of by those who made the mistakes so that injured patients or the families of deceased patients were fully compensated for their injuries, losses and damages. This does not happen in the real world of today’s health care. In fact, it is much more likely that medical mistakes will be hidden from patients, as was discovered in the study discussed under the previous section on Unreported Medical Malpractice. This is why it is important to promptly consult a qualified medical malpractice lawyer when a serious injury or death to a patient is thought to be the result of a medical mistake. The medical malpractice lawyers at Bush Lewis are experienced at reviewing cases to determine if the disastrous medical outcome is actually the result a medical mistake.

Our experience at Bush Lewis has been that many people are reluctant to contact a lawyer about a possible medical mistake. Often families are busy dealing with the results and aftermath of a devastating outcome of poor medical care and just do not have time or often never even think about contacting a lawyer. Some people think it would be disloyal to their doctors and nurses to complain. Of course, some medical procedures involve risk and we are asked to fill out and sign consent forms warning us of possible complications or perils inherent with the procedure. Both our Beaumont medical malpractice lawyers and our Orange medical malpractice lawyers at Bush Lewis often encounter patients who wonder whether they have signed away their legal rights. The fact is that no waiver or consent form ever gives health care professionals the right to commit malpractice. Every doctor, nurse, dentist, and hospital is required to follow the standards of care that apply to their profession at the time and the place where they care for a patient and no consent form relieves them of the responsibility to be competent.

Almost never will a doctor or hospital resolve any medical malpractice claim without the involvement of a competent medical malpractice lawyer. Bush Lewis’ managing lawyer and lead Beaumont medical malpractice lawyer Ken Lewis says: “I have been a trial lawyer since 1977. I am sure that there must have been some fair settlements to patients who were the victims of medical mistakes who did not have lawyers. However, I am not aware of any of them. Even the clearest medical negligence cases are disputed and hard fought by health care providers.” Lead Orange medical malpractice lawyer Chris Smith affirms: “I have not been practicing as long as Ken Lewis, but I know of no medical malpractice cases that have settled without the patient having a lawyer.”

What Is Medical Malpractice?

Not all bad medical results are caused by medical mistakes and not all medical mistakes cause a bad medical outcome. Almost every state has special laws that apply to claims against doctors, hospitals and other heath care providers. Texas has a complicated special statute called the Medical Liability Act that defines the requirements of medical malpractice claims, which it calls health care liability claims. These include all claims against a physician or health care provider, including:
  • Medical doctors
  • Osteopathic doctors
  • Registered nurses
  • Dentists
  • Podiatrists
  • Pharmacists (but not pharmacies)
  • Chiropractors
  • Optometrists
  • Physician assistants
  • Nurse practitioners
  • Licensed professional counselors (but not psychologists, physical therapists, occupational therapists, HMOs, or blood banks)
  • Pathology laboratories
  • Drug and alcohol treatment centers
  • Health care institutions
  • Hospitals
  • Nursing homes
  • Hospices
  • Rehabilitation centers
  • Hospital systems
  • End-stage renal disease facilities
  • Home and community support services agencies
  • Emergency medical services providers
  • Ambulatory surgery centers
  • Health service districts
  • Assisted living facilities

It includes claims against employees, agents, owners, managers and members of any of these health care providers) for treatment, lack of treatment, or other claimed departure from accepted standards of medical or health care, or safety or professional or administrative services directly related to health care, that directly causes a person’s injury or death.

To be successful on a Texas health care liability claim, the complaining patient or patient’s family must show that:
  • The claim is actually one for health care liability against a health care provider;
  • The health care provider actually owed a duty to the patient;
  • The health care provider violated its duty by not meeting the required standard of care; and
  • The health care provider’s breach of the required standard of care actually caused the patient’s injury.

A health care provider would include any person or business that is within the groups previously listed but not all claims against them would necessarily be health care liability claims. For example, claims for failure of a nursing home to control pests, for a nursing home employee allowing a heavy bag to fall on a patient, for a hospital having a wet and slippery bathroom floor where a patient fell, or for a hospital negligently handling a corpse do not involve actual health care and are not considered health care liability claims because they do not involve violations of standards of health care. (However, other non-health care claims can be made for such non-medical mistakes.)

Only those health care providers actually involved in treating a patient owe the patient any duty to exercise reasonable care. In other words, there has to be an actual relationship between the patient and the provider for there to create any duty to the patient. For example, on call physicians who consult by telephone with an emergency room physician but do not evaluate, treat, or make a medical decision about the patient or consulting physicians who make a recommendation to the primary provider but do not do anything else have not established a physician-patient relationship and generally do not owe any continuing duty to the patient. When there is a duty, it is only to the patient and never to other family members or others.

The duty owed a patient is to act as a reasonably prudent health care provider in the same or similar circumstances would act. It is important to understand that the duty is not to be perfect, but to be reasonably prudent. If the health care provider is a specialist, the provider is held to the standard of a reasonably prudent specialist in the same or similar circumstances. In the past, these standards were sometimes allowed to be that of the locality where the health care was provided, but that geographic locality rule has long since been removed from the law because doctors, nurses and hospitals today all have easy access to the same health care information through textbooks, medical schools, continuing medical education, national organizations, the internet, and the telephone. No longer can a doctor say “Well, that’s not how we do it in Beaumont.” All health care in caring for a patient must meet accepted health care standards, which include standard diagnosis, treatment, surgery, anesthesia, post-operative care, nursing care, etc. Substandard care can include either doing what a reasonably prudent provider would not do or failing to do that which a reasonably prudent provider would have done in that particular situation. Proving medical malpractice requires expert testimony from a medical professional qualified in the same field as the medical provider about which the patient is complaining. The medical professional must explain exactly what the standard of care is for the particular situation and how that standard was violated in the case.

Proving violation of a standard of care is not enough in medial malpractice cases. Medical malpractice also requires showing that the patient suffered serious injury or death because of the violation. Without injury, no case exists–even if the medical care was horrible. The injury or death must be linked directly to the substandard medical treatment by an expert witness qualified to determine how the substandard care caused the bad medical outcome. In medical malpractice cases we must show that the treatment, lack of treatment, lack of diagnosis, or wrong diagnosis actually caused the injury–not that it might have caused the injury. In successful medical malpractice claims, injured patients are entitled to make claims for damages such as past and future medical costs including:
  • Medication
  • Rehabilitation
  • Therapy
  • Assisted living care counseling
  • Necessary aids and devices
  • Home and vehicle modifications to deal with disabilities
  • Non-economic damages such as—
    • Pain and suffering
    • Mental anguish
    • Scaring
    • Physical impairment
    • In death cases, grief and loss of the family relationship with the deceased patient

Medical Malpractice Cases Are Very Difficult

Not all law firms have the means, resources or high level skills necessary to handle medical malpractice cases. These cases are very technical because they involve health care, medical standards, and complex medical causes, requiring access to expert witnesses who can evaluate and testify to medical malpractice and the financial wherewithal and time commitment to see the cases through to a conclusion. This requires lawyers with the right commitment, experience and integrity.

The degree of difficulty in handling medical malpractice cases is evident in the statistics reported by the Bureau of Justice Statistics (BJS):

The majority of malpractice claims in a study of seven states (which included Texas) were closed without any payment of compensation to those claiming medical injury.

Among persons receiving compensation, insurance payouts were highest for claimants who suffered lifelong major or grave permanent injuries. Clearly, patients claiming injuries receive little or no payments for minor injuries.

The overall win rate for medical malpractice plaintiffs (27 percent) was about half of that found among plaintiffs in all tort trials (52 percent).

Another BJS report indicated that—
  • During 2005 an estimated 2,449 medical malpractice cases were disposed of by trial in state courts of general jurisdiction throughout the country, with 99% of those being jury trials.
  • Plaintiffs prevailed in less than 25% of medical malpractice trials.
  • Successful medical malpractice jury trials garnered relatively high median damage awards. The average awards in medical malpractice jury trials ($400,000) were 17 times greater than the overall median awards in tort jury trials in the 7 state area. These high award amounts may be partially explained by the fact that allegations of wrongful death were asserted in 40% of medical malpractice jury trials with plaintiff winners.

These results tell us that medical malpractice trials are generally lost because juries are reluctant to find that doctors and hospitals did anything wrong. And this study included states that do not have the difficult medical malpractice laws and damage caps that we now have in Texas.

The political response in Texas to the high rate of medical mistakes has been to try to lower the medical malpractice insurance premiums of doctors and hospitals caused by the combination of increasing medical mistakes and poor investment returns by liability insurance companies. The effort to lower malpractice insurance rates has been based on making it more difficult to be successful in legitimate medical malpractice cases and by limiting the recoveries in serious cases rather than addressing the actual cause of high rates, which are medical mistakes and poor regulation of the insurance industry. Some of the highlights of current medical malpractice law in Texas are:
  • Before a lawyer can take a health care provider’s deposition in a Texas malpractice case for a victim of a medical mistake, the lawyer must file expert reports showing violations of the appropriate standards that caused the bad medical outcome. These expert reports must be filed no later than 120 days after filing a lawsuit.
  • Claims against emergency room personnel must show not only that the provider failed to do what a prudent emergency room provider would have done in the situation but that the provider was grossly negligent (meaning that the provider knew it was the wrong thing to do or not do and would probably cause serious injury or death but did it any way, like a criminal). No other state allows emergency room medicine to be practiced to such a low standard without legal responsibility.
  • Non-economic damages in Texas medical malpractice cases are limited to a maximum of $250,000. This means that in many horrible injury and death cases of the elderly and children who have no earning capacity the most that could ever be recovered would be $250,000. Those kind of non-economic damages are never awarded in minor injury cases, so this is essentially a cap on the most serious medical negligence cases and an intentional devaluing of elderly and children patients.
The point is that Texas medical malpractice cases are very complex and difficult. These cases are very expensive, with $100,000 in expenses not being uncommon.

Types of Medical Malpractice

Doctor or Physician Liability for

  • Failure to properly diagnose
  • Failing to properly monitor a patient’s known condition
  • Choosing inappropriate care, procedure, surgery or medication
  • Leaving a foreign body or surgical implement in a patient’s body
  • Performing unnecessary or wrong surgery
  • Operating on the wrong body part
  • Abandoning a patient
  • Disclosing confidential information
  • Anesthesia errors
  • Not obtaining proper informed consent for treatment or procedure
  • Improperly executing a surgery, procedure or plan of care
  • Improperly selecting or supervising specific details of a surgical staff or team

Nurse Liability for

  • Failing to or inadequately observing, assessing, intervening, evaluating, rehabilitating, caring for, counseling, or providing health education to patients who are ill, injured or infirm
  • Failing to or improperly administering medications or treatments ordered by a physician
  • Failing to or improperly administering, supervising, or evaluating nursing practices, policies, and procedures
  • Failing to or improperly developing a nursing care plan for a patient
  • Failing to provide appropriate nursing care
  • Failing to stabilize a patient’s condition
  • Failing to prevent further physical or mental harm to a patient
  • Failing to appropriately chart or document a patient’s condition
  • Failing to appropriately report patient changes
  • Failing to procure needed medical intervention for a patient

Hospital Liability for

  • Not providing patients with appropriate and usable medical equipment
  • Failing to use reasonable care in formulating policies and procedures
  • Negligently selecting and credentialing staff
  • Negligently supervising staff
  • Not keeping premises safe
  • Failure to adopt and enforce policies and procedures to prevent infections
  • Failure to appropriately enforce policies and procedures

Nursing Home Liability for

  • Patient neglect
  • Patient abuse
  • Patient exploitation
  • Inadequate supervision and nursing services
  • Inadequate selection and maintenance of medical staff
  • Failure to adequately protect patients

Legal Help from Texas Medical Malpractice Lawyers

Our board certified personal injury lawyers at Bush Lewis are devoted to handling medical malpractice cases throughout Southeast Texas. We bring decades of litigation experience along with our strong commitment to achieve the best results possible for medical malpractice victims and their families. When we take your medical malpractice case, we put our commitment, integrity and experience on the line for you.

If you suffer serious injury and suspect medical malpractice is the cause, contact our Beaumont medical malpractice attorneys today for a free initial consultation. Call Beaumont Medical Malpractice Lawyer, Ken Lewis at 409-835-3521. We proudly serve the areas of Beaumont, Orange, Jasper, Anahuac, and Port Arthur, Texas, as well as other areas of Texas. We also accept select medical malpractice cases in other states, where we work with lawyers licensed in those states.

Know This Before An Accident

No one plans to have an accident and no one expects to sustain a serious injury or lose a loved one to death from someone else's actions or mistake. It helps to at least have heard what experienced lawyers say you can do to ease the situation. At Bush Lewis, we think there are some helpful guidelines that we recommend to you. Our lawyers suggest: Learn more.