Have I Been The Victim of Medical Malpractice?

As I have written on many occasions, if you are the victim of medical malpractice, don’t count on anyone informing you of that fact.  Despite the obligation of doctors and hospitals to be honest with their patients, the curtain of silence and secrecy descends when there has been malpractice.  In fact, the worse the injury to the patient, the more likely it is that the doctors, nurses and hospital administrators will do all they can to keep the patient in the dark about what happened.

Secrecy - Wikipedia

Medical malpractice is frighteningly common.  In my experience, you cannot be in a modern hospital for three days without someone making some sort of mistake involving your care.  Thank goodness that on most of these occasions no serious harm occurs to the patient but these incidents add up and eventually someone is really hurt – maybe even killed.  If that happens, it is rare that anyone admits a mistake was made.  Patients have to figure it out on their own.

Nurses are required to submit reports when a mistake occurs.  One basis for requiring a report is to alert the hospital to the presence of the mistake so that corrections can be made to prevent similar occurrences in the future.  A second basis is to alert risk management.  Risk management may approach the patient or the patient’s family and try to resolve any claim or may just try to keep the patient from finding out about the mistake.

As a lawyer representing injured patients, I know about this requirement and routinely ask for a copy of the report.  Just as routinely, I am informed that the report is covered by the hospital’s peer review process, which is itself protected from disclosure by statute.  The statutory protection is ostensibly to encourage everyone to be frank about what happened so corrections can be made.  In practice, the hospital claims everything is peer review so as to reduce the likelihood the patient will be able to successfully prove her case.  Let’s face it.  Hospitals are in business to make money and paying patients fair value when they are injured by the hospital’s nurses or other employees is no way to pad the hospital’s bottom line.

Doctors have similar incentives to keep patients in the dark when they have made a mistake.  Doctor mistakes can result in doctors losing their privileges at the hospital.  In order to practice at a hospital, a doctor must apply for privileges and demonstrate that she or he is competent to do the procedures they want to do at the hospital.  If the doctor makes a mistake at the hospital, a committee may investigate and take away the doctor’s privileges.

Even if the mistake does not occur at the hospital, the doctor still has a strong motivation to keep it a secret.  Mistakes get reported to the Arizona Medical Board, which can investigate the doctor and the alleged mistake.  The Board’s actions can range anywhere from doing nothing (the most common action, thank you very much) to taking away the doctor’s license to practice medicine in the state of Arizona.  There are also a number of in between disciplines involving restrictions on the doctor’s practice or requiring additional education by the doctor to prevent the mistake from happening again.

If you or a family member find yourself with an unexpected injury, you need to start asking questions.  Don’t expect to get honest answers but at least begin asking questions.

Ask for copies of your medical records so you can see what the doctors and nurses claim happened.  You are entitled to a copy of your records.  Again, don’t expect much in the way of honest reporting.  The records may say what happened but they are highly unlikely to contain admissions that mistakes were made.  For example, the operative note may say that suddenly there was “brisk bleeding,” which the surgeon promptly addressed.  The surgeon does not explain that the brisk bleeding occurred when she or he nicked an artery by mistake.

If, after reviewing your records and asking questions, you still have questions about what happened, go see an experienced malpractice lawyer.  She or he may not be able to answer your questions but that is a good place to start after you have finished talking to the health care providers.

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