Wednesday, July 22, 2015

The Lasting Financial Impact of Patient Harm

"For Tennille Flowers, walking into bankruptcy court was one of the scariest moments of her life.
Flowers, a 36-year-old stay-at-home mom of two living in Michigan, filed for Chapter 7 bankruptcy in 2008 to alleviate about $20,000 worth of debt.  Her debt, not counting the $12,000 of federal student loans that wouldn't be eliminated by the proceedings, included about $15,000 of medical debt from an emergency appendectomy and about $6,000 of credit card debt she'd accumulated after going through a major car accident that left her without a way to get to work or pay her bills."

 "Now imagine for a moment that you are Tenille and during your appendectomy your surgeon made a critical mistake, not an intentional error, but a mistake. However due to fear of liability your surgeon fails to disclose the mistake. You are now seriously injured, saddled with a medical bill, and will need to pay out-of-pocket for long-term care. Even if you do have insurance, most insurance plans will not cover 100% of post operative care. Many of the best health insurance plans only cover between 60-180 days of post-operative care. In these instances that is defined as visits by visiting nurses, physical therapists and occupational therapists. What is not covered are: any necessary home modifications, any form of transportation if you need to go into the doctor's for visits, or respite care for your caregiver. After you have exhausted your 60-180 insurance limit you pay for almost everything out of pocket that is not covered by Medicaid or Medicare. While you are struggling to pay for medical expenses you still have to pay your mortgage, utility bills, home maintenance, credit card bills, car payment, taxes and any other bills that existed before your surgery. And while filing bankruptcy will relieve the burden of some of the debt, you will still have your mortgage (in some instances), utility bills, home maintenance, vehicle maintenance, taxes and your on-going medical expenses. Now depending on your circumstances you may be able to find a lawyer who is willing to listen to your story, investigate it, and pursue a medical malpractice case. However, if you are like millions of stay at home moms, the unemployed or under-employed or the elderly, a lawyer will not take your case even if you can prove than the harm has occurred.

According to an article by the Cancer Safety Council:

“Deadly medical errors occur at a shockingly higher frequency then most people realize, according to the article ‘Medical errors in America Kill more people then AIDS or drug overdoses. Here’s why’ by Sarah Kliff. The occurrence is so high that depending on which estimate is used, preventable medical errors are either the 3rd or 9th leading cause of death in the United States. This means that medical errors kill more people ‘than breast cancer, AIDS, plane crashes, or drug overdoses.’
These numbers are so outrageously high that it is hard for us to really put things in perspective, but imagine that those killed from preventable medical errors are ‘the equivalent of nearly 10 jumbo jets crashing every week.’ Think how crazy news agencies and the general public go when just one plane crashes, let alone ten! Yet the silence on this topic is deafening. If the general public were truly aware of the current medical error statistics they would be infuriated and demanding policy change. But most of us are unaware of the truth, as a previous study revealed that ‘both doctors and the general public, when asked to estimate the number of deaths related to medical errors, ballpark the figure around 5,000.’  However this number is extremely off and in actuality a 2013 study “published in the Journal of Patient Safety, estimated that medical errors contribute to the deaths of between 210,000 and 440,000 patients.”

Now imagine that only very small percentage of those harmed by patient error have access to any form of legal redress or anyone to advocate on their behalf.  This is a misperception that victims of patient harm want to “get rich” from their suffering, the majority just want to harm their harm acknowledged, receive follow-up medical care, and not be bankrupted in the process. 

I am a family caregiver and patient advocate who is reaching out to law firms, paralegals and investigators who might be interested in either working with or becoming a referral source for a non-profit National Patient Harm Legal Advocacy Group.

This idea stemmed from the Propublica article which addressed the absence of access to the legal system for low and moderate income victims of patient harm.

To read the article that sparked that conversation visit:

As the article points out:  “It’s estimated that hundreds of thousands of patients a year suffer some type of preventable injury or die while undergoing medical care. For many of these patients or surviving family, a lawsuit is the only hope to recover losses, learn the truth about what happened and ensure the problem is corrected.

But lawyers may have to invest $50,000 or more to pursue a case, and they usually only get paid if they win or settle. The payout is determined largely by economic damages – lost earnings, medical bills and future costs caused by the injury.  Those who don’t earn big paychecks – including children, the elderly and stay-at-home-moms – are the least likely to find an attorney, studies show.

A 2013 Emory University School of Law study found that 95 percent of patients who seek an attorney for harm suffered during medical treatment will be shut out of the legal system, primarily for economic reasons. Most attorneys would not accept a case – even one they might win – if the damages likely were less than $250,000.

For many cases, ‘the juice isn’t worth the squeeze,’ said Stephen Daniels, a research professor at the American Bar Foundation, a legal research institute.

‘The elderly are probably affected the most’, Daniels said, ‘even when they’ve suffered an obvious medical error that led to permanent disability or death. Elderly patients are often retired, so their income is low. Plus, they usually have no dependents and Medicare picks up their medical bills.
By comparison, a 40-year-old who suffered the same type of harm but was a breadwinner for a family with three children, would be a much more attractive case’, Daniels said.

‘Lawyers are the gatekeepers to the law,’ Daniels said. ‘You can have all the rights in the world, but if no one will take your case, then those rights mean absolutely nothing.’”

What if there was a non-profit organization, comprised of a few lawyers, nurses, paralegals, patient advocates, investigators and paid interns, which specialized in performing the steps in the pre-trial process and offered those services to the elderly and families with an annual income of less than $50,000 a year either pro bono or on a sliding scale based on ability to pay?

A non-profit National Patient Harm Legal Advocacy Group would offer the following services to clients and malpractice plaintiff attorneys pro bono:

1. client intake interviews - the first avenue of complaint for victims

2. investigators to look into claimant allegations

3. a team of physicians to evaluate the evidence provided by the investigators

4 a legal team of young or retired lawyers who would determine the merits of the case and advise claimants if they should drop their claim; consider using a negotiator to work towards an out of court settlement; or consider taking the case to trial. Members of this team would act as either liaisons with outside trial attorneys; be able to second chair; or if no other firm offers to accept the case, handle the trial.

5. A team of experienced legal negotiators.

6. And of course administrative staff.

This is a model for a tiered process in which all claimants would at least have their complaint heard and investigated. Many claimants would likely be willing to work with a negotiator and arrive at an out of court settlement. The majority of patient harm victims are simply seeking acknowledgement of the harm, an apology, and to have steps taken to treat the harm that was inflicted. A small percentage of the claims would actually move to the litigation stage.

Here is an example of how this process would work.

A client calls and says that they or their loved on is the victim of patient harm. The person answering the phones ( a volunteer, intern or other staff member) listens to their story and then asks them a set of scripted questions. The case is assigned to a patient advocate who will be a liaison with the person for most of their relationship with the group. The advocate reviews the case and unless it seems, forgive me for saying this "completely fraudulent", assigns the case to an investigator. The investigators turn their findings back over to the advocate. If the investigators turn up absolutely nothing to support the claim, the advocate explains that to the client. If the investigators turn up a reasonable suspicion of negligence, the case is turned over to the medical review panel which submits their opinions. At this point if the case has any merit, it is turned over to the legal review team to research the laws, statutes and jurisdictional issues. The legal team may then suggest that the case be referred to the in-house arbitrators to negotiate a settlement or decide that the case warrants a trial. The patient advocate works with the client through this whole process.

If this idea interests you can contact me via:

In the meanwhile if you are a patient who suspects that you have been the victim of patient harm  Helen Haskell, founder of Mothers Against Medical Error,  To provide some guidance on what you should do

1. Get a copy of medical records. Every patient has a right to his or her medical records under federal law. These records can provide important information about what happened – and what might have gone wrong.

What to do: As soon as possible after the incident, contact your doctor’s office or go to the hospital’s medical records department and ask for a complete copy, including doctor and nursing notes, lab results and copies of diagnostic images. (Warning: There may be significant charges for copying, and records can sometimes be altered.)

2. Make sure the incident is reported internally. Accredited hospitals are required to conduct internal investigations of serious medical incidents. And they’re supposed to have procedures in place to deal with incidents that lead to patient harm or could lead to patient harm.
What to do: Ask to be part of the investigation, or to at least have your version of events on record as part of the analysis.

3. If the patient has died, order a forensic autopsy, which includes toxicology tests. Autopsies — though not always 100 percent accurate — are the most reliable means of finding out what happened in an unexpected death. Hospitals do not routinely conduct autopsies, but the family has the right to get one.

What to do: In some situations, the local coroner or medical examiner is supposed to be called if a patient dies in a medical facility. If the authorities decline to take the case, the family may have to pay for a forensic autopsy. In that case, ask the coroner or medical examiner’s office for a referral to an independent pathologist.

4. Consider calling an attorney. Be aware that the standards for proving medical malpractice are much higher than most patients expect. Attorneys take few cases because they’re expensive to pursue and difficult to win. Even if an attorney does not take your case, however, he or she may help you deal with the hospital or other providers.

What to do: Ask friends or lawyers you know for the name of an experienced malpractice attorney. Or find one online.

5. Meet with the doctor and hospital officials. Ask them how they will prevent future harm to other patients. If the patient has suffered damages or died, you can also negotiate directly with the providers to waive medical bills or agree on an amount for compensation. You may wish to bring an attorney to help ensure that any agreement you make is in your best interest.
What to do: The Assertive Patient has some tips.

6. Report the incident to regulators, who can investigate. While regulatory action is often much milder than patients assume is warranted, it creates a paper trail. Providers may be cited or fined and required to create a program for improvement.

What to do: It’s necessary to report to the correct agency:

For more tips visit:

Also, if you are anticipating a future surgical procedure I recommend that you utilize the Surgeon Scorecard to check your surgeons patient safety rating. 

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