Following published reports and extensive media coverage regarding egregious behaviors in the medical profession, public awareness of physician and hospital errors has increased. Despite that increased attention, data suggests that the rate of reporting by physicians is lower than it should be.

In the JAMA July 14 issue, one of the major themes covered was research articles and commentary on the Physician Peer Review process and its effectiveness. The medical peer review is the process by which a committee of physicians examines the work of a peer and determines whether the physician under review has met the accepted standards of care in rendering medical services. This process is put in place specifically to assure physicians that their statements will remain confidential when commenting on the behaviors of their colleagues (many of whom are a physician’s primary referral sources).

An original research study titled “Physicians’ Perceptions, Preparedness for Reporting, and Experiences Related to Impaired and Incompetent Colleagues” found that overall, “…physicians support the professional commitment to report all instances of impaired or incompetent colleagues in their medical practice to a relevant authority; however, when faced with these situations, many do not report.

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In legal cases, a term regularly shows up: “standard of care”. It is talked about, defined and ruled on by the court. In many state statutes, the term is defined as something similar to: “that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.”

What is the standard of care in its most basic terms?

If I am a pedestrian, do I have a “standard of care” as I walk along the street? Of course I do. I must watch the pavement as I am walking so as not to trip over obvious hazards. If I come upon a blocked area of the sidewalk, where work is being done for example, I have the duty to navigate carefully and as safely as I can around that hazard in continuing my walk. I have a duty to avoid running into other pedestrians using the sidewalk. If I must cross the street, I have a number of additional duties I must fulfill.

Why do we have “duties” and “standards” by which we must act? Without them, no one would know what was expected of them and we would not be able to anticipate how to expect others to conduct themselves in given situations.

A car is traveling down a dark, deserted country road, approaching an intersection with a stop sign. The car does not stop at the stop sign and, instead travels through it at highway speed. No other cars were approaching the intersection at the time. Was the driver negligent? Did the driver deviate from the reasonable standard of care? The driver was negligent, but, luckily, caused no damage to anyone. So, if a police officer was around, a ticket would be issued, but nothing further.  So, was it excusable, since no one was hurt? Absolutely not. The same example, but the approaching driver does not see an approaching motorcycle. The motorcyclist is struck and killed. A completely different set of circumstances results, but culminate from the exact same perceptions on the part of the driver in the car. In both situations, the driver “honestly” saw no harm by running the stop sign.

This is particularly true for professionals. The public absolutely must be able to depend on certain standards of performance from professionals. For an engineer who constructs a bridge, we expect that the bridge will carry the weight reasonably expected and will not collapse with that weight. We expect that the professional will act in a manner expected from other similar professionals.

When a doctor decides to treat people, she decides to work within a reasonable standard of care accepted by other physicians. Does that mean if a physician or other professional makes a mistake that they have deviated from the acceptable standard of care? Not necessarily. It means that the professional is obliged to act reasonably as judged by similar health care providers.

If a patient arrives at the hospital with symptoms consistent with 3 or 4 different potential illnesses, it is the job of any physician to determine those illnesses, which are life threatening and try to eliminate or include those first. If the condition could be life threatening, the professional is obligated to continue their investigation until they can determine what course of treatment is best for the patient.

Physicians, like any professional, have pressures extraneous to their profession. In the case, of an engineer, it may be cost overruns and their client may be pushing to cut corners somewhere to minimize those cost overruns. With physicians, it may be a hospital or insurance company. It is the job accepted by the any professional to comply with the reasonable standard of care. In the case of physicians, it is to determine those patients who require hospitalization in order to determine their illness and those who do not need hospital care.

Professionals are required to reach reasonable, well thought, courses of action within their profession. They typically go through additional schooling to prepare them for evaluating a reasonable course of action.  The subject of a professional’s decision may seem complex, but their standard of care is no less real than the driver or pedestrian.

In his June 11, 1963 civil rights address, President John F. Kennedy confronted head-on the unfair treatment of African Americans in our society under our then-existing system of laws. President Kennedy, in imploring Congress to pass fundamental civil rights legislation, stated:

“…the old code of equity law under which we live commands for every wrong a remedy, but in too many communities, in too many parts of the country, wrongs are inflicted on Negro citizens and there are no remedies at law.”

Unfortunately, President Kennedy’s reference to our system of justice having the ability to remedy every wrong states only an ideal, but, sadly, not reality. Sometimes the difference between principle and truth is the result of legislative inaction or by legislative activism. Perhaps the most glaring example of legislative activism stripping away the “guaranteed” rights of citizens to have both their day in court and a remedy for every wrong can be seen in the medical negligence arena.

Let us examine the following two hypothetical scenarios.

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Recently, a woman was impregnated at a fertility clinic with another woman’s embryo.  The woman has decided to give birth and give the baby to the biological mother.  This preventable and heart breaking mistake should not have happened.

There have also been mistakes in which parents have had their eggs tested for genetic defects only to have the genetically damaged egg implanted rather than the genetically sound egg.  It is a very costly investment both emotionally and financially.

A California couple discovered that the Laurel Fertility Care Clinic destroyed 7 of 13 viable embryos because they were mistakenly inseminated with the wrong sperm.  In this case the couple had a contract that provided no embryos were to be destroyed and the decision by the clinic prevented the couple from the opportunity to make their own decisions.

What is the cause of this problem? At least in part it is likely connected to the burgeoning demand for fertility treatment in the last several years. A report from Mail OnLine sets forth that the number, in Great Britain, of women going through in vitro fertilization has increased from 23,000 in 1995 to 35,000 in 2009. Yet, the number of facilities who handle in vitro fertilization there has not increased with the numbers of women seeking this treatment.

Last Thursday, Carolyn Savage gave birth to a child belonging to another couple. The embryo was mistakenly implanted in Ms. Savage, but actually belonged to Shannon Morrell. Both Ms. Savage and Ms. Morrell were hoping for a child; because of Ms. Savage’s unselfish act, she will be denied her child, but she will provide another family with their child.

The American Fertility Association issued the following press release:

The American Fertility Association Responds to Alleged Embryo Mix-Up Case in Ohio
September 24, 2009 – An Ohio woman, 40 year old Carolyn Savage, claims a fertility clinic implanted the wrong embryo and that the baby she’s due to deliver the first week in October is not hers.  Several media reports state Savage and her husband plan to give the baby boy to his biological parents.  The name of the clinic is not being released in this very rare alleged case.
The AFA is issuing the following statements regarding the matter:
Medical:
“If the facts in the Ohio case are concordant with media reports, it’s a very unfortunate circumstance for all concerned, a result not to be minimized or trivialized. The story is newsworthy, however, because it is an extremely rare event.
In 2007, there were 132,262 IVF cycles performed in the United States (Fresh, Frozen and Donor Egg, per the CDC) in which more than 300,000 embryos were placed into the intended recipients. Embryology laboratories have extremely rigorous procedures to maximally ensure public safety and the health of our patients and their children born of IVF.
The Ohio case is rarer than 1 in a million and I speculate that human error, not malintent, will prove to be the root cause. I have every confidence that each IVF program in the country will review their procedures and discuss this case to reinforce what we already know, that the work we do each and every day is very special and that the hundreds of thousands of patients we help each year are counting on us to do our best every day.”
-Alan Penzias, MD, Member, AFA Board of Directors
Legal:
“Unfortunately, due to the acknowledged negligence of the IVF Physician and clinic, this Ohio couple, by choosing to proceed with the pregnancy, is obligated to afford the other couple the legal rights to this little boy.  Any case, such as this that would go before a court of law, would likely grant full legal and physical custody to the other couple without any visitation to the Ohio couple.  They appear to be aware of this – such an unfortunate event for all parties involved.”
-Theresa Erickson, Esq., Member, AFA Board of Directors; Member, AFA Legal Advisory Council
Mental:
“As a psychotherapist and co-chair of The American Fertility Association, patients receiving treatments live in fear of this happening to them.  The AFA continues to encourage patients to become educated consumers and ask their treatment providers about their procedures for safeguarding their genetic materials. Programs are required to have in place strict guidelines that are overseen by numerous state and federal agencies requiring very specific procedures to be practiced and in place by each reproductive center.
These incidents are rare and patients should feel assured that the majority of centers follow these rigorous guidelines.  When these rare accidents do occur, it can be not only psychologically devastating to the couples involved in this mix-up but emotional damaging to the thousands of patients who are currently receiving or starting fertility treatments. We at the AFA hope that the media will allow these couples, the children involved, and the baby yet to be born to privately get the support that they need to cope with this emotionally difficult experience.”

This type of error can certainly be characterized by the national association as a “rare” error, but I am sure that neither Carolyn Savage nor Shannon Morrell can find much solace in this representation. Carolyn Savage will undoubtedly always wonder about the baby she brought into this world.

Making the decision to go to a fertility clinic in the hope of trying to conceive a child and/or have eggs tested for genetic factors must be a very difficult decision. All clinics and laboratories should have protocols in place to prevent these devastating errors from happening; causing devastating consequences to the parties involved. This is really a zero error tolerance business engaged in by fertility clinics. Providing an explanation such as that offered by the American Fertility Association is simply insufficient and lacks the very personal consideration due to these victims.

Become an educated consumer. Read, ask questions, be a persistent presence in the process of any medical procedure you undergo.

There is an old saying that if you have your health you have everything.  Anyone who has ever suffered a debilitating injury or lost a loved one to injury or disease knows this reality all too well.  We are also told by medical experts that an ounce of prevention is worth a pound of cure.  We are told to exercise, eat right, see a doctor for regular check-ups and indulge ourselves in life’s pleasures with moderation.

Regardless of our efforts to prevent injury and disease, inevitably we will require the services of a medical professional.  What is often overlooked is the important role of the patient in making sure the medical professional renders the very best of care.  This role is more important than we think.  For example, a 1999 study by the Institute of Medicine estimates that up to 98,000 people die in hospitals each year due to medical errors.  .  This exceeds the deaths from motor vehicle crashes, breast cancer and AIDS.

There was an excellent article on the CNN Health website advising patients to be proactive during a hospital stay to ensure that the very best care is received. The article suggests the following:

1.    Bring a list of the medications you are taking;
2.    Make sure the hospital gets your name right;
3.    Ask about every medication they give you;
4.    Make sure everyone washes their hands;
5.    If you think something’s wrong, don’t back down;

This is sage advice.  Many times, people admitted to a hospital feel helpless and confused and are hesitant to speak up when interacting with nurses and doctors.  We live in a culture that has for many years accepted the notion that what doctors say and do is not to be questioned.

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Patients who undergo shoulder, knee and ankle surgery often experience significant pain; particularly immediately post surgery. To try and manage that pain, physicians have often employed the use of pain pumps. These pumps inject pain killer into the body in a regulated fashion to minimize pain, while controlling the tendency toward addiction.

The pain pump is attached to a catheter, which was routinely inserted into the soft tissue near the affected joint. This use of the pump worked fine until the manufacturers of these devices started recommending that physicians could insert the catheter directly into the affected joint space and provide a much higher degree of pain relief. This was, of course, welcome news for physicians who always want to attempt to relieve or minimize the suffering of their patients. So all was good, then?

What pain pump manufacturers failed to tell physicians is that the Food & Drug Administration had never reviewed, let alone approved, the use of the pumps directly into the joint space. What the manufacturers should have known is that at least one of the manufacturer’s, McKinley Medical, asked the FDA to permit insertion of the devices into the joint space and the FDA asked for proof of efficacy. As far as we know, no data or evidence was presented to the FDA. Soon after this, Stryker Corporation purchased the exclusive rights to the pain pump from McKinley. (more…)

Our greatest asset is our children. As parents, we strive to provide them with the safest and healthiest environment possible. We spend a great deal of time researching the schools they will attend, including the daycare centers where we leave our toddlers for the better part of five days a week. We visit the schools, inspect the premises inside and out, meet with and talk to the teachers, and contact other parents with similar concerns. We read the brochures and pamphlets, and search the internet for information that will help us determine if a particular school will meet the needs of our children and meet our parental standards for care and safety. Does the school or daycare center have trained and qualified personnel to respond properly to health care emergencies? Has the facility thoroughly investigated the background information on teachers, aides, or others who are going to be around our little ones? The sex scandals that have headlined the news in past years have made all parents aware of the importance of daycare centers conducting proper and in-depth background checks on each of their employees.

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If you are one of the estimated 15 million Americans who will have a surgical procedure this year, pay attention, please! You and your loved ones may thank me later.

Every single time anyone has a surgical procedure performed, whether the surgery is life-saving or elective, there are risks involved. That “simple” and “routine” tonsillectomy for your five year old can actually result in death. The liposuction that your Aunt Sally has always wanted to remove those saddle bags could leave her with a pulmonary embolism. Nothing is without risk, even though most surgical procedures are much safer than they used to be – picture that bullet removal from Marshall Dillon’s chest from an old episode of “Gunsmoke” and you know what I mean.

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I am a former Buckeye and I guess things have not changed alot since I left in the mid-eighties. Then, as now, the Supreme Court prtected Big Business, while sacrificing the rights of individual citizens and, well, here they go again!

The Columbus Dispatch reports that in a 5 to 2 ruling the “justices” upheld caps on non-economic damages. The law limits the amounts injured victims can collect for “human damages” to a maximum of $350,000.

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You go to your local pharmacy to have your prescription filled, just like you have a number of times before. You give the handwritten prescription to the young person behind the desk and they return with your prescription, complete with a label on the front and the pre-printed instructions in the bag. You take the prescription as directed on the label and soon you develop a severe headache. Without any warning you unknowingly have developed significant bleeding inside your brain and before very long you have suffered brain injury so severe that you cannot communicate or move most of your body. You find yourself severely brain injured and are incapable of caring for the three children you held so dearly.

This is what happened to one of my clients. It seems like such a small mistake; just an extra key typed. You probably think that a pharmacist fills your prescription when you bring it into your pharmacy. That’s not the case. The actual person filling your prescription is the pharmacy technician. Pharmacy technicians are essentially assistants or helpers to the pharmacists. Pharmacy technicians are not required to have any education at all. They simply must be 16 years of age in Florida to qualify to fill prescriptions in a pharmacy.

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