Accidental deaths

We all know that heart disease, cancer, and respiratory disease are the three leading causes of death in this country. But, accidental death is fourth according to the Center for Disease Control and Prevention (CDC).

The are only “raw” causes of death, nowhere in the top 10 will we see any compilation of medical error deaths. The CDC does code for medical error on death certificates as an “underlying cause of death.”

According to a study by researchers at Johns Hopkins University, published in the British Medical Journal in May this year, medical error is actually the third leading cause of death (in excess of 250,000 per year). Death from heart disease, cancer, respiratory disease, or stroke (number 5 on the list), may have actually been the result medical error and we don’t code for it.

As Dr. Martin Markary has explained, “It boils down to people dying from the care they receive rather than the disease for which they are seeking care.”

Let me give you an example from popular culture – the death of Joan Rivers. She had relatively common out-patient surgical procedures to diagnosis a sore throat, an examination of her voice box and vocal cords (laryngoscopy) and upper digestive system (endoscopy).

Her doctors were starstruck, according to the lawsuit, one of them pulled out a cell phone to take pictures of Ms. Rivers, laying on the operating table. The anaesthesiologist was so distressed by what was going on that she wrote 5 pages of notes.

This last fact is important. Paul Newman won an Oscar for his portrayal of a boozy plaintiff’s attorney in the movie “The Verdict.” He had the perfect case, until the defense bought out his key medical witness, an esteemed anaesthesiologist, who assured Mr. Newman’s character that the surgeons had made his client a vegetable.

On the eve of closing arguments, he tracked down a nurse who kept a copy of the chart, because she knew that the doctors were going to try to alter the record. That fictional jury got the message.

Heroic honesty is almost a necessity to win a medical malpractice case; its likely why Ms. Rivers’ doctors settled the wrongful death claim against them. It easily costs at least $100,000.00 to take a garden variety malpractice case to trial, meaning most instances of medical malpractice never find an attorney to champion a lawsuit.

Even in a death case, where a substantial risk is justified, the hurdles are daunting. A jury does not decide negligence from a lay person’s perspective. Instead, a jury is instructed to only find negligence if the allegations fell below an industry’s “standard of care” (which means barely passable medicine).

Experts battle out this definition on the standard of care, leaving jurors are caught in an expert web trying to define the line separating the minimal of care from negligence.

Even where the expert testimony is easily understood by an untrained mind, there is another hurdle, and maybe the highest one, to overcome – respect. Most jurors view doctors without almost god-like reverence.

Unlike lawyers, of whom lay people are almost inherently suspicious, doctors are perceived as pillars of the community; attorneys are the devil, doctors are saints. Plaintiff’s understand this prejudice. The result is that the more widely known a doctor is amongst a potential jury pool, the less likely an attorney will take the case.

Doctors have spent decades bleating about the high cost of malpractice insurance and “unfair” potential of being sued.

Lawmakers have listened to the complaints their high-powered lobbyists and passed onerous laws making it even more difficult to sue doctors. Hence, legal ones barriers erected as chits to the medical community on top of more “natural” ones.

Lawsuits are spotlights on medical error causing harm. Directly, or indirectly, they cause the medical industry to take seriously how its errors are killing patients. Many hospitals are adopting “flight-check” procedures to medical care to save lives. Electronic medical records are eliminating thousands of instances of transcribing errors in prescriptions and surgeries.

Disinfection practices are reducing infection threats in hospitals. All because of lawsuits lost to plaintiff’s attorneys.

Yet, this is not enough. We cannot just rely on lawsuits to expose the medical community. Authors of the John Hopkins study have written an open letter to the CDC asking that medical error be added to causes of death. Maybe, it is time we took seriously the perspective of the plaintiff’s bar – too many innocent patients are harmed because of the arrogance of the medical community. Lets at least have an honest count.

Local attorney Jim Rockefeller owns the Rockefeller Law Center and is a former Houston Co. Chief Assistant District Attorney, and a former Miami Prosecutor. Visit www.rockefellerlawcenter.com to submit confidential legal questions, and to review former articles and Frequently Asked Questions.

A James Rockefeller 478-953-6955 ajr@rockefellerlawcenter.com

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