Death By Medical Mistake: Put "Teeth" Into Reporting Requirements

As a result of nursing errors including a misadministration of pain medication, a simple arthroscopic shoulder surgery left one man brain dead. Two days later, the family made the decision to take him off life support. The family filed a complaint when hospital officials decided that the circumstances surrounding the man’s death didn’t fit into any of their State’s 28 definitions of “serious reportable events.” The complaint led to an investigation by the the Washington State Department of Health which determined:

· The man was given a continuous "drip" of a potent opioid pain medication, and outfitted with a device that allowed him to self-administer additional pain medication as needed.

· The doctor ordered the nursing staff to attach a device that would monitor the patient’s blood oxygen level and would alert staff if the amount of oxygen in his blood fell below a certain level. If that happened, the doctor was to be notified, the man was to be taken off the self-administered drug device, and given oxygen.

· The blood-oxygen monitoring device was not attached and when his blood oxygen level was measured below the defined level he stopped breathing. The staff did not call the doctor or take the man off the self-administering drug device.

· When the man was found not breathing, his heart was re-started, but he had already suffered brain damage due to the loss of oxygen.

Based on these errors, the only determination by the DOH was that the hospital needed to make changes to improve care. They concurred that the hospital was not required to report this case because the circumstances of the man’s death did not exactly fit any of the 28 available categories. Here, again, is another attempt to classify an instance of professional negligence into a convenient “one size fits all” category. Get this, if the man had died within 24 hours of surgery, his death would have qualified as ‘reportable’ under the category "intra-operative or immediately postoperative death" in a normal, healthy patient. I guess it’s the patient’s fault for not properly timing his death!

Despite the various State requirements, some hospitals are still failing to report mistakes. Others only report a portion of medical errors. Washington is one of 27 states that mandates a medical error reporting program, but due to lack of funding and appropriate guidelines contained in the law, it is not enforced. The medical error reporting program has obvious flaws. Efforts to correct problems have failed, at least, to this point. A year ago, a nationwide investigation exposed the most serious problems with the program.

· No enforcement: There’s no penalty for those who ignore or violate the law.

· It’s easy to dodge the intent of the law: The rules laying out which incidents must be reported make it easy for hospitals to determine that an error isn’t a "reportable error."

· Hands-off oversight: The nurse who runs the state medical error reporting program receives and reviews reports, but takes no steps to investigate non-reporting.

· Underfunding: Washington has one of the worst-funded error reporting programs in the country.

· Underreporting: Hospitals in Washington appear to be reporting less than a tenth of the events the law requires them to submit.

In response to this investigation, a bill was introduced to impose a $1,000 a day fine on any hospital failing to report an adverse event. Due to political pressure for the opposition, the bill went nowhere. If these facilities are not going to analyze reports and learn from their mistakes, we should all be fearful of the future of our healthcare. Not only should the errors be reported, but they should be analyzed. Without these kind of requirements, was is the point of the reporting effort?

Fines may help, but they are not the long term solution. They will not, by themselves, make hospitals safer; they will not, by themselves, ensure that all medical errors are reported. The focus of the healthcare industry needs to be placed on improving care and patient safety. It is not enough to simply report the errors. Medical errors have become almost epidemic; the baby steps being taken for improvement are not working. Instead of looking for a loophole, it is time to look for a cure. How will the healthcare industry put saving lives at the top of the priority list?

Repeatedly, we hear about the lack of funds. I repeat – big business, in this case, the healthcare industry, is putting financial gain over the lives and safety of its patients. This madness must stop! The industry must stop risking lives for personal or corporate gain. Ask a medical facility, before treatment, if it is one that reports its errors; if it says “no”, go elsewhere. The facility may have something to hide. A healthcare provider willing to report medical errors is muc more likely and willing to fix your problem. We make day-to-day purchases, with forethought, every day. Why do we not do the same research or make the same informed ‘purchases’ of healthcare? The ‘profit angle” of healthcare puts everyone at risk.

Mark Bello has thirty-three years experience as a trial lawyer and twelve years as an underwriter and situational analyst in the lawsuit funding industry. He is the owner and founder of Lawsuit Financial Corporation which helps provide legal finance cash flow solutions and consulting when necessities of life litigation funding is needed by plaintiffs involved in pending, personal injury litigation. Bello is a Justice Pac member of the American Association for Justice, Sustaining and Justice Pac member of the Michigan Association for Justice, Business Associate of the Florida, Tennessee, and Colorado Associations for Justice, a member of the American Bar Association, the State Bar of Michigan and the Injury Board.