When you go into the hospital for surgery or some other procedure, you may fear that something will go wrong—but you don’t really expect it to. If you do have an “unexpected outcome,” you may be shocked, bewildered, angry, and afraid. Fortunately, the hospital is on the ball. They’ve sent a patient advocate to find out how you are and listen to your concerns. But is that really for your benefit, or theirs?
People don’t like being injured, of course. But it turns out what they like even less is feeling like they and their injury don't matter to the people who caused the harm. When they feel like their grievances are ignored, patients may be more likely to seek redress in a way that is sure to get a hospital’s attention: a lawsuit for medical malpractice. Numerous studies have shown that patients who receive acknowledgement are less likely to sue their doctor or hospital.
Which brings us back to the patient advocate. Ostensibly, the patient advocate is a person who advocates for you and your family while you are in the hospital. But remember that the patient advocate is still an employee of the hospital; even a patient advocate who truly believes in helping patients will be mindful of who signs their paycheck. You should be, too.
In some cases, the patient advocate is even an employee of the hospital’s “risk management” department, the insurance arm of the hospital. This is, of course, a huge conflict of interest. How can a patient advocate effectively stand up for a severely injured patient’s rights if their job is also to help expose the hospital to risk of a lawsuit or act as an direct informational source for the hospital’s risk management department?
A patient advocate may help a patient and their family feel acknowledged and heard, and as if the hospital takes their concerns seriously. Often, though, those concerns are not addressed in a way that is meaningful to the patient. In the worst case scenario, a patient advocate gains the patient’s trust and then uses information learned from the patient to help the hospital evade liability for medical malpractice.
Peer review is a process in which a hospital’s affiliated doctors evaluate the quality of care their colleagues offer to patients. Information gained from speaking with the patient may be featured in the process. By discussing cases with unexpected outcomes or “complications”, physicians have the opportunity to identify what went wrong, and plan to improve care for other patients in the future. In a given case, the peer review committee discusses the facts of a case and concludes whether the physician acted properly, or should have done something differently in the treatment process.
This is, of course, an excellent goal; doctors should learn not only from their own mistakes, but from those of their colleagues. Peer review can be a good mechanism for maximizing learning and minimizing future mistakes. But that value comes at a cost.
In order to allow doctors to speak candidly in peer review, the law of most states establishes a peer review “privilege” that makes the process confidential. Doctors speak openly because they know, as a result of this privilege, even the harshest criticism of a colleague will not end up being used against the defendant in a medical malpractice action.
That’s right: peer review proceedings, and the records and reports of those proceedings, are privileged under the laws of most states. What generally happens is that the bylaws of a hospital have formalized a peer review procedure, including creating documentation of the peer review process. So long as statements were made or records created as a required part of peer review, they cannot be used against the doctor or hospital in a medical malpractice lawsuit. In essence, the hospital may be “laundering” information through the peer review committee to avoid having to disclose it in a lawsuit.
What does all of this mean to you, if you or a loved one have been injured by what you think might be medical malpractice? In a nutshell, be on your guard. If a patient advocate or a risk management employee comes to speak with you, or if you are told that a peer review committee is meeting to discuss your case, that doesn’t mean the hospital is preparing to admit wrongdoing. On the contrary, it may mean that they are circling the wagons.
By the same token, be wary of a quick settlement offer by the hospital. It may be very tempting to accept financial compensation and to just have things over with. But the reality is that hospitals and insurers do not offer settlements out of the goodness of their hearts. If they offer a settlement unprompted, it is a virtual guarantee that they are doing so to avoid worse liability from a potential lawsuit.
So what should you do? Consider that anything that you say to the hospital may become part of their defense in a future lawsuit. Remember that even an “advocate” is not necessarily on your side. And remember that it costs you nothing to get the opinion of an experienced medical malpractice attorney. When the hospital wants to talk to you about a mistake, the wisest response is often, “Let me speak to my attorney first.”
If you are concerned that you or a loved one may have been a victim of malpractice, we invite you to contact Huegli Fraser to discuss your situation.
The information in this blog post is provided for informational purposes only and is not intended to be legal advice. You should not make a decision whether or not to contact a qualified medical malpractice attorney based upon the information in this blog post. No attorney-client relationship is formed nor should any such relationship be implied. If you require legal advice, please consult with a competent medical malpractice attorney licensed to practice in your jurisdiction.
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