BOOK REVIEW: Hospital Negligence: Legal and Administrative Issues by Arthur S. Shorr, FACHE

Edith Rodriguez entered Martin Luther King Hospital in Los Angeles on May 8, 2007 and was misdiagnosed as suffering from gallstones.  She returned the next day complaining of severe abdominal pain. The triage nurse refused to assess and prioritize her condition, and so Edith could not be placed in line to be examined by a physician.

In an effort at fairness, this could be understandable, don’t you think?  Lots of people use the ER for non-emergency purposes, because they are lonely, hypochondriacs, have mental issues;  or they use the ER as a substitute for seeing a doctor.

But not this time.  The hospital’s surveillance camera shows Edith lying on the floor “writhing and screaming in pain while the janitor mopped around her.” Other patients in the ER asked the nurse to help Edith Rodriguez, but these requests were ignored.  Someone called the police, but even they could not persuade the nurse to triage Mrs. Rodriguez, so the police decided to take her to a police facility where she could be treated.  Unfortunately before that was possible, Edith Rodriguez suffered a cardiac arrest secondary to a perforated colon, and died.

This happened less than five years ago, here in America.  The county settled with Edith’s family for $3 million.  Would you call this a malpractice litigation problem, or a malpractice problem? Read more..

My question is not what is the magic dollar amount of appropriate compensation for Edith’s family, but how can something this barbaric happen?  Can refusing treatment to a patient writhing on the floor in pain be considered just a lapse in judgment?   Can healthcare practitioners become this fatigued, indifferent, or callous to their power of life and death over a suffering patient?  The obvious answer is yes, and not infrequently.  Edith Rodriguez’ case can be found on page 290 of Arthur Shorr’s book Hospital Negligence Legal and Administrative Issues.

If you are interested in a movie developed around this type of flagrant and catastrophic medical malfeasance, watch The Confession, starring Alec Baldwin, Amy Irving, and Ben Kingsley.  If you are interested in an exhaustive (but not exhausting) treatment of current patient care in American hospitals, and the efforts of the courts to establish accountability, read Arthur Shorr’s book.

As those of you who have been faithfully following the thread of this blog over the last few months know, I have been heavily engaged in a research project on the subject of medical malpractice.  Not, mind you, the subject of medical malpractice litigation, but the subject of malpractice itself.  The objective has been to get past the defensiveness, angry bombast, propagandizing, and frequent intellectual dishonesty of vested interests, and discover what is really going on in the arcane, veiled world of healthcare in America.  Admittedly there is a bias to what I report, and that bias is that I am very pro-patient.   I have been a patient  many times, and as I approach the geriatric years, I want to know what to expect, I want to better understand the mysterious inner workings of the healthcare universe and how to survive in it.  Statistically, all of us will spend more time in the hospital during the last year of our life than the total of all our prior hospitalizations combined.  This is even true of doctors and nurses.  We are all going to die, and about half  of us are going to die in a hospital.  Would you like to get better acquainted with the place now, while you are well?  Then take this journey with me through Arthur Shorr’s book.

The 5% Who Maim and Kill

If you have been reading my previous book reviews, you cannot possibly have any doubt that to enter the doors of a hospital in calm confidence that your best interests will be tended to competently and professionally is not only naïve, but to play the part of the fool.  No one disputes the Institute of Medicine’s conclusion that between 100,000-200,000 people are killed in hospitals every year due to preventable error, carelessness, negligence, whatever you want to call it.  What most people don’t know, as Arthur Shorr, the author of Hospital Negligence Legal and Administrative Issues reminds us, is that 5% of all physicians create 54% of all malpractice litigation.  (See National Practitioners Data Bank, 2001 Annual Report: www.npdb-hipdb.com/pubs/stats.2001HIPDB_Annual_Report.pdf )  The National Practitioner’s Data Bank is the central repository for all major physician disciplinary actions, loss of privileges, etc.

You say you didn’t know that such a fount of valuable information existed?    Ever wondered what your doctor’s  cumulative professional history looks like? Would you be interested in knowing if s/he made the honor roll of healthcare practitioners whose  competence is open to question?  Now that you are educating yourself about the very real perils of healthcare  in America that one day could conceivably impact your life or prematurely end it, would you like to take a peek at this repository of reportable events created by the federal HCQIA law?  Well, so sorry, but the same law says you and I  aren’t allowed to see it.  In what is apparently a flagrant and obsequious concession to physician and hospital political lobbies, we, the patient population, are not permitted to identify and avoid the 5%ers.  In the healthcare game, the patient is the patsy, the powerless constituent who continues to have sublime faith that the system is going to take care of him (us).

Clearly, in actual malpractice litigation is the part of the malpractice iceberg that shows above the surface; the vast majority of mistakes go undiscovered, are concealed from patients and their families, or for various reasons never make it to the courtroom.

Where and how do these 5% hide out?  What (and why) hospitals permit them to admit and treat patients within their institutions?  How are doctors screened, or in the argot of the medical world, credentialed and privileged?  How reliable and trustworthy a process is this?  Why is the profession so notoriously lax in disciplining its own members?  When you enter a hospital, it all appears vaguely chaotic, with all these people in uniform running here and there.  Who are they, what are they doing, and who’s in charge here?  How do you know if these people are doing what they are supposed to be doing, especially when it’s your turn?  Mistakes and even negligence are a frequent part of life, in every profession and occupation.  Mistakes and negligence kill 50,000 on the roads of America every year, yet we don’t bat an eye.  But when an accident happens, there is an investigation, there is accountability, there are consequences.  Depending on the circumstances and intent, when a driver kills someone, it may be called accidental death, or involuntary manslaughter, or vehicular homicide.  What happens when a doctor kills someone?  What is it called?  Oops?  (And dispose of the evidence?)

In other words, the issue is medical malpractice or institutional negligence  or both, and this does not mean mistakes, which are inevitable to all aspects of the human experience.  It is important for readers to appreciate that outcomes are not guaranteed, but this should not be confused with medical malpractice or institutional negligence. Malpractice in Shorr’s book means administrative negligence; in other words, outcomes (often catastrophic) that with customary professional care should not have happened.  And so Mr. Shorr wrote a 600+ page tome that takes us on a guided tour into the bowels of the hospital organization, explaining the interrelationships between all levels of the institution, including the responsibilities, conflicts, egos, frustrations, and humanity of all the players, from the governing body to the newest certified nursing assistant.  He elucidates the processes, regulations, policies, and system redundancies that must, or should, be in place to prevent disaster, and what happens when they fail.

Cooking Patients

Considering his subject material and the human carnage involved, the author is remarkably sanguine as he calmly marches through the records and elucidates what actions can and should be taken to improve patient safety.  Take for example his treatment of surgical fires.  I had never even heard of surgical fires, and perhaps, dear reader, you haven’t either.  These occur when something combustible, such as oxygen catches fire on, or even worse, inside the patient on the operating table.  The Joint Commission, the organization that develops minimum safety oriented community standards for hospitals issued a Sentinel event bulletin alerting hospitals to the issue of operating room fires.  Arthur Shorr lists the nine inexpensive  measures recommended by the Joint Commission to take so that a surgical fire never occurs.  Sometimes the fires occur because ointments or gels on the patients face have not fully dried yet, and when an electric tool is used to cauterize, it ignites the ointment.  The solution is very simple; either wait until the ointment thoroughly dries, or make sure you wipe excess ointment that may be hidden in the folds of an obese patient’s skin before you proceed.  Surgeons do not operate alone in the operating room.  They have nurses and assistants and anesthesiologists working with them.  How could all of these people not think of taking simple and necessary precautions to prevent a disaster?  Too often the answer is, they all defer to the surgeon, the commander-in-chief in the operating room.

When a surgical fire occurs, it is usually around the face and neck, and often part of the patient’s face can get severely burned, on the inside as well, including the mouth, airways, esophagus, etc.  The treatment of these burns often causes infections and other complications, leading sometimes to the death of the patient, and most certainly to grotesque scarring.  Imagine going into what you expect to be a routine surgery, and, as reported by MSNBC,  waking up in recovery with ‘your chin gone, your nose deformed, your mouth virtually melted—so damaged that after a dozen reconstructive surgeries, you still have difficulty eating, drinking, and breathing?’

If you are having difficulty imagining this, look at this.

How Many Does It Take?

Now that you’ve looked at some pictures, maybe, like me, you have a problem with comments such as from Karen Weiss, M.D., M.P.H., program director of the Safe Use Initiative in FDA’s Center for Drug Evaluation and Research, that ‘these fires are small in number compared to the millions of surgical procedures performed each year.’  How many is this small number of surgical burn victims?  The same article estimates 550-650 each year!  Entirely preventable except  that the others in the operating room are too intimidated by the surgeon to speak up when the situation is unsafe!  We know this number must be understated because there are many more surgical fires that go unreported or are covered over to preclude malpractice litigation.  As Arthur Shorr reflects, “Both plaintiff and defense attorneys should recognize that the theory of the surgeon as “captain of the ship” has given way to the concept of the surgical team in which everyone  in the operating room has a duty to maximize the patient’s safety.”

The sad plight of children shot and killed in our schools and malls recently has dominated the attention of the media.  So how is it that five or six hundred patients have been burned on the operating table, and it doesn’t even make the news?  And since this conservative estimate of the number of victims is so small, according to Weiss of the FDA, how many victims do there have to be before it deserves comparable outrage?  The MSNBC article quoted above downplays the severity of the situation, in my opinion, by noting that 500 incidents out of 50 million surgeries per year is not that big a deal (unless it’s you, or a member of your family, of course).  Well, let’s see, 89 million passengers fly out of Atlanta airport every year, so I guess if five or six hundred a year catch fire, are disfigured or killed getting off the ground, that’s not such a big deal, right?

Who Authorized this Doctor to Practice?

Author Shorr divides his time equally between the top and the bottom of the hospital hierarchy, but always his focus is on patient safety.  It is obvious he knows from 40+ years of personal experience where the land mines are.  He gives a superb and constructive critique of the credentialing process, which is how hospital governing boards decide whether to grant hospital privileges to a physician after evaluating his performance record.  He points out the turf wars and ego conflicts that can (and do) occur between the administrator and the powerful, leading figures in the medical hierarchy of the hospital.  The CEO, in the incredibly delicate position of having  nondelegable accountability for whatever occurs in the institution,  also knows that if and when he challenges or countermands the medical leadership, those who recommend clinical practice privileges to the governing body, he places himself at the risk of jeopardizing his own employment and career.  How do you exercise principled leadership in such a situation?  Shorr points out the powerful personal incentives for administrators to avoid confrontation with the medical staff leadership and stick to issues with less personal risks such as the politics of  hospital systems, finance, equipment purchases, etc. and not to push issues that could create unpleasant blowback from the medical hierarchy.  Everyone likes to stay employed.

The Administrator’s Catch-22

The catch-22 for the CEO/administrator is that when malpractice occurs in his hospital by a member of the medical staff, the buck stops with the administrator if the credentialing process was compromised when that negligent physician was screened and accepted.  In other words, if a doctor’s professional history gives reason to doubt his competency and he is credentialed and granted practice privileges at the hospital anyway and then later is found guilty of malpractice, the CEO/administrator and the governing body have a serious problem.  The hospital may likely share liability for negligent credentialing and privilege granting.

Shorr focuses on not only ineffective credentialing and weak peer reviews, but he turns his laser on the opposite: sham peer review; the removal from the medical staff of otherwise qualified clinicians for political or economic reasons.  The most dramatic example might be of powerful physicians basically ganging up on a whistle blower in their midst and maliciously driving him/her out of the hospital:  “One of the most profound unintended consequences of HCQIA (a 1986 law designed to improve accountability of physicians)  is the emergence of “sham peer review,” the willful misapplication of HCQIA’s intended  protections refocused to persecute, punish, and otherwise penalize competent physicians.  This cynical and abusive practice is often employed by politically powerful physicians or groups of physicians to advance their own economic, social, or political agendas in the hospital setting.”  It’s hardly a quantum intellectual leap to go from understanding the existence of sham peer review to a profession that tightly closes ranks around its members and resists efforts at transparency, a threat to their control.

Registered Nurses as the Patient’s Advocate

My favorite part of Hospital Negligence is the section on nursing.  Nurses spend by far the most time in actual patient contact, and it is the nurses who generally define a patient’s experience during a hospital stay.  It is obvious that author Shorr has a special empathy for the nursing constituency.  He emphasizes their unique responsibility as patient advocate:  “Registered nurses are the full-time guardians of the patient, and function as patient advocates as defined by the American Nurses Association (ANA) Code of Ethics and most state licensure laws.  Their role as patient advocates should be recognized in their job descriptions as well.  It is understood that although the nurse will principally discharge physician orders consistent with their professional assessment of patients, professional nurses are also expected to utilize their independent  professional assessment and evaluation skills, and communicate relevant observations and concerns to the physician in a timely manner.”

The ANA Code of Ethics, in application, means that a registered nurse will advocate for the patient, even in the face of incompetent or compromised physician oversight.  This puts the registered nurse in the same precarious employment position as the hospital administrator.  If she advocates for the patient, she may open herself up to retaliation from those higher up on the food chain, but if her failure to act courageously results in harm to the patient, she exposes her hospital to liability and probably the termination of her employment.  I have to wonder how many of either hospital administrators or nurses would pass that test?  In my experience, survival instincts trump all other considerations, including violations of the training manual.  As Shorr points out “The administration must continuously reinforce senior management’s commitment to support nursing advocacy”—but how many of them will do that in actual practice?  To his credit, Shorr gives practical examples of how a nurse can question without seeming to challenge authority.

Following a sub-theme of protecting the patients from the very human natures of their caretakers, Shorr gives examples of patient chart notes appropriately done, but no one reads them, and hospital or nursing home records that are falsified by nursing staff, attesting to their having timely turned their patients to prevent pressure sores, when the patient in question had been transferred or even died, or the individual  who falsified the record was not even at work on the days or shifts indicated on the turning logs.  This would be almost funny were it not for the fact that patients needlessly die because of such negligence.  Shorr says:  “Although turning the patients is highly effective, the unreliability of nursing assistants coupled with inconsistent supervisory follow up can place patients at risk.”

Shorr maintains that while physician negligence is by far the most expensive per case in human suffering, death, and malpractice litigation, the mistakes of nurses and other caregiving hospital staff are greater in number, but generally cost far less per incident.

The New Healthcare–a Different Paradigm

The lesson for the patient:  “Until the 1970s the relationship between doctors and patients was highly paternalistic, based upon the premise that “the doctor knows best.”  Today, the concept of patient rights is based on the principle that patients are self-reliant and should exercise the greatest degree of influence possible on the decisions that impact their health and well-being.  Thus, this principle has re-defined the relationship between the patient and the caregivers.  It is the hospital’s responsibility to ensure that this dynamic is respected.”

To which I would add that it is our individual responsibility as patients to insist on this, or find better  caretakers as soon as the opportunity presents itself.  The paternalistic (and sometimes narcissistic) physician model who dictates rather than invites patient participation is being replaced by a new patient activism aided and abetted by the Information Age.  Our becoming a more-aware consumer of healthcare will raise the bar for our providers, as they realize they have a better educated, more observant and involved patient.  Some of them will become better doctors because of us.  That’s good for everybody.

The 5-percenters?  I can’t help wondering, of the five or six hundred people who are victims of surgical fires each year, what happens to the sloppy surgeons who wreck their lives or kill them? Presumably we only know about these five or six hundred cases each year because the doctors are  sued.  Are they still practicing medicine?  Was there disciplinary action?  Even a slap on the wrist?  How would we even know?  I have to ask you, my reader, if you or one of your children needed surgery, and you saw pictures like these of what your intended surgeon had done to one of his/her previous patients, would it influence your decision to have him operate on you or your child?  Would you be inclined to blow it off with an “Aw shucks, everybody has a bad day?  He deserves another chance.”  How would you feel if you knew, not only that he withheld this information from you, but that his entire profession conspired to prevent it from becoming known in order to protect him, a member of the Hippocratic brotherhood?  With improved and accessible performance metrics and much greater transparency,  dangerous physicians should be encouraged to  find something more suitable to do for a living.

Who Should Read This Book?

Who should read this book?  I did, but I am researching the subject.  But I found myself enjoying it, and I learned a lot.  I feel slightly less like a potential victim, and slightly more empowered knowing how a hospital is organized, the relationships, the conflicts, the dangers, the pressure points.  Just as with prior books where I have learned to pay attention to such things as whether or not my doctors or nurses wash their hands (most don’t), Shorr’s book has helped me learn what I have a right to expect in the hospital, and when I have the right to object or insist, strenuously if necessary.  This book has contributed to my self-confidence when I am in a very intimidating hospital environment where you are vulnerable both mentally and physically, are unceremoniously pushed, pulled, and poked, and I am less inclined to passivity the more I learn.  I think it will be a little bit harder for a careless provider to bluff or blast their way past me.

Besides everybody like me, patients or might-be-patients-someday, who else should read this book?  The first thing that comes to mind is every single Congressman and all their staff assistants.  It is the staff assistants who write healthcare legislation, and no one should be permitted to do that without reading this book first.  If this book has an ideology, it is patient safety.  If the staff aides are only concerned about satisfying their lobbyist campaign donors, they might conclude that this book would be of little practical value to them.  This, in my opinion, would be a mistake.  Health, and healthcare, are the great equalizers of us all.  Sooner or later, with very few exceptions, we are all going to need a hospital, and no matter which side of the ideological aisle we hail from, when that day comes, we are going to be better prepared if we have read Arthur Shorr’s book.  There should be a copy of this book in every Congressional office.

Graduate students enrolled or majoring in hospital administration should read this book, and learn about hospital accountability from someone who knows it from the inside out.

Key hospital administrative, nursing, and physician staffs should read this as a reminder of why they chose their respective professions to begin with, and who have a greater interest in raising the bar of their profession than they do in evading the plaintiff’s bar.  By paying more attention to the former, they can minimize danger from the latter.

Defense attorneys:  This book creates a clear picture of the standards and expectations against which your client will be measured.

Plaintiff attorneys who screen potential clients, to appreciate where the community standards and the bar of accountability  are set in order to assess whether the client’s situation is actually worthy of legal pursuit. Shorr makes it clear that there are no guarantees for outcomes in the practice of medicine or patient care services.  As such, the author makes it clear that less than desirable outcomes aren’t necessarily worthy of lawsuit, and draws a clear line between medical and ministered cases of negligence and bad outcomes.

Anyone involved in the education of future generations of hospital administrators should have this book as a resource.

Patient safety advocates of every stripe need to read this book.  Hospital Negligence Legal and Administrative Issues is an invaluable  desktop encyclopedia of patient safety case law.

Why am I promoting Arthur Shorr’s book?  Because nothing in this world moves unless someone or something is pushing it.  If we want our hospitals to become safer places, we have to participate at some level.  This book is a great combination of academic excellence without being afflicted with ivory tower isolation.  It is reality-based, not rhetoric.  This man obviously didn’t spend his many years of hospital administration hiding in some corner office.  He knows hospitals where it really counts most–at the intersection of the hospital and the patient.

You can reach the author through his website here.