Following Suit: Medical Malpractice and Medical “Never Events”

• In December 2012, Johns Hopkins released the shocking results of a cautious and rigorous analysis of national medical malpractice claims, believed to be the first of its kind. Among the findings, Johns Hopkins patient safety researchers estimated a surgeon in the United States leaves a foreign object such as a sponge or a towel inside a patient’s body after an operation 39 times a week, performs the wrong procedure on a patient 20 times a week and operates on the wrong body site 20 times a week.

• Called “never events,” the researchers further estimated that 80,000 such events occurred in US hospitals between 1999 and 2010. Worse, they believe their estimates are conservative.

• Published online in the journal Surgery, the findings quantify the national rate of “never events” occurrences for which there is universal professional agreement that they should never happen during surgery.

• “There are mistakes in health care that are not preventable. Infection rates will likely never get down to zero even if everyone does everything right, for example,” says study leader Marty Makary, M.D., M.P.H., an associate professor of surgery at the Johns Hopkins University School of Medicine. “But the events we’ve estimated are totally preventable. This study highlights that we are nowhere near where we should be and there’s a lot of work to be done.”

• For the study, Makary and his colleagues used the National Practitioner Data Bank (NPDB), a federal repository of medical malpractice claims, to identify malpractice judgments and out-of-court settlements related to retained-foreign-body (leaving a sponge or other object inside a patient), wrong-site, wrong-procedure and wrong-patient surgeries. They identified 9,744 paid malpractice judgments and claims over those 20 years, with payments totaling $1.3 billion. Death occurred in 6.6 percent of patients, permanent injury in 32.9 percent and temporary injury in 59.2 percent.

• Using published rates of surgical adverse events resulting in a malpractice claim, the researchers estimate that 4,044 surgical “never events” occur in the United States each year. The more serious the outcome, the more the patient (or his family) was paid.

• Makary says the NPDB is the best source of information about malpractice claims for “never events” because these are not the sort of claims for which frivolous lawsuits are filed or settlements made to avoid jury trials. “There’s good reason to believe these were all legitimate claims,” he says. “A claim of a sponge left behind, for example, can be proven by taking an X-ray.”

• The study also revealed that “never events” occurred most often among patients between the ages of 40 and 49, and surgeons in this same age group were responsible for more than one-third of the events, compared to 14.4 percent for surgeons over the age of 60. Sixty-two percent of the surgeons were cited in more than one separate malpractice report, and 12.4 percent were named in separate surgical “never events.”

Medical Malpractice Reporting

• By law, hospitals are required to report “never events” that result in a settlement or judgment to the NPDB. If anything, he says, his team’s estimates of “never events” are low because not all items left behind after surgery are discovered. Typically, they are found only when a patient experiences a complication after surgery and efforts are made to find out why, Makary says.

• Makary also noted that hospitals are supposed to voluntarily share “never events” information with the Joint Commission that assesses hospital safety and practice standards, but that doesn't always happen.

Medical Malpractice Lawsuits

• Medical malpractice occurs when the healthcare provider’s medical negligence causes undue injury to their patient. Filing a medical malpractice lawsuit, either from hospital malpractice or a doctor mistake, is complex and it is important that you engage experienced Medical Malpractice lawyers to determine whether your medical malpractice claim is valid.

Medical Negligence Lawsuits

• Medical negligence occurs when a doctor, dentist, nurse, surgeon or any other medical professional performs his or her job in a way that deviates from the accepted medical standard of care. Negligence becomes medical malpractice, and the basis of a medical malpractice lawsuit, when it results in undue injury to a patient. On the other hand, medical negligence does not always result in injury to the patient. Doctors must take the Hippocratic Oath, which is a promise that they will treat their patients to the best of their ability, and to the accepted medical standard of care, so as to do no harm to their patients. If this oath is broken, a medical professional is negligent.

Most negligence incidents that usually result in injury and a medical malpractice claim are the following:

• Misdiagnosis
• Failure to diagnose in time
• Surgical error
• Failure to follow up with treatment
• Failure to treat in a timely manner
• Anesthesia error
• Medication or prescription error

Establishing a Medical Malpractice Claim