In 1991, the Institute of Medicine released a landmark report, which revealed that as many as 98,000 patients were dying every year owing to avoidable medical error. More recent research indicates that estimate was, if anything, a drastic understatement of the patient-safety epidemic in the US health care system.
In Malpractice, neurosurgeon and attorney Dr. Larry Schlachter makes a case that most patients enter the system without any idea of the risks they face, due to a medical culture that denies there is a patient safety problem. He argues that medical culture actively avoids transparency, perpetuates an atmosphere of blind deference to doctors, and protects dangerous doctors from any accountability.
Drawing on 23 years of experience, Dr. Schlachter provides unbelievable stories that illustrate the host of risks patients face whenever they seek diagnostic evaluation or go under the knife. This book provides an all-access pass to the inner sanctums of the health care citadel, exposing the cultural flaws that fuel doctor’s egos and outlining the steps every patent should take to protect himself or herself.
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About the Author
Larry Schlachter, DDS, MD, JD is a retired neurosurgeon and now a malpractice attorney. He lives with his family in Roswell, Georgia.
Read an Excerpt
The Reality of Patient Harm
In 1999, the prestigious Institute of Medicine (IOM) issued a landmark study, "To Err is Human," which concluded that 44,000 to 98,000 patients were dying every year because of avoidable medical error. It follows that many more didn't die, but were maimed or met the end of their productive lives by avoidable medical error.
"To Err is Human" made huge waves and effectively launched the patient safety movement in the United States. Part of it was a result of timing, due to a spate of high-profile deaths and serious injuries at the time. The fact that some of the victims were well-known journalists made it a sure bet that their unfortunate and premature demise would make headlines. The IOM analogy to a jumbo jet crashing each and every day of the year as an equivalent of the carnage from healthcare error put the issue in crystal clear perspective.
Yet there has been little progress in improving patient safety in the more than fifteen years since the IOM issued its findings. In fact, many subsequent studies indicate that the IOM report was, if anything, a drastic understatement of the situation.
In 2004, HealthGrades, a US company that provides information about physicians, hospitals, and health-care providers, issued a "Patient Safety in American Hospitals" study concluding that preventable deaths were almost double what IOM reported in 1999. The IOM study had extrapolated findings from three states; HealthGrades looked at Medicare data from all fifty states and Washington, DC, examining thirty-seven million patient records over the course of three years. It concluded that 195,000 people in the United States, or 390 jumbo jets full of people, died each year from potentially preventable medical error.
In 2009, Scientific American noted that "preventable medical mistakes and infections are responsible for about 200,000 deaths in the US each year, according to an investigation by the Hearst media corporation."
In 2010, the US Department of Health and Human Services (HHS) released a report asserting that 15,000 Medicare beneficiaries die each month from adverse events. Of these adverse events, 6,600 died from preventable medical error. That is more than 79,000 preventable deaths annually among only Medicare beneficiaries. Since Medicare beneficiaries make up about 14 percent of the population, that extrapolates out to a death toll from preventable error in the general population of more than 562,000 patients. While it is true that the mortality rates for the Medicare population were probably higher because of their age and general health conditions, it should also be noted that both the IOM report and the HHS report limited their study of medical error to just hospitals. They did not include outpatient surgical centers, clinical visits, or in-home care.
In 2011, Dr. David Classen and his colleagues reported in the journal Health Affairs that adverse events in hospitals may be ten times greater than previously measured.
In 2013, the Journal of Patient Safety reported that about 400,000 patients die, and four to eight million others are seriously injured, from preventable medical error every year.
Let's think about this for a minute. Just one major plane crash grips the world's attention for weeks, even months. A couple of major plane crashes within a short time frame could result in a dramatic drop in global air passenger traffic for a year or more. However, the total death toll would still be less than 1,000.
Now we learn that the equivalent of more than one jumbo jet's worth of patients die every day in our hospitals from preventable errors, and not only is it not newsworthy, many of us do not take minimal steps to keep ourselves in good health and out of the hospital where the bad stuff happens.
It is important to remember that the worst of these numbers only represent how many patients are killed by preventable medical error. For each one who dies, many more survive with life-changing circumstances, from impotence to paralysis to the persistent vegetative states so often at the center of national news stories on the ethics of "pulling the plug."
It's equally, if not more, important to remember that each of these numbers represents real people, such as Michael Skolnik. Unlike many of the stories you will read in this book, where the names and some identifiable information have been changed to protect patient privacy and abide by gag orders protecting doctors who agreed to malpractice settlements, this one uses the victim's real name. Michael's parents, Patty and David, refused a gag order that would have prevented them from publicly discussing what happened to their son.
Michael was a twenty-two-year-old young man with a passion for helping people and an interest in health care. He was an emergency medical technician (EMT) and was just starting nursing school. Twice in three months, Michael inexplicably passed out and lost consciousness. Each time, a computerized tomography scan — commonly called a CT scan — was taken. The second CT scan showed a very small colloid cyst.
The cyst was located near the top of his brain, adjacent to the third ventricle. (I am going to talk about ventricles later in this book, but for now let's just say there are four ventricles in the brain, and they are little cavities, tiny lakes if you will, containing and producing spinal fluid that drains its way into the spinal column.) The neurosurgeon's concern was if this small cyst plugged up the ventricle so that it could no longer drain properly, the ventricle would overfill, become enlarged, and put pressure on the rest of the brain. These cysts can be dangerous, but not all of them are. The imaging would tell the story.
The second CT scan, compared to the first one three months prior, indicated no enlargement of the ventricle. That meant nothing was plugged up. That was good. The day after the second CT scan, Michael submitted to magnetic resonance imaging, or an MRI, which confirmed the findings of the CT scan: a very small cyst, no obstruction of the ventricle, no increased pressure on the brain — all indicating no surgical intervention was necessary.
The neurosurgeon, however, insisted the situation was very serious and life-threatening. He said that to save Michael's life, he needed to implant a small drain tube in Michael's brain so that the excess spinal fluid could drain properly. This was explained to Michael, who signed the consent form to have the drain inserted. The neurosurgeon presented this procedure as being without risk, only with benefits. The consent was signed after Michael and his parents discussed it. Michael's parents were grateful because they felt the neurosurgeon was saving Michael's life.
During the procedure Michael received too much medication, and he stopped breathing. Technicians had to help him breathe while the meds wore off. One of the nurses informed Michael's father, David, of what happened. Later, when David asked the neurosurgeon if Michael had stopped breathing, the neurosurgeon snapped, "Who told you that?" That could have been a red flag for the Skolniks, but with everything else on their minds, they barely noticed.
After the tube insertion was completed, the neurosurgeon informed Michael and his parents that he must have the cyst removed in order to save his life. He said it would be performed with pinpoint accuracy. He would open the lobes of the brain, and the cyst would be right there.
At this point, Patty and David got a fax from their primary care physician, who was following the situation, that said, "Do nothing. Cyst is not causing any problems and will probably never grow or change." When they showed the fax to the neurosurgeon, his response was disdainful, as if to say, "This other doctor is a mere primary care physician, and you are just a mom, but I am the neurosurgeon. Who are you going to trust?"
The next evening, when Michael was under the influence of considerable pain medication (we never learned why), the neurosurgeon presented him with a consent form, without his parents — who should have been the decision-makers while he was incapacitated — present. To this day, they do not know what was said or even if there was a conversation beyond asking for Michael's signature. Recovering from one procedure and significantly medicated, Michael was in no condition to be presented with a legal document. The surgery was to take place the next day. When the parents asked about the consent form, the doctor said Michael signed it the evening before.
The operation they were told would take three hours took six and a half hours. When the neurosurgeon came out, he "pulled back his hat and said, 'I've had the worst year.'"
Confused, Patty and David asked, "How's Michael?"
The doctor told Patty and David he hadn't found the cyst, but had found a little bit of brain matter, and thought he might have punctured it when he went in with the drain. He acknowledged performing "heavy manipulation of the brain."
At this point, Patty and David were having trouble breathing, not to mention concentrating. They went in to the recovery room and looked at Michael and were totally unprepared for what they saw. He looked puffy, and his head was enlarged. The next day, when the bandages were removed from his head along with the ventricular drain that wasn't draining — and had never been needed, anyway — they discovered that the neurosurgeon had performed a craniotomy, removing a portion of Michael's skull for open brain surgery.
It seems this surgeon did not have the skill or training to do the endoscopic method, which is much less invasive, and he did not bother to discuss alternatives with Michael and his parents — alternatives that would have required a more experienced surgeon.
As a result of a wrong diagnosis and unnecessary surgery, Michael experienced almost every possible complication, none of which were discussed with him or his family: hydrocephalus (swelling of the brain), seizures, pulmonary embolism, intracerebral hemorrhage, brain abscesses, multiple reoperations, infections, sepsis, respiratory arrest, and thalamic pain syndrome.
Michael's complications left him partially paralyzed, partially blind, and psychotic. He was unable to feed himself, speak, or walk. He suffered for three more years before he gave up and died.
What had happened here? Michael and his parents were never provided with surgical and nonsurgical options. No one ever reviewed with them the risks associated with each procedure. Michael and his parents had no way of knowing about the neurosurgeon's lack of skill and experience with the surgeries he attempted. There was a wrong diagnosis: the small cyst was not the cause of Michael's symptoms.
One vibrant, promising life snuffed out by dishonesty and incompetence, and two parents left with the ruins. The Skolniks' first healthcare insurance company picked up the first $4.8 million of medical costs for Michael before canceling his policy when the fine print permitted them to do so, based on a technicality. A second insurance company picked up additional expenses, as did family members, and finally Medicaid kicked in. There were many big-ticket expenses that were not covered by anything, including by Medicaid, that had to be paid out of pocket. The Skolniks had made significant changes to their home to facilitate Michael's care, including ramps, changes to the bathroom, electric lifts suspended from the ceiling, a $6,000 bed, and even a specially equipped van to transport Michael safely to treatments. After the settlement, the insurance companies and Medicaid had to be repaid a certain percentage from the settlement. When it was all over, the Skolniks had a home full of equipment they couldn't use or need anymore, they were broke, and most devastating of all, they missed the sound of their son's voice.
The neurosurgeon? His malpractice insurance paid up. He found another neurosurgeon willing to testify that his performance had not been below the medical standard of care. Another of his colleagues defended him to local media, saying, "I don't think he made a mistake, he just had a bad outcome." (As you'll see throughout this book, this response from the medical community is exceedingly common.) The Colorado Board of Medical Examiners reviewed the case and said they found no wrongdoing. The doctor wasn't punished at all. Without so much as a slap on the wrist, he moved to another town where he is seeing patients. Apparently, this wasn't the first time he'd had to relocate as a result of difficulties with his practice of medicine.
If our profession can't get motivated by 400,000 preventable deaths, why would just one more matter? For Patty and David Skolnik, that one was the joy of their life and their best friend. They grieve for the unfulfilled promise of their son's life. They are grateful he is no longer suffering. They are angry that they lost him unnecessarily. They feel guilty because they trusted a doctor and didn't look further. And yes, they are bitter that the doctor who caused it all was not held accountable. A doctor can kill his patient and never have to do even one hour of community service. He gets off easier than a teenager caught stealing a candy bar from the local drugstore.
State legislatures are becoming increasingly aware of public demand for more medical transparency and accountability as the numbers and outcry over malpractice mount, and dozens of states have passed laws that in various degrees strip away the veil of secrecy that has traditionally protected the medical community. Colorado has led the way, in large part owing to the efforts of Patty Skolnik, who led the charge after her family's experience with this neurosurgeon. Colorado has passed three laws since 2007, including the Michael Skolnik Medical Transparency Act and two expansion acts, in response to Patty and David's efforts. Patty, David, and other family members of patients killed by incompetent doctors crisscross the country, meeting with and speaking to groups of young medical students, interns, and doctors about their experiences. What they have to relate often leaves their audiences in tears. Their listeners are grateful for being reminded of what caregiving is all about; some are so appalled at the callous and indifferent behavior of their chosen profession toward patients they have harmed that they are rethinking their career choices while they still have time to change and still have a conscience.
I can convey information in these pages about what goes on behind the veil of medical secrecy, but I know of no words to adequately describe the empty and bitter void left in the lives of these unfortunate people, for whom the worst day of their life was the day they or someone they loved entered the front door of the American health-care system.
Perhaps the lucky ones were the patients who left the hospital in a body bag; the most unfortunate were those who were so badly damaged that they took years to die, experiencing indescribable pain and anguish and incurring lifetimes of debt — patients like Michael Skolnik. Their Teflon physicians, to whom nothing sticks, move placidly on to their next patient and their next venture, without a glance at the broken lives in their rearview mirror.
If a flu epidemic killed a quarter of a million or more of us in one year, and incapacitated hundreds of thousands more, we would be afraid to leave our homes for fear of catching it. However, we enter our health-care facilities without a single thought about who the people treating us are or what they do or don't know, and we docilely place ourselves on their conveyor belt. We accept, with very few questions, a culture of secrecy designed to protect bad doctors from any sort of accountability.
License to Kill
It is important to note before we get deep into the issue of malpractice that not all hospitalizations can produce desired outcomes. Some patients are beyond help from modern medicine; they are too sick or dying, and the best we can do is make them as comfortable as possible until the inevitable happens.
Sometimes a patient's body does something unexpected, and in spite of the best efforts of alert and competent practitioners, the patient gets sicker or dies. A very small number of patients will die in surgery, even though no errors or malpractice occurred. There are adverse events that are not mistakes, not errors, not preventable.
We have system failures, such as what happens with flubbed patient hand-offs. With increasing staff specialization, many different practitioners at varying levels of education and experience are involved with each patient on all three shifts. This is true not only of hospitals, but also of in-home care. Someone seriously ill, perhaps just released from a hospital stay and convalescing at home, may experience a steady parade of caretakers in and out of their house. A successful clinical outcome can be jeopardized by something as simple as failed communications between these caretakers. Sometimes you can tell from the patient's records or chart who was responsible for a failure, and sometimes you can't. Sometimes it is due to multiple and cumulative communication failures. Fragmented care results in dispersed accountability.(Continues…)
Excerpted from "Malpractice"
Copyright © 2017 Lawrence B. Schlachter.
Excerpted by permission of Skyhorse Publishing.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.
Table of Contents
I. The Reality of Patient Harm
II. Records Patients Aren't Allowed to See
II. How I Became a Doctor
IV. How Doctors Cope with Trauma
V. The Art of Medicine
VI. The Medical Conveyor Belt
VII. The Time Crunch and Other Risks We Face
VIII. The Mask of Infallibility
IX. Cover-Ups and Semantic Games
X. How Good is "Good Enough"
XI. Why Dr. Codman Got Fired
XII. The Remarkable Case of Dr. Christopher Duntsch