Malpractice: Why Patients and Families Sue Doctors and Hospitals

Malpractice: Why Patients and Families Sue Doctors and Hospitals

“Experience is what you get when you didn’t get what you wanted.” –Randy Pausch

As one who has experienced both sides of the medical equation as both a patient and a hospital employee, I can unequivocally state that when a patient dies, we are saddened, but we are not disabled. Death is part of the daily fabric of hospital life. People die every day, and we are in the business of either helping people get better or helping them die. We could not function if we allowed every death to affect us the in same way that it affects the family members of the deceased, and we have to be careful that we do not lose ourselves in the process of helping others. Fast forward twenty years later, and it is my loved one who has died in one of the top five hospitals in the country. Not only do I have to accept the fact that my loved one has died, but that his death could have been prevented—at least for a limited time in the foreseeable future. He did not die from an unexpected, catastrophic medical event. He died from a preventable error in communication.

When an unanticipated medical event occurs in the hospital, and the patient dies, the family is in a state of shock and sorrow. For many families, when they attempt to get answers about the death which may have occurred under questionable circumstances, they are either shut out, given limited access to information about their loved one’s care, or otherwise censored in their attempts to find out what happened. Instead of providing an explanation of the situation in its entirety, hospital and health care professionals close the doors to communication in an effort to protect themselves from legal action. As a result, the family’s pain and sorrow over the unexpected death of their loved one escalates into active rage, and it is here, in this phase of  disclosure, where medical professionals and hospitals make their first mistake. What they fail to realize is this—what the family really wants are the details surrounding their loved ones death and accountability for the error. They want to hear the truth no matter how bad it is, and they want to know that those taking care of their loved one are sorry that their efforts resulted in patient harm.  Furthermore, families want to be assured that the conditions that allowed the error to occur will be corrected so that it will not be repeated on other patients and their families.

When hospital attorneys advise administrators to shut the family out before they have the answers that they need to heal and move forward, then they may as well take the family by the hand and walk them over to a malpractice attorney’s office to deliver their new clients. If families are denied the explanations that they need in order to make sense of a loved one’s death and why it occurred, then their rage will direct them to get the information any way they can, and they will use every resource available to them.  Active rage does not want accountability; it wants revenge. Families driven by active rage pursue legal action as a last resort, and because they believe it will bring them the answers they are seeking, but in the end, their loved one will still be deceased, and families are left with the sad realization that a monetary settlement will not end their grief. Even when a case is so egregious that the hospital’s risk management team knows with  reasonable certainty that the family will file a lawsuit, it is still better to be proactive and attend to the family’s need to know than to actively try to keep information from them. Attorneys for the hospital may question the wisdom of providing the family with the ammunition that they need to file a legal claim, but a good malpractice lawyer with adequate medical counsel will be able to identify where the failure to meet the standard of care occurred without the hospital’s disclosure.

Will it result in more serious consequences and sanctions for health care professionals to acknowledge that they are human and subject to error? Is it going to turn a jury against the defendant or the hospital if the hospital has tried to make amends by instituting safeguards against the same errors happening again?  Most jurors have been a patient in a hospital, or they have had a family member who has been a patient in a hospital. Jurors want to see health care professionals who are sorry about the error that led to patient harm, and a hospital that is interested in improving patient care, not one who is behaving surreptitiously in order to protect its assets against a legitimate claim.

 Acknowledge the pain that the error has caused the patient and family, offer a sincere apology, and if the offer is genuine, then hospitals and health care professionals will be a long way towards their goal of either no lawsuit at all, or one that can be settled out of court. Restitution in the form of policies or plans that will prevent the same errors from happening again will be enough for some families, but for the most serious cases, hospitals and malpractice insurers may need to make a settlement offer. Medical professionals should be accountable to themselves and to those that they have unintentionally injured—not just to avoid a lawsuit, but because it is the right thing to do. Extending empathy for each other as human beings doesn’t cost anything, except maybe a little more kindness and compassion, and we could all use a little more of that.

Originally posted 2016-04-24 01:33:11. Republished by Blog Post Promoter

5 Responses to Malpractice: Why Patients and Families Sue Doctors and Hospitals

  1. Disclosing errors, even small ones, hurts. That said, we must do it anyways.

    This past quarter I had to stop a resident’s error in sending a patient home on a contraindicated medication, and it was the family asking the question that actually alerted me to the problem. It was a case of rushing to be efficient and dealing with a balky EMR system (which we are fortunately replacing), and just not being careful or thoughtful enough, which I suspect is behind a lot of our errors. Sometimes we don’t want to listen to patients whose medical needs are different from the usual course – I still occasionally see and hear colleagues deny side effects and label people psychosomatic if the first round of tests they order comes back negative. Medicine is hard if you are not content to be an “eighty-percenter” at it, and the pressure to be efficient and maybe the wish that it was easier, more cookie-cutter in nature, makes some of us settle for that.

    Dr. Haller, despite that, I have to tell you I have not really taken the “third leading cause of death” statement at face value, but what is your take on it?

    • I think errors happen more often than most patients realize, and yes, the EMR is woefully inadequate. If problems with the EMR were addressed, it would make it far less likely for a medical error to occur. I do not have access to the data concerning communication and medical error. Although I have worked in a hospital for 13 years, I am not a physician. However, this is what I know for sure. We are all human and we all make mistakes. Not one of us can say that human error does not apply to us. Unfortunately, medicine still ascribes to perfectionism instead of making it the exception to the rule.

  2. In big hospitals the individual doctors often have a limited role in hospital administration. Hospital policy may dictate how doctors interact with families in the event of hospital error (real or perceived). These policies are decided by people who are not doctors. They are presidents and CEOs and are paid hundreds of thousands of dollars a year to “manage” hospitals and that includes potential law suits and potential bad publicity. In many ways they are no different than the CEOs and presidents of Fortune 500 companies. Even though the medical professional may want to apologize or provide more information to a grieving family, they may be prevented from doing so by the higher-ups.

  3. Yes, in a perfect world this would happen. But hospitals do not only serve the public interest–they also make money. A lot of money. If a hospital tells the truth about what happened AND apologizes, they might as well do it while handing you over millions of dollars. The hospital is going to do anything necessary to protect it’s assets, including lying, being evasive, and treating patients and families like they are worthless.

  4. You raise such an important point that I don’t think many medical professionals consider. When a loved one is lost or injured, money won’t bring them back or heal the hurting family. What people really want is the truth, and then a promise to do better.