California Medical Malpractice Law Blog

A recent article published in the New York Times suggests that doctors could be immunized from malpractice liability if they were to follow clinical guidelines – the rationale being that if doctors used “evidence based guidelines” they could both improve quality of care and control costs.

Several problems exist with this theory. First, guidelines – despite their source may be unreliable. What works in one situation may not work in another. Complications may arise which require a physician to use his or her discretion to determine the best course of action. Following a guideline without modifying it based on the patient’s need may in itself be malpractice. Further, studies have shown that even when hospitals follow those guidelines – medical mistakes occur. The existence of “protocols” or “guidelines” does not prevent surgical errors. As recently reported in the New York Times, mistakes happen far too often, such as wrong site operations and the removal of a healthy organ rather than a diseased one.

Estimates suggest that the occurrence of mistakes has increased over the last several years. In fact, Dr. Stahel, director of orthopedics at Denver Health Medical Center states, “The data are shocking…[t]here are catastrophic events that are unacceptable. They have been termed a ‘never event’ – because they should never happen.”

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A recent case determined that a physician was negligent in failing to inform a patient about a test that would rule out a possible condition, even though he was not negligent in diagnosing him. The jury determined the physician violated Wisconsin’s informed consent law which provides that “[a]ny physician who treats a patient shall inform the patient about the availability of all alternate, viable medical modes of treatment and about the benefits of these treatments.”

Similarly, California Law sets forth specific guidelines regarding “informed consent.” Informed consent is more than just agreement to a particular treatment or procedure – it is your agreement to a proposed course of treatment based on receiving clear, understandable information about the treatment’s potential benefits and risk. You must be informed about all treatments available for your health condition, and the risks in receiving no treatment.

Although in some instances “informal consent” may be satisfactory, California law requires written consent for several specific procedures and treatments, including but not limited to, breast cancers, prostate cancer and research. Any discussion of a proposed course of treatment must take place before treatment is given.

In Jandre v. Physicians Insurance Co. of Wisconsin, a patient had had a stroke like episode and went to the hospital. At the ER, a physician’s initial diagnosis was that the patient had either had some sort stroke or Bell’s palsy. He subsequently ruled out ischemic stroke, but did not order a test to confirm this, and performed a CT scan instead. The patient was never informed that a different test could have been performed to rule out ischemic stroke. 11 days later, the patient suffered a massive stroke.

At trial, the jury awarded the plaintiff $1.85 million in damages plus post-verdict interest and attorneys’ fees based on a finding that the doctor was negligent in complying with the requirements of informed consent.

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A recent study has linked low Apgar scores in infants with the development of cerebral palsy by age 5. Apgar scores - taken shortly after birth - measure an infant’s heart rate, respiration, color, muscle tone, and reflex irritability. The scores provide information about both the baby’s cardio-respiratory system and neurological condition. Nigel Paneth, MD, MPH who wrote an editorial accompanying the study notes, “A low Apgar score, especially when it persists beyond the first minute of life, is … an indicator of central nervous system depression, so it’s not surprising that it can predict later neurological dysfunction.”

Often, infants delivered after suffering decreased oxygen and blood flow during the birthing process have low Apgar scores measured within minutes of the birth. In a recent case, our client developed cerebral palsy after suffering a birth trauma. She was delivered with Apgar scores of 2 at 1 minute and 3 at 5 minutes.

Commonly, birth trauma occurs when the flow of blood and oxygen is restricted during the birthing process. If the mother and infant are not receiving adequate oxygen, it is crucial that the attending physician or medical personnel act quickly to increase oxygen. A failure to correct the oxygen and blood flow may result in permanent damage or injury. When physicians and other hospital personnel fail to take adequate steps, they may be held liable for medical negligence.

The study concluded that although Apgar scores below 4 at five minutes post birth was associated with a higher likelihood of a diagnosis of cerebral palsy by age 5 for babies of all weights, it was especially strong in normal birthweight children.

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A recent study performed by California Watch determined that for-profit hospitals across the state are performing cesarean sections at higher rates than nonprofit hospitals. C-Section deliveries now account for 32% of all births, an increase of more than 50% since 1996. At for-profit hospitals this number is higher, with women at least 17 percent more likely to have a cesarean section at a for-profit hospital than at a nonprofit hospital from 2005 to 2007. In California in 2008, more than 180,000 C-sections were performed.

While doctors have often blamed “defensive medicine” as the reason behind the dramatic increase in C-sections, the Pacific Business Group concluded that the reason is simpler - C-sections help a hospital’s bottom line. In fact, a surgical birth can bring in twice the revenue of a vaginal delivery. In addition to profits, some hospitals perform more C-sections for non-medical reasons – including a doctor’s patience and staffing schedules.

These findings underscore anecdotal evidence from around that country that rather than “defensive medicine” and the fear of lawsuits, profit motives play a significant role in the tests ordered and services provided.

As stated by a childbirth advocate, “[t]his data is compelling and strongly suggests that there may be a provable connection between profit and the cesarean rate.” C-sections should only be used in cases of medical need. Although often c-sections are required in the case of difficult births to prevent significant and long-term damage to infants, C-sections present their own possibilities for harm and may unnecessarily place a patient at risk.

While hospitals may not explicitly push C-sections for profit, subtle incentives to increase efficiency may have the same effect.

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