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The cloud that surrounds…

by Nick Jacobs

Follow this scenario: a very well-trained, talented, experienced surgeon goes to the OR for a relatively straight forward surgery.  The surgery goes very well except that, unbeknownst to the surgeon, he has inadvertently and unknowingly nicked another organ with his surgical tools.  This of course results in a problem for the patient who,  as soon as it is apparent, returns to have the problem corrected.

Two months later the medical records are collected by the law firm that will surely pursue a lawsuit, a lawsuit that, although the patient was inconvenienced, did not result in permanent damage or death.  In this case the surgeon was totally committed to the patient and his family.  He had done everything possible to ensure that the patient’s care was appropriate, but, as a human being from the planet earth, he has proven that, like the rest of us, perfection 100% of the time is not normal.

Was the patient wronged?  Yes, of course he was.  Was the patient and his family inconvenienced?  Yes.  Was it a malicious act of incompetence?  No, it was not.  Was it a stupid mistake that resulted from negligence, not really.  It was just, as Forrest Gump once said,  that “S - - - happens.”

I’ve mentioned in another post that, 15 years ago, as an assistant administrator, I had once done a personal investigation of a law suit over a carpal tunnel surgery that had not gone well.  What I found was that, in the world of probability and statistics, if a surgeon performs 1000 of these surgeries, he or she is bound to have a problem at least once, and our physician had performed 995+ surgeries when this situation arose.

What is the answer?  The prudent person rule used to be the guiding principle for every questionable situation that we faced.  Did the person in charge do everything that was normal in that situation, everything that a prudent person could or would do?  If the answer was, yes, then the verdict was “not guilty.”

Liability insurance is eating us alive in this profession, and attorneys and physicians have to make a living, but, is there not a better way to resolve these issues?  In the past 10 years, we have spent over ten million dollars on liability insurance and have paid out such a low amount over those years that insurance companies actually compete for our business.

We attribute our low numbers of law suits to treating our patients with complete dignity, by being transparent, and by closely monitoring and helping our physicians to be the best that they can be.  Unfortunately, we all face the reality of “sue happy” patients and attorneys every day.

My point?  Can’t the prudent person rule once again become the norm as opposed to the exception?  We always hear that health care in the United States is not competitive.  Have we done the math on how much of those costs are generated from the lawsuits and insurances to protect us from the potential oblivion caused by those law suits?  Now, that would be an interesting analysis.

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