How to Protect Yourself from Medical Malpractice

How To Protect Yourself From Medical Malpractice
The average American stands a one in three hundred chance of dying due to a medical error and more than 100,000 Americans die each year due to medical malpractice. Medical malpractice is an equal opportunity killer. By all accounts, it strikes without regard for age, race, income or type of health insurance.

So how then can you protect yourself and your family from medical malpractice? The Boston, MA medical malpractice lawyers at The Law Office of Alan H. Crede, P.C. have formulated these five tips for reducing your risk.

When your doctor recommends a course of treatment to you, you probably assume that there are research studies showing the recommended treatment to be beneficial for a patient in your situation. But such a common sense belief is mistaken. The clinical practice of medicine is largely based upon guesswork and assumptions, rather than empirical data.

There are evidence-based guidelines out there that are supposed to inform doctors’ decisions about what kind of treatment to pursue. These guidelines represent the medical profession’s best judgment about when the scientific evidence backs a treatment or procedure. You can access the guidelines through the Department of Health and Human Services’ National Guidelines Clearinghouse.

But many doctors depart from or ignore the guidelines. They think they know better than the collective wisdom of their colleagues or else they think that, despite the lack of scientific study, a given treatment will in fact benefit you. The frequency with which doctors practice medicine outside of the guidelines is surprising. According to a 2003 study published in The New England Journal of Medicine, American doctors follow evidence-based guidelines only 54 percent of the time.3 Some evidence suggests that compliance with the guidelines is worst in certain areas of heart surgery (balloon angioplasty, cardiac defibrillators, and stents) and in some spinal surgeries.2

Many surgeries or procedures are elective, meaning that it is up to the patient to decide whether she wants to undergo the surgery. For example, maybe a surgery will improve a patient’s back, but maybe a patient will see no improvement at all. The decision whether to proceed with the surgery is really a matter of cost-benefit analysis: Is it likely that the expected benefits of the surgery outweigh the possible risks (e.g., the possibility of the back pain worsening after the surgery, the possibility of dying under anesthesia, the possibility of being injured due to medical malpractice)?

It is difficult for a patient to do a meaningful cost-benefit analysis when she is uninformed about the likelihood of these various possibilities. The patient needs to be able to quantify the risk of a surgery or procedure in order to determine whether the risk is justified in her mind.

The professional literature can help you quantify the risks and benefits associated with a surgery or procedure. Work with your doctor to help access the professional literature and quantify the risks and rewards involved. Or use or PubMed to research risk and reward on your own.

As a helpful starting point for your research, one well-known article ranked the surgical procedures in which you are most likely to be the victim of medical malpractice.3 They are as follows (the percentages represent the percentage of surgeries in which the patient is the victim of preventable medical error):

Leg blood-vessel bypass graft 11.0%
Abdominal aortic aneurysm repair 8.1%
Colon resection 5.9%
Open-heart surgery (bypass and valve replacement) 4.7%
Transurethral resection of bladder or prostate cancer 3.9%
Gall-bladder removal 3.0%
Uterus removal 2.8%
Knee/hip replacement 2.6%

A quick-and-dirty method of obtaining the same result might be to speak to a dozen people who’ve had the same surgery as you (either online or in person) and to see what their experiences have been.

Whenever a new drug or treatment debuts, it is inevitably hyped as a cure all. Billions of dollars can go into marketing a new drug or medical device. Normally a new drug or medical device will have been subjected to short-term clinical trials before making it to market (although not always; see the FDA’s 510(k) process), but no long-term studies are required prior to marketing a drug or device to the public.

Each year the US Food and Drug Administration approves about twenty-five new drugs for prescription use and a significant number of those will eventually be removed the market or have “black box warnings” added to their labels. The upshot of this is that, in many cases, you should talk with your doctor about substituting drugs and therapies with a long track record of success for the cutting-edge pill the drug companies are trying to get you to take.

Most people will switch doctors several times over a lifetime, either because they move, because their doctor retires, or for other reasons. In switching between doctors, patients often wind up with a very incomplete medical history.

Very often a primary care doctor will lack the records that might establish a baseline for your health. Or one specialist will not have records that another does.

Make sure everybody’s on the same page about your patient history. You can obtain a copy of your medical records simply by writing your doctor and requesting a copy. Under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), doctors and hospitals are required to furnish you with an entire copy of your medical records so long as you agree to pay for reasonable copying expenses. If you are a patient of a Veteran’s Administration hospital, obtaining your medical records is simple using the VA’s VistA software program.

When possible, you should take a friend or spouse along to your doctor’s visit. Having someone else there with you can help prevent misinterpretation of what the doctor is saying and help avoid ambiguities. A friend or spouse might also think of a question for the doctor that you would only think of later. For many reasons, your time with a doctor is short. Bringing along a friend or spouse essentially helps you to double up on that time by enabling you to recall more information, asks more questions and receive more clarification.

1McGlynn E, Asch S, Adams J, Keesey J, Hicks, J, DeCristofaro A, Kerr E, “The Quality of Health Care Delivered to Adults in the United States“. N Engl J Med 348:2635-2645 (2003).
2Chan P, Patel M, Klein L, Krone R, Dehmer G, Kennedy K, Nallamothu B, Weaver D, Masoudi F, Rumsfeld J, Brindis R, Spertus J, “Appropriateness of Percutaneous Coronary Intervention“. JAMA 306(1):53-61 (2011).
3Gawande AA, Thomas EJ, Zinner MJ, Brennan TA, “The Incidence and Nature of Surgical Adverse Events in Colorado and Utah in 1992“. Surgery 126(1):66-75 (July 1999).