Lawyers Blog

Legislation recently passed by the House of Representatives includes a provision that will effectively protect doctors and other healthcare workers against medical malpractice lawsuits, according to the New York Times.

The primary purpose of the bill is to provide a mechanism by which the government can measure the quality of care provided by doctors, including a system by which a doctor’s performance is rated on a scale from zero to 100. Tucked into the bill, however, is a provision that prohibits the quality-of-care standards used in federal health programs from being used in medical malpractice cases. In other words, those performance ratings cannot be used as evidence of a doctor’s negligence for purposes of a malpractice lawsuit.

The Plaintiff in a medical malpractice case must prove that the Defendant’s care of the patient fell below the “standard of care.” The “standard of care” refers to the level and type of care that a reasonably competent and skilled health care professional, with a similar background and in the same medical community, would have provided under the same or similar circumstances. Typically, expert testimony is used to prove a Defendant’s treatment of a patient fell below the standard of care and was, therefore, negligent.

With the proliferation of quality metrics now required by various laws, including the Affordable Care Act, Plaintiffs may have another way to prove negligence in a medical malpractice lawsuit. The fact that a provider’s care violated state or federal safety standards, or that the provider’s performance was ranked below average, could be powerful evidence in the hands of a jury in a medical malpractice trial; however, if this House bill passes in its current form, that evidence will never make it to trial.

Around the world, 360 million people have moderate to profound hearing loss. Half of these cases of hearing loss are estimated to be avoidable. According to a recently-released news report from the World Health Organization (WHO), “some 1.1 billion teenagers and young adults are at risk of hearing loss due to the unsafe use of personal audio devices, including smartphones, and exposure to damaging levels of sound at noisy entertainment venues such as nightclubs, bars and sporting events.” Physical and mental health, education and employment are all significantly impacted by hearing loss. Studies from middle- and high-income countries were analyzed by WHO indicated that among teens and young adults aged 12-35, nearly 50% are exposed to unsafe sound levels from personal audio devices and almost 40% are exposed to potentially damaging sound levels at entertainment venues.

As noted by Dr. Etienne Krug, WHO Director for the Department for Management of Noncommunicable Diseases, Disability, Violence and Injury Prevention, “As they go about their daily lives doing what they enjoy, more and more young people are placing themselves at risk of hearing loss. They should be aware that once you lose your hearing, it won’t come back. Taking simple preventive actions will allow people to continue to enjoy themselves without putting their hearing at risk.”

Recommendations by WHO experts say that the highest permissible level of noise exposure at work is 85 dB up to eight hours each day. Because nightclubs, bars and sporting events typically have noise levels of 100 dB – a level that is safe for only about 15 minutes. Suggestions for teens and young adults for hearing protection include:

• Keeping volume down on personal audio devices,
• Wearing earplugs when visiting noisy venues,
• Using carefully-fitted, noise-cancelling earphones or headphones,
• Limiting time spent in noisy activities by taking short listening breaks,
• Restricting daily use of personal audio devices to less than an hour,
• Using smartphone apps to monitor safe listening levels,
• Heeding warning signs of hearing loss and getting regular hearing check-ups.

In addition to personal efforts to protect hearing better, other useful initiatives include:

• Developing and enforcing strict legislation on recreational noise,
• Raising awareness of risks of hearing loss with public information campaigns,
• Educating young people about safe listening,
• Managing entertainment venues by using sound limiters, offering ear plugs and “chill out” rooms,
• Designing personal audio devices with safety features,
• Displaying information about safe listening on products and packaging.

“To mark International Ear Care Day, celebrated each year on March 3rd, WHO is launching the “Make Listening Safe” initiative to draw attention to the dangers of unsafe listening and promote safer practices. In collaboration with partners worldwide, WHO will alert young people and their families about the risks of noise-induced hearing loss and advocate towards governments for greater attention to this issue as part of their broader efforts to prevent hearing loss generally.”

We all turn to doctors and other healthcare providers to treat injuries and illnesses; however, sometimes a doctor actually causes harm. In fact, medical errors occur far more often than most people realize. Obstetrical errors, in particular, impact a surprisingly large number of woman and newborns each year. Given the often-tragic results of obstetrical errors, it should come as no surprise that those errors ultimately account for a substantial proportion of the largest malpractice liability awards.

Consider the following facts and figures relating to obstetrical errors:

• More than 157,000 potentially avoidable injuries to mothers and newborns occurred during childbirth in just a single year, according to the federal Agency for Healthcare Research and Quality.

• Cesareans now make up almost one-third of all births, a sharp spike from two decades ago, when the rate was around 20 percent.

• A study published in Health Affairs found that rates vary dramatically among hospitals, from 7 percent to 70 percent and 2.4 percent to 36 percent among a lower-risk subgroup.

• Unexpected medical complications in deliveries were two to five times more likely in low-performing hospitals than in high-performing hospitals.

The good news is that when a focused effort is made to improve care and avoid medical errors the results can be dramatic. Consider the following examples as cited in a recent article in The Hill:

• Hospital Corporation of America reduced maternal fatalities from pulmonary embolism by 87 percent.

• New York Presbyterian Hospital registered brain injuries from oxygen deprivation to newborns at a rate 98 percent below the national average.

• Ascension Health, the nation’s largest Catholic hospital network, reduced incidence of brain trauma at four pilot sites by 85 percent.

• Premier Inc. health network reduced birth trauma among full-term newborns by 74 percent.

Efforts aimed at reducing the number of obstetrical errors are certainly commendable; however, for the victim of a medical error, a single error can be life-altering. Until medical errors are eliminated completely, victims and their families will continue to suffer physically, emotionally, and financially. Making matters worse, many states have enacted damage “caps” that limit the amount of compensation a victim can be awarded in a medical malpractice lawsuit, regardless of the extent of the harm suffered.

As any victim will tell you, more effort should be spent on preventing medical errors and improving patient care and less effort wasted on stripping victims of their rights.

A new study published in early July in the journal Pediatrics has many obstetricians and hospital safety officials talking.

Per the research, approximately 11 percent of medical errors affecting newborn babies stem from misidentification. Many hospitals use a relatively generic naming convention, in which newborns are named “babygirl Smith” or “babyboy Miller.” In some cases, this convention involves the mother’s name, such as “Debrasgirl Smith” or “Mindysboy Miller.”

Dr. Jason Adelman, a New York City public safety officer, reported that “many people knew that using only ‘babygirl’ or ‘babyboy’ was a problem, but they couldn’t really report it, because people don’t like to report errors… We came up with a way to track them.”

Dr. Adelman and his team examined the frequency and severity of errors in hospital orders over a two-year period at two different hospitals in New York. Fortunately, these errors are often caught and fixed before problems can develop, such as:

• One baby getting milk from the wrong mother and having an allergic reaction or some other problem as a result of drinking non-maternal milk;
• A patient getting the wrong imaging test or lab results;
• A patient being misdiagnosed or under diagnosed for a potentially dangerous condition.

Adelman et al found that, when hospitals use the more specific and concrete naming convention involving the mother, errors drop by a substantial 36 percent margin. Interviewed for the Milbank Quarterly about the study, a pediatrician at Newton Wellesley Hospital in Massachusetts named Dr. Clay Jones said “medical errors that can occur when physicians or other healthcare professionals confuse one patient for another can be quite serious, even deadly.”

However, he offered the caveat that “the results of the study are impressive, simply looking at the percent decrease in retract and reorder errors… but we can’t draw any firm conclusions.” Perhaps, the decrease in errors stemmed from the fact that researchers observed the hospital staff, for instance, making them more conscious of their behavior.

While more research is needed, the investigation suggests that very subtle factors can contribute to hospital errors, which lead to thousands of deaths and untold agony for American patients every year.