The Consequences of Truth: Compulsory Medical Error Reporting in New Jersey

Excerpted from "The Consequences of Truth: Compulsory Medical Error Reporting in New Jersey," Medical Malpractice Law and Strategy, Volume 26, Number 9, June 2009, by John Ratkowitz.

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 NEW JERSEY LEGISLATIVELY MANDATES AN ETHICAL RESPONSIBILITY

A. The statutory and regulatory scheme.

In 2004, the Legislature passed the Patient Safety Act, N.J.S.A. 26:2H-12.23 (PSA). This landmark legislation changed the way medical errors are dealt with in New Jersey by creating a legal duty to immediately disclose medical errors to patients who are harmed by them. N.J.S.A. 26:2H-12.25. There are few states in the nation that require this kind of disclosure. William M. Sage et al., The Relational Regulatory Gap: A Pragmatic Information Policy For Patient Safety and Medical Malpractice, 59 Vand. L. Rev. 1263 (2006) (noting that New Jersey was one of four states that recently passed legislation requiring patients to be informed when they were the victim of medical errors). Commentators have observed that the PSA has made the communication of healthcare errors a part of ordinary medical life. Edward A. Dauer, Postscript on Health Care Dispute Resolution: Conflict Management And the Role of Culture, 21 Ga. St.U. L.Rev. 1029, 1053 (2005).

Under the PSA, a patient must be informed no later than the end of the episode of care, or, if discovery occurs after the end of the episode of care, in a timely fashion, when the patient is a victim of "a serious preventable adverse event." N.J.S.A. 26:2H-12.25(d). A "serious preventable adverse event" is any adverse event that is preventable and results in death, loss of body part, or disability or loss of bodily function either lasting more than seven days, or that is still present at the time of discharge. N.J.S.A. 26:2H-12.25(a). In addition to requiring adverse events to be reported to the victims of medical malpractice, the Patient Safety Act also requires health care providers to report medical errors to the Department of Health and Human Services (the "Department"). N.J.S.A. 26:2H-12.25(c).

On January 24, 2008, the Department enacted regulations that gave teeth to the notification and reporting requirements of the Act. As of (a) March 3, 2008, for hospitals, (b) August 30, 2008, for ambulatory care facilities, home health care agencies and hospice providers, and (c) starting March 3, 2009, for nursing homes and assisted living facilities, health care providers have five business days after discovery of a serious preventable adverse event to notify the Department that a preventable adverse event has occurred. N.J.A.C. 8:43E-10.1, N.J.A.C. 8:43E-10.6(b). The notification requires the inclusion of specific categories of information, including: (a) the date and time the event occurred, (b) a brief description of the event, (c) a statement about the impact of the event on the health of the patient, (d) the date and time the facility became aware of the event, (e) how the event was discovered, (f) the immediate corrective actions to facility took to eliminate or reduce the adverse impact of the event on the patient, and (g) what steps were taken to prevent the occurrence of future similar events. N.J.A.C. 8:43E-10.6(c). Failure to comply with these reporting requirements results in a fine of $1,000 a day. N.J.A.C. 8:43E-3.4(14).

Medical providers have 24 hours after the discovery of a serious preventable adverse event to notify a patient that it has occurred. N.J.A.C. 8:43E-10.7(b). Patients are to be notified in person if they are still at the facility or by telephone or by certified mail if they are not. N.J.A.C. 8:43E-10.7(c). Disclosure to a patient must be accompanied by documentation in the patient's medical chart which indicates: (a) that the disclosure was made, (b) the time, date and individuals present when the disclosure was made and (c) the name of the person to whom the disclosure was made. N.J.A.C. 8:43E-10.7(f). Medical providers failing to disclose a serious preventable adverse event to a patient are subject to a fine of $1,000 if the event was also not disclosed to the Department of Health and Senior Services, but $5,000 if they reported the event to department, N.J.A.C. 8:43E-3.4(15).

B. The Insufficiency of Existing Ethical Mandates to Disclose Medical Errors.

It is significant that when mandating the disclosure of medical errors under the PSA, New Jersey sought only to compel medical providers to do something already ethically required. Under the American Medical Association Code of Ethics, physicians have an ethical obligation to advise a patient when they commit consequential acts of medical malpractice when "a patient suffers significant medical complications that may have resulted from the physician's mistake or judgment." Am. Med. Ass'n Code of Medical Ethics A-02 Edition, E-8.12 Patient Information, 77. Similarly, the American College of Physicians Ethics Manual mandates disclosure of errors if disclosure of this information is "material to the patient's well-being." Lois Snyder & Cathy Leffler, Ethics Manual, Fifth Edition, 142 Annals Internal Medicine 560, 563. Finally, the Joint Commissions on Accreditation of Health Care Organizations requires that patients be informed of unanticipated results that differ from the expected outcome in a significant way when a medical error occurs at a hospital. Joint Comm'n on Accreditation of Health Care Orgs., Revisions to Joint Commission Standards in Support of Patient Safety and Medical/Health Care Error Reduction 12 (2001).

Disclosure of medical errors is not only ethically mandated, literature supports that it is consistent with the fiduciary nature of the physician-patient relationship, since in most instances, disclosure of errors will be benefit a patient. C.J. Wusthoff, Medical Mistakes and Disclosure: The Role of the Medical Student, 286(9) Journal of the American Medical Association, 1080, 1081 (2001). Disclosure helps gain the cooperation of a patient who has been harmed by an error. Id. Further, understanding the cause of unexpected problems can relieve anxiety about recovery or complications. Id. Finally, some commentators have suggested that since patients need information about errors to make decisions about their medical care, disclosure of malpractice is part of a physician's duty to provide a patient with informed consent. Thomas H. Gallagher, Wendy Levinson, Disclosing Medical Errors to Patients: a Status Report in 2007, 177(3) Canadian Medical Association Journal 265 (2007).

In theory, physicians agree that they have an ethical obligation to disclose medical errors. One study suggests that between 70 and 90% of the physician population believes that doctors should disclose errors to patients. Kathleen M. Mazor et al., Communicating with Patients about Medical Errors, 164 Archives of Internal Medicine 1690, 1692 (2004). In another study, 97% of the faculty and resident population surveyed indicated that they would disclose medical errors that caused minor harm, and 93% indicated that they would disclose an error causing major harm. Lauris Kaldjian , et al. Disclosing Medical Errors to Patients: Attitudes and Practices of Physicians and Trainees, 22(7) J Gen Intern Med 988-96 (2007).

Regrettably, while physicians are ethically obligated to inform their patients of consequential medical malpractice and studies suggest they intellectually support this principle, theory has not translated into practice. A study revealed that only 24% of residents surveyed reported the medical errors they committed to their patients. Albert Wu, et al. Do House Officers Learn From Their Mistakes? 12 Quality & Safety Health Care 221, 224 (2003). Another study estimated that nationwide, physicians are only disclosing errors to patients about 1/3 of the time. Robert J. Blendon et al., Views of Practicing Physicians and the Public on Medical Errors, 347 New. Eng. J. Med. 1933, 1935 (2002) .

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THE GENERAL IMPACT OF COMPULSORY ERROR REPORTING AND DISCLOSURE

A. Compulsory Error Reporting Will Make Significant Contributions to the Improvement of the Quality of Health Care Everywhere.

Mandatory disclosure of medical errors in New Jersey will provide invaluable information useful to medical providers everywhere. First, it will provide information about the scope of the medical malpractice problem. In November 1999, the Institute of Medicine, a branch of the National Academy of Sciences, declared that a threshold improvement in the quality of health care was needed because studies indicated that medical negligence committed in hospitals in the United States were killing more people annually than motor vehicle accidents, breast cancer and AIDS. Kohn LT, Corrigan JM, and Donaldson MS, To Err Is Human: Building a Safer Health System, National Academy Press pg. 26 (1999). (hereafter "To Err is Human"). As alarming as the statistics disclosed in the Executive Summary of this study were, it is significant that the analysis dealt only with deaths caused in hospitals. New Jersey's mandatory disclosure requirements apply not only to hospitals, but to all health care providers in the state. Not just deaths, but any preventable event that impacts a patient's health for more than seven days must be reported. Thus, mandatory disclosure of medical errors in New Jersey may provide the government and health care industry with the first accurate picture of the human and economic costs related to medical mistakes.

Beyond acquiring knowledge about the scope of the problem, analysis of the information generated from a statewide policy of compulsory error disclosure will provide the health care industry with the ability to analyze patterns in the data collected to see why system errors occur, and this will help determine what can be done to avoid or minimize certain problems. Surprisingly, such a systematic approach to dealing with medical errors is absent. In To Err is Human, the authors noted that the health care industry is at least a decade or more behind other high-risk industries in its attention to ensuring the basic safety of people it services. Id. at 5. The Institute of Medicine indicated that a multifaceted approach was needed to improve the quality of health care. Id. at 4. One of the changes it called for was mandatory reporting of serious adverse events so that these could be studied. Id. at 102. To date, the failure to disclose medical errors has undermined efforts to improve patient safety. Hebert PC, et al. Bioethics for Clinicians: 23. Disclosure of Medical Error, 164 CMAJ, 509-513 (2001); The Joint Commission on Accreditation of Healthcare Organizations, Health Care at the Crossroads: Strategies for Improving the Medical Liability System and Preventing Patient Injury, pg. 27 (2005). New Jersey's statewide compulsory error reporting requirement is one of the most significant first steps taken to correct this problem. Clearly, industry experts all over the world will be watching what New Jersey learns on this front.

B. Compulsory Error Disclosure Will Not Necessarily Result in an Increase in Medical Malpractice Filings in New Jersey.

There are few health care systems that enforce a policy of mandatory medical error disclosure. As a result, it is difficult to estimate how the PSA's compulsory error reporting requirements will impact medical malpractice filings in New Jersey. Nevertheless, studies in smaller systems where this was done demonstrate that the impact of mandatory disclosure on filings may be negligible and perhaps even positive. The Veterans Affairs Medical Center in Lexington, Kentucky, the University of Michigan Health System and a Colorado malpractice insurance company, COPIC, developed programs to fully disclose medical errors while simultaneously attempting to compensate the victims of malpractice if warranted. Disclosing Medical Errors to Patients: a Status Report in 2007, supra, at 266. All of these organizations found that the number of malpractice claims filed either stayed the same or decreased. Id.; Christian J. Vercler, et al., Communicating Errors, 140 Cancer Treatment and Research, 195-213, 204 (2008).

Although seemingly counterintuitive, the idea that compulsory medical error disclosure may not yield more malpractice lawsuits is corroborated by studies that seek to ascertain what motivates patients to sue their doctors. Financial compensation is not the most common reason that people give for filing a medical malpractice lawsuit. In fact, it is fifth on the list, behind (1) a clear admission that a mistake was made, (2) a full explanation of the error, (3) a sincere apology, and (4) reassurances that things are being done so that the error is not repeated. Thomas Gallagher et al, Patients' and Physicians' Attitudes Regarding the Disclosure of Medical Errors, 289 JAMA 1001, 1004-1006 (2003). It may very well be that because the PSA's compulsory error reporting requirements will immediately satisfy the first four of the above desires, some potential lawsuits will not be filed.

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THE PSA AND CHANGING THE CULTURE OF HEALTH CARE

An examination of the reasons why health care providers failed to meet their ethical obligation to disclose errors can shed light on how mandatory error reporting will change malpractice litigation because the same forces which discourage the reporting of medical mistakes when they occur likely discourage physicians from taking responsibility for mistakes after a lawsuit is filed.

Health care providers' failure to fulfill their ethical obligation to disclose medical errors is often blamed on the fear of potential medical malpractice lawsuits. Putting aside the question of whether avoiding being held financially responsible for a mistake is a valid basis to reject an ethical obligation to report it, scholarly articles addressing the subject of why physicians fail to disclose errors suggest motivations besides fear of lawsuits are at play. Notably, despite the fact that there are procedural safeguards in place to prevent statements made in M&M conferences from being used against a health care providers in medical malpractice cases, physicians are still reluctant to discuss medical mistakes in these forums, leading some commentators to conclude that legal liability does not inhibit the discussion of errors in these conferences as much as other factors, such as the social norms of medicine. Wei, Marlynn, Doctors, Apologies and the law: An Analysis and Critique of Apology Laws, 40(1) Journal of Health Law 107-59, 132 (2007).

Beyond M&M conferences, academics have noted that physicians do not disclose errors even when they are permitted to do so anonymously, without fear of retribution:

What is most striking is that even nonpunitive medical error reporting measures suffer from underreporting. Reporting systems at the federal and state level have attempted to build a database upon which providers can improve patient safety. Nevertheless, the detection and prevention of medical error continues to be plagued by under reporting of adverse events, even when the reports are anonymous, voluntary and confidential.

Id. at 36. (2007).

Some have suggested that the culture of medicine, instilled in physicians beginning in medical school, is responsible for the widespread abandonment of the ethical obligation to disclose errors. Gallagher TH, Waterman AD et al. US and Canadian Physicians' Attitudes and Experiences Regarding Disclosing Errors to Patients, 166(15) Archives Internal Medicine 1605-1611. (2006). Similarly, it has been hypothesized that the failure to disclose errors is due to a "medical narcissism," which develops through doctors' "idealistic, perfectionist projection of themselves" which causes the mere acknowledgment of an error to be "so psychologically damaging to the physician's sense of self that he or she will go to great lengths to rationalize and obfuscate the facts of the error." Vercler CJ et al., Communicating Errors, 140 Cancer Treatment and Research 195-213, 206 (2008). (discussing Banja J.D., Medical Error and Medical Narcissism, Jones & Bartlet: Sudbury, MA (2005). According to this theory, a kind of preexisting narcissism drives individuals to become physicians in the first place, and a narcissistic inclination is then supported and encouraged through the medical education process, where residents are encouraged to strive for perfection. Communicating Errors, supra, at 206. Emotional detachment is simultaneously developed as a survival strategy, and the loss of empathy and the goal of perfection combine to present a major barrier to disclosure of mistakes. Id.

There are other aspects of the culture of medicine that contribute to the failure of physicians to disclose errors, including the desire of physicians to remain self-regulated. Doctors, Apologies and the law: An Analysis and Critique of Apology Laws, supra, at 146. Simply put, physicians resent being told how to treat their patients, especially by non-physicians. Id. Furthermore, disclosure of errors chips away at the mask of infallibility that physicians wear. Id. at 147. Infallibility supports two fundamental aspects of the physician-patient relationship. First, it buttresses the physician's position of authority in the relationship. Id. Second, it instills a sense of certainty in the physician's treatment recommendations. Id. at 148.

Physicians also resist the disclosure of errors because doing so creates worries about costs to reputation, loss of referrals and risk of litigation. Id. Finally, there are problems of analysis that contribute to physician's failure to disclose errors because there can be doubt about the cause of a particular outcome. Communicating Errors, supra, at 204.

"The culture of an organization is the nonverbal part of the ongoing conversation among the individuals who comprise the organization." Edward Dauer, Postscript on Health Care Dispute Resolution: Conflict Management and the Role of Culture, 21 Ga.St.U.L.Rev. 1029, 1044 (2005) (discussing Debra Gerardi, The Culture of Health Care: How Professional and Organizational Cultures Impact Conflict Management, 21 Ga.St.U.L.Rev. 857 (2005)). As one commentator observed, by compelling the disclosure and reporting of medical errors, the PSA is forcing a change in the culture of health care in New Jersey. Postscript on Health Care Dispute Resolution: Conflict Management and the Role of Culture, supra, at 1053. It stands to reason that this health care culture change will impact medical malpractice litigation.

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CONCLUSION

The PSA has provisions which prevent disclosures made pursuant to its terms from being used against medical providers in a malpractice case. Any documents submitted to the Department of Health and Human Services are not subject to discovery or admissible in evidence in a civil or criminal hearing. N.J.S.A. 26:2H-12.25(f)(1). Additionally, a statement by healthcare provider advising a patient that he is the victim of a serious preventable adverse event are is not discoverable or admissible in evidence in a civil trial.

Although disclosure of a medical error under the PSA may not be brought to the attention of a jury in a medical malpractice case, it is a mistake to conclude that the compulsory immediate disclosure of a medical mistake will not impact medical malpractice litigation. Disclosure of a medical mistake under the PSA will require health care providers to immediately examine their actions and take responsibility for preventable adverse events of consequence. Not every serious preventable adverse event under the PSA will constitute a meritorious and viable medical malpractice claim. Nevertheless, every meritorious and viable medical malpractice case should meet the requirements of being a serious preventable adverse event under the PSA. Therefore, hereafter, in most medical malpractice cases, a defendant health care provider will have already examined his actions, concluded a mistake of consequence was made, and advised his patient and the state accordingly.

Failing to disclose medical error when they occur will often foreclose a physician from acknowledging the mistake in a subsequent lawsuit. Doctors, Apologies and the law: An Analysis and Critique of Apology Laws, supra, 110-111. At a minimum, if a plaintiff prevails, a defendant doctor can appear cold and unapologetic to the jury. Id. Furthermore, failing to honestly deal with a mistake at its outset can set the tone in a subsequent litigation, turning circumstances involving an honest error into a zero-sum credibility challenge, which unnecessarily escalates the stakes for everyone involved in the lawsuit.

Compulsory disclosure under the PSA should make medical malpractice cases less contentious because in many cases defendants will have already acknowledged and come to terms with the fact that they have committed a consequential mistake. Further, because the cultural and economic pressures that discourage disclosure and reporting of errors are some of the same forces that serve as obstacles to resolving a medical malpractice lawsuit, the PSA's compulsory error reporting requirements should obviate many unstated motivations medical malpractice defendants have for not taking responsibility for their actions throughout the course of a lawsuit.

In 2003, the American Arbitration Association (AAA) reported that out of the thousands of matters it handled throughout the United States, only 1 involved a claim of iatrogenic injury in a health care setting. Dauer, Edward A., Postscript on Health Care Dispute Resolution: Conflict Management and the Role of Culture, supra, at 1036. There is reason to believe that changes mandated by the PSA may make ADR a more useful tool for medical malpractice defendants.

If the changes in medical culture caused by compulsory error disclosure and reporting make medical malpractice cases in New Jersey less contentious, plaintiffs will not be the only beneficiaries. Ninety-five percent of physicians sued for malpractice report strong emotional responses related to that event, physical reactions or both. Doctors, Apologies and the law: An Analysis and Critique of Apology Laws, supra, at 139. Id. One half reported insomnia and a minority reported the manifestation of physical problems related to being sued for medical malpractice. Id. at 140.

Perhaps the PSA's error reporting and disclosure requirements will be just what the doctor ordered for patients and doctors who are unfortunate enough to have to go through a medical malpractice litigation. To be sure, many will be watching to see the impact this legislation has on the health care profession in New Jersey.

Seven Reasons Why Falsification of Records Does Not Pose a Major Problem in Medical Malpractice Litigations

When clients contact me about a potential medical malpractice case, more often than not one of their concerns is the possibility that a medical provider might falsify records to hide evidence of negligence.

Unfortunately, falsification of records is possibility in any medical malpractice case. I have seen a variety of attempts at this through the years. The most egregious example involved a plastic surgeon who literally created an entirely new set of office records so that he could claim that he provided my client with the appropriate informed consent. Usually, however, when medical records are altered, the result is more subtle. Sometimes an extra notation is added to a record to suggest a certain action was taken. Other times, a diagnostic report or consultation letter is removed from a physician's chart to suggest the doctor was unaware of something that should have provoked action. Occasionally, a doctor will suggest that he communicated information to a patient when, in fact, he did not. 

Here are seven reasons why falsification of records does not pose a major problem in medical malpractice litigations:

1. There are motivators in place to discourage medical providers from falsifying records. First, falsifying a medical record is a crime, for which a doctor can be criminally prosecuted. Second, falsification of records is an independent civil cause of action (fraudulent concealment or spoliation of evidence) that can expose a medical provider to punitive damages. Finally, a medical providers insurance carrier may attempt to disclaim coverage when medical records are falsified. 
2. Forensic experts can review a record and tell whether a record has been altered. Expert document examiners can analyze medical records and determine whether they have been tampered with. They can detect differences in ink, look for the presence or absence of indentations on sheets above and below the questioned document, and perform chemical analysis of documents to expose fraudulent changes.
3. It is very difficult for medical providers to successfully falsify medical records in an institutional setting. In a hospital, there are usually multiple actors creating contemporaneous records who are concerned with and writing about the same facts. Therefore, if a doctor changes a part of one record, it will often be inconsistent with what is written by other doctors and nurses. This is especially true because when an unexpected outcome occurs in a hospital setting, those who are not responsible for the outcome tend to chart defensively and provide more detail in records so that they are not implicated when a review of the care is undertaken by the hospital, or later in a civil litigation.  
4. Falsification of records create a void or disruption in the timeline of care. Records related to medical care create a coherent timeline where causes and effects can be evaluated after the fact. If an individual changes a key fact in the timeline, this stands out and creates suspicions. At that point, forensic experts can be consulted to review a record if other aspects of the chart do not corroborate that a record has been altered.
5. Falsifying records after the fact can be perilous if the records have already been distributed to other people. Health care providers share their records with other doctors, and this happens frequently. Consultation notes, diagnostic tests results and preoperative clearances are forwarded to referring physicians, health insurance carriers and hospitals. If there is more than one version of the same record, there is a good chance that this will come to light when records are assembled by attorneys in a medical malpractice case.
6. Records falsified after the fact will conflict with billing records. Billing records are submitted to Medicare, Medicaid and insurance companies close in time to when medical care is provided. In addition to dates of treatment, billing records often contain diagnostic codes.  When medical records are falsified they will often be contradicted by a medical providers billing records. 
7. If a doctor falsifies a record about a pertinent issue in your case, they are often helping, rather than hurting your case. If a doctor falsifies a medical record and you can prove this, you have the best proof possible on that issue available, since they would not bother changing a record to hide or add a fact if it was not important to a patient's care and a potential litigation.

How to Get Answers to Questions When Unexpected Medical Outcomes Occur.

I think that most doctors would be surprised to know that when people contact me about a potential medical malpractice case, they are not primarily concerned with being financially compensated for the consequences of a medical mistake. Rather, more often than not, what motivates a patient or a family member to call my office is the fact that they are not getting answers to questions they have from their health care providers.

The overwhelming majority of medical malpractice telephone calls I receive are from family members of patients who are still under active care seeking answers to questions that are not being provided by doctors. An unexpected outcome occurs and no explanation for this is provided. Family members become concerned that they do not have real understanding of their loved one's current medical condition. The lack of information causes them to worry that there might be additional risks they are not aware of. Inevitably, I tell people in these circumstances that it is too early to consider the issue of whether they have a viable medical malpractice claim and I encourage them to contact the hospital's patient advocate to help them get answers to their questions medical questions. I also provide them with the information below, to educate them about their legal rights.

Under the American Medical Association Code of Ethics, physicians have an ethical obligation to advise a patient when they commit consequential acts of medical malpractice when "a patient suffers significant medical complications that may have resulted from the physician's mistake or judgment." Am. Med. Assn. Code of Medical Ethics A-02 Edition, E-8.12 Patient Information, 77. Similarly, the American College of Physicians Ethics Manual mandates disclosure of errors if disclosure of this information is "material to the patient's well-being." Lois Snyder & Cathy Leffler, Ethics Manual, Fifth Edition, 142 Annals Internal Medicine 560, 563. Finally, the Joint Commissions on Accreditation of Health Care Organizations requires that patients be informed of unanticipated results that differ from the expected outcome in a significant way when a medical error occurs at a hospital. Joint Comm'n on Accreditation of Health Care Orgs., Revisions to Joint Commission Standards in Support of Patient Safety and Medical/Health Care Error Reduction 12 (2001).

In New Jersey, the Patient Safety Act, N.J.S.A. 26:2H-12.23 (PSA) imposes a legal duty to immediately disclose medical errors to patients who are harmed by them. N.J.S.A. 26:2H-12.25.  Under the PSA, a patient must be informed no later than the end of the episode of care, or, if discovery occurs after the end of the episode of care, in a timely fashion, when the patient is a victim of "a serious preventable adverse event." N.J.S.A. 26:2H-12.25(d). A "serious preventable adverse event" is any adverse event that is preventable and results in death, loss of body part, or disability or loss of bodily function either lasting more than seven days, or that is still present at the time of discharge. N.J.S.A. 26:2H-12.25(a). In addition to requiring adverse events to be reported to the victims of medical malpractice, the Patient Safety Act also requires health care providers to report medical errors to the Department of Health and Human Services (the "Department"). N.J.S.A. 26:2H-12.25(c).

As of (a) March 3, 2008, for hospitals, (b) August 30, 2008, for ambulatory care facilities, home health care agencies and hospice providers, and (c) starting March 3, 2009, for nursing homes and assisted living facilities, health care providers have 24 hours after the discovery of a serious preventable adverse event to notify a patient that it has occurred. N.J.A.C. 8:43E-10.7(b). Patients are to be notified in person if they are still at the facility or by telephone or by certified mail if they are not. N.J.A.C. 8:43E-10.7(c). Disclosure to a patient must be accompanied by documentation in the patient's medical chart which indicates: (a) that the disclosure was made, (b) the time, date and individuals present when the disclosure was made and (c) the name of the person to whom the disclosure was made. N.J.A.C. 8:43E-10.7(f). Medical providers failing to disclose a serious preventable adverse event to a patient are subject to a fine of $1,000 if the event was also not disclosed to the Department of Health and Senior Services, but $5,000 if they reported the event to department, N.J.A.C. 8:43E-3.4(15).

If a patient suffers a significant permanent injury as a result of a preventable medical mistake, then after the health care event is over, consultation with a medical malpractice attorney should be considered. If questions about an unexpected outcome are going unanswered in the midst of a medical crisis, however, a patient should contact the hospital's patient advocate and insist on a full explanation of the care provided and description of their current medical condition. Doctors have an ethical obligation to provide this information.

Settlement at trial of a medical malpractice case on behalf of a 28-year-old Brick, New Jersey, resident who suffered neurological damage following orthopedic surgery to his knee.

Partner John Ratkowitz (Click here for bio)resolved an orthopedic malpractice claim on behalf of a 28-year-old resident of Brick, New Jersey, who suffered nerve damage following orthopedic surgery to his left knee.

The plaintiff underwent knee surgery on September 13, 2005. Following the surgery, his left leg was placed in a cylinder cast that went from his foot to his thigh. On September 14, 2005, he began to notice increased swelling in the lower part of his left leg in the ankle and foot area. As the day went on the swelling continued. He developed first a tingling sensation, then later in the day numbness and pain. Eventually, later in the late afternoon or early evening, as his symptoms increased, and the plaintiff telephoned the operating surgeon's office. No physicians were available¸ and the answering service advised that they would have an on-call physician return his call. Approximately an hour later a physician telephoned the plaintiff and advised him that he should elevate his foot and apply ice to his leg to reduce the swelling and symptoms.

Elevation and ice did not alleviate the plaintiff's symptoms and the next morning, September 15, 2005, he and his mother both telephoned the orthopedic practice several times to see what they should do about this. Around 10 o'clock in the morning, a person from the practice telephoned the plaintiff's mother, advising that she could either bring the plaintiff into the office to be seen that morning or she could wait until Friday which was the next day and bring him in to his regularly scheduled appointment. The plaintiffs were told that if they visited that morning, they wouldn't be able to see the operating surgeon, because he was at the hospital. They elected to wait until the next day, since the operating surgeon was the only orthopedist the plaintiff had ever seen.

While the plaintiff did not know this, the tingling and pain was peroneal nerve compression due to swelling inside the cast. Between the calls and the first doctor visit, the problem became irreversible.

The plaintiff took the position that injury to the peroneal nerve as a result of swelling inside a cast is a well-known potential complication that is entirely avoidable and that accepted standards of medical care required the defendant to immobilize the plaintiff's leg in a way that didn't put that nerve at risk.

The defense argued that the all medical providers acted within accepted standards of care,

Mr. Ratkowitz settled the case shortly after it was assigned to a trial judge. The terms of the settlement are confidential.

Click here to email John Ratkowitz

The Relevance of Never Events in Medical Malpractice Litigation

Excerpted from "Never Events in Medical Malpractice Litigation," September 2010, Vol. 27, No.126. Medical Malpractice Law & Strategy. By John Ratkowitz and Robert Sanfilipo

The National Quality Forum is a nonprofit organization which aspires to set priorities and goals for improvement in healthcare in the United States. To pursue its mission it established the concept of "Never Events," a list of serious complications that should never occur in a safe hospital. Arnold Milstein, Ending Extra Payments for “Never Events” – Stronger Incentives for Patients Safety, 360 (23) New Eng. J. Med. 2388, 2388-90 (2009).

 On February 8, 2006, President Bush signed the Deficit Reduction Act of 2005, Section 501(c) of Pub. L. 109-171, instructing the Department of Health and Human Services (the Department) to create its own list of Never Events, so that Medicare payments could be decreased when preventable complications occur in hospitals. On October 1, 2008, the Centers for Medicaid and Medicare Services (CMS) identified eight categories of complications for which it would no longer reimburse hospitals if they developed during a hospital admission: foreign objects left in the body after surgery, air emboli, infusion of incompatible blood, falls and traumas, catheter associated urinary tract infections, mediastinitis after coronary-artery bypass grafting, certain infusion associated infections, and pressure ulcers. Sharon K. Inouye, et al., Medicare Nonpayment, Hospital Falls, and Unintended Consequences, 360 (23) New Eng. J. Med. 2390, 2390-92 (2009). This list was later expanded to include poor glycemic control, deep-vein thrombosis or pulmonary embolism associated with knee or hip replacement surgery, and certain orthopedic and bariatric surgical-site infections. Milstein, supra, at 2388. In January 2009, CMS went further and indicated that it would cease payments to hospitals and physicians when surgery was performed on the wrong patient, when the wrong surgical procedure was performed, or when surgery was performed on the wrong side or wrong body part. Id. at 2388. These actions of federal regulators were said to be an effort to "align financial incentives with the quality of care, thereby promoting both quality and efficiency." Inoye, et al., supra, at 2391.

Major private insurers have decided to follow the lead of the federal government by adopting similar reimbursement denials when patients have been harmed in hospitals through categories of preventable medical errors. Among these insurers are Aetna Inc., Cigna HealthCare, Anthem Blue Cross Blue Shield in New Hampshire, Blue Cross Blue Shield of Massachusetts and WellPoint. Rachel Morgan, R.N., National Conference of State Legislatures, Medicare Nonpayment For Medical Errors, (2008), http://www.ncsl.org/Portals/1/documents/health/MCHAC.pdf. Additionally, in July 2008, CMS contacted all State Medicaid Directors and urged them to adopt policies echoing its denial of payments for Never Events in order to avoid the potential negative fiscal impact that non-payment of Never Events by Medicare might have on states, given the problem of dual eligibility under these plans. Id. Clearly, refusing payment for avoidable medical expenses is a public policy trending towards expansion.

Commentators have questioned the wisdom of Medicare's policy decision to refuse to pay for Never Events. See Inouye, et al., supra; See also, See also Peter J. Pronovost, et al., The Wisdom and Justice of Not Paying for “Preventable Complications,” 299(18) J. Am. Med. Ass’n. 2197, 2197-99. Even critics of the policy, however, have characterized Medicare's decision not to reimburse for costs related to leaving objects in the body after surgery as “wise and just." Id. at 2199. When discussing the propriety of including retained foreign objects as one of the original eight categories of Never Events in its non-reimbursement policy, the Department pointed out that in the field of health care, "there are widely accepted and clear guidelines for the prevention of [these] events." 72 Fed. Reg. 426,206 (Aug. 22, 2007). Consequently, according to the Department, this kind of mistake "should not occur." Id.

In 2006, there were 764 instances in which Medicare was billed for care related to retained objects following surgery. Id. Although there is not a comprehensive database that sets forth information about every medical malpractice case filed involving allegations of a retained foreign object, Westlaw does contain a national database of verdicts, judgment and settlements compiled from regional and national jury verdict reporters. However, articles submitted to these reporters are strictly on a voluntary basis. Further, medical malpractice defendants almost always require confidentiality as part of any settlement agreement. Thus, Westlaw's database is no doubt a very small sample of cases filed and litigated. At the same time, it is also one of the only tools available (to plaintiffs' lawyers) to examine how categories of certain types of claims are handled from inception to resolution.

A search of medical malpractice cases involving the retention of surgical sponges in Westlaw’s national jury verdict data base reveals that there have been twelve medical malpractice cases involving retained sponges throughout 2008 and 2009. See An v. Shaw, No. 06 L 11100, 2009 WL 5091924 (Ill. Cir. Ct. Oct. 29, 2009); Anonymous Female Patient v. Anonymous Physician, Anonymous Nurse and Anonymous Clinic, 2009 WL 6366089 (Va. Cir. Ct. Oct. 5, 2009); Sneeze v. State of Louisiana, No. 154,568, 2009 WL 6528661 (La. Dist. Ct. Jul. 27, 2009); Edmondson v. Oakwood Healthcare, No. 07-721460-NH, 2009 WL 3699101 (Mich. Cir. Ct. Jun. 4, 2009); Anonymous 31 Year Old Female v. Anonymous OB/GYN And Anonymous Hospital; 2009 WL 6366051 (Ohio Com. Pl. Jun. 1, 2009); Khaulipour v. St. Ann's Hospital, Kington, and Jiricko, No. 07-CV-001264, 2009 WL 3748727 (Ohio Com.Pl. May 18, 2009); Davis v. Jacobs, No. 06-CV-3409, 2009 WL 1740332 (N.C. Super. Ct. Jan. 16, 2009); Haden v. Kramer, Patrick County Family Practice, P.C. and R. J. Reynolds Patrick County Memorial Hospital, Inc., No. CL07149, 2008 WL 6400289 (Va. Cir. Ct. Oct. 16, 2008); De La Cruz vs. Purdom, No. VC048742, 2008 WL 7165022 (Cal. Super. Ct. Jun. 16, 2008), Young v. Levitt, No. 277895V, 2008 WL 4614405 (Md. Cir. Ct. Jun. 16, 2008); Hanner v. Mark Jones, No. 02-VS-041911, 2008 WL 4614375 (Ga. State Ct. May 19, 2008); Green vs. Sheila Miller, No. CV-2004-1038, 2008 WL 4847169 (Ala. Cir. Ct. Feb. 27, 2008) and Lynch v. St. Vincent Hosps. and Health Servs., No. 49C01-0503-CT-10724, 2008 WL 4276346 (Ind. Cir. Ct. Feb. 28, 2008). In two of the cases, the plaintiffs did not seek compensation from the hospital or medical facility, but rather pursued causes of action exclusively against the treating physicians. In four of the other ten cases, the medical facilities settled without the necessity of a lawsuit. Of the six remaining cases, two of them were settled after suit was filed but prior to trial. The final four cases resulted in two verdicts against hospitals as well as two verdicts in which the hospitals prevailed. Thus, from the sample of the twelve cases appearing in Westlaw's national jury verdict data base in 2008 and 2009, despite the fact that Medicare and private insurance companies have concluded that retained sponges are entirely preventable events which should not occur and should not be paid for, these cases are still being litigated and defended by hospitals in a negligence setting.

In New Jersey, hospital protocols are admissible and can constitute evidence of the prevailing standard of care applicable to medical providers. Rosenberg v. Tovorath, 352 N.J. Super. 385, 406 (App. Div. 2002). Additionally, practice guidelines published by professional medical organizations have also been deemed evidence of what accepted standards of medical care are. Perna v. Pirozzi, 92 N.J. 446, 463-464 (1983). Similarly, if a statute sets forth the appropriate standard of care that should be followed by a medical provider, that statute is admissible as standard of care evidence. DiGiovanni v. Pessel, 104 N.J. Super. 550, 562-563 (App. Div. 1969). Pronouncements from administrative agencies pertaining to issues of medical care have also been deemed admissible to establish governing standards of medical care. Swank v. Halivopoulos, 108 N.J. Super. 120, 126-127 (App. Div. 1969).

It will be interesting to see how the decision by Medicare and the insurance industry, to declare certain categories of events non-compensable because they should not occur in safe hospitals will impact future medical malpractice litigations. Although commentators have suggested that it is "wise and just" to categorize retained foreign objects following surgery as Never Events, these cases are still being defended and litigated. Given the evidentiary nature of professional practice guidelines and administrative regulations, it is reasonable to expect that public policy decisions regarding the compensability of Never Events and the standard of care in medical malpractice litigations will eventually converge.

$3.9 Million Settlement at Trial on Behalf of Two Ironworkers Injured at a Construction Site.

On October 11, 2006, two union ironworkers were severely injured while working at the Broad Street Station Restoration Project in Newark, New Jersey. The project was owned by New Jersey Transit, which had hired a general contractor, Conti Enterprises, Inc. of South Plainfield, New Jersey. Conti had full responsibility for managing the project, both by contract and safety regulations.

The ironworkers were working for a subcontractor on the project, Railroad Construction Co., Inc. of Paterson, New Jersey. On the date in question, they were operating a scissors manlift on a precast concrete platform, which would eventually be used by train passengers when the station was fully operational. At about 2:30 am, on the late shift, they were "bolting up" a canopy at the station, which would be used by train passengers for protection from the elements.

Suddenly, as they were traveling on the motorized scissors lift across the platform, one of the precast planks flipped onto the railroad tracks, catapulting the lift and both workers to the tracks below, causing traumatic bodily injuries. As it developed, the precast platform had not been properly secured by the general contractor, Conti, who had supervisory and contractual responsibility for doing so, and responsibility for alerting its subcontractors of any such dangers.

One ironworker sustained a lower back injury requiring surgical fusion with pedicle screw instrumentation, which required a bone graft at L5-S1. He also fractured his dominant right hand, which required two surgeries and pinning due to a malunion. He also had an open fracture of his left knee, and lost approximately one-third of his left patella, as a result of an open reduction and extensor mechanism repair, with associated scarring. A vocational/economic expert that his past and future net wage loss would amount to between $1.5 and $1.9 million.

The second ironworker sustained ten fractured ribs with painful chest wall syndrome, a concussion, traumatic structural damage in the right inner ear which required two surgeries and resulted in vestibular dysfunction with dizziness and loss of balance, and a profound hearing loss in the same ear, which required a hearing aid. Vocational testimony was presented that this disability forced him to give up a 22 year career as an ironworker and take other jobs in non-union positions that did not pay as well. A vocational expert asserted that he would lose between $1.35 and $1.6 million in past and future wages, by virtue of the physical limitations that prevented him from continuing as union steel worker.

John Ratkowitz and Amos Gern tried the case between November 3 and November 19, 2009. The first ironworker settled his case after one week of trial, on November 13, for $2.9 million. The claims of the second ironworker went to verdict on November 19, before a jury which returned a gross award of $494,138, reduced by 34% for comparative negligence. However, Starr Gern was able to negotiate a high-low settlement of $1,000,000 to $2,000,000 prior to the verdict. As a result, the second ironworker will receive a settlement of $1,000,000 in spite of the jury verdict, and all potential appeals were waived.

Settlement at trial of over $1.4 Million in Orthopedic Malpractice Case on behalf of Livingston, New Jersey resident following Jury Selection.

The plaintiff injured his left elbow when he fell after his scooter struck a hole in a residential street. The following day, he came under the care of the defendant, a pediatric orthopedic surgeon, who performed surgery. Following the surgery, the plaintiff was casted. Approximately six weeks later, when the cast was removed, the plaintiff had little range of motion in the left elbow joint. Within weeks, the joint completely froze. After visiting several orthopedic surgeons in New York City for second opinions, the plaintiff was advised that he required major reconstructive surgery because his left elbow fractures healed in a place higher than their original location.

Suit was filed against the defendant physician and two entities who had responsibilities related to maintaining the street where the accident occurred. The case was litigate for three years and it involved complex issues of causation and apportionment of responsibility.

The plaintiff's medical expert opined that the elbow fractures healed in the wrong position because they were pinned in the wrong place by the defendant during the surgery. The expert further opined that if the defendant had performed the surgery appropriately, the plaintiff would have been left with a functioning pain-free left elbow, with minimal loss of motion. The defendants argued that the fractures were pinned correctly, but drifted following the removal of the surgical pins six weeks later.

Despite undergoing multiple surgeries to correct the malaligned joint, the plaintiff is left with a 30% functioning left elbow.

Partners John Ratkowitz (Click Here for Bio) and Amos Gern settled the case following jury selection prior to opening arguments.

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