The Great Debate: Hospital Malpractice vs. Medical Malpractice

Introduction

How is it possible and who is at fault . . .
• When a patient in the Emergency Department repeatedly explains his health problem to an endless stream of white or rose colored coats throughout the hospital -- willingly submits to a barrage of physical, diagnostic and laboratory tests - only to learn weeks later that "they" missed the correct diagnosis. Was this event caused by hospital malpractice or medical malpractice?
• When almost 90,000 Americans (CDC, 2004) acquired infections in a hospital last year- and died from infections "caught" while inside what they believed to be the least likely place to get sick?
• When 98,000 -195,000 Americans die each year in our nation's hospitals (HealthGrades, 2004), 22 because of medical errors? And are we sure that they all were medical errors?
• When over 275 people have mistakenly undergone surgery on the wrong side, limb or organ since 1999?

According to Garry M. Walsh, health care policy and regulatory expert, the answer to both questions is hidden in the shadow cast by a larger question that looms overhead: "What is the difference between Health Care and Medical Care?"

Walsh clarifies the relationships between health care, medical care, hospital policies, medical staff bylaws and health care regulations - as they relate to litigation proceedings.

Discussion

These relationships are predicated upon a basic premise: health care and medical care are not the same. Health care is offered by a hospital to members of its community. It is a global entity partially supported by medical care provided by licensed physicians.
Consider the following:

• Separate regulations govern health and medical care, with only a few guidelines encompassing both
• Neither care can be successful without the other.
• While they are not technically the same -- they are never independent of each other. The patient is registered by the hospital - yet the independent physician is in charge of the patient's diagnosis and/or treatment.
• Both health and medical care must be guided by written policies and procedures crafted in accordance with health care regulations.
• A hospital's nurses and associated care partners deliver health care, accurately and safely in accordance with the orders of a physician.
• Independent practitioners, who are not hospital employees, order and deliver medical care.
• Rarely do physicians perform medical procedures, deliver medical care or commit unplanned errors alone.
• Unplanned health care errors often occur without the knowledge or involvement of a physician.
The confluence of multiple and frequently undefined chains of command and performance expectations within these relationships is the leading cause of hospital induced errors and allegations of hospital malpractice. For example, the non-physician caregiver is:
• Hired by the hospital, trained by the hospital, paid by the hospital, and guided by hospital policies and regulations.
• Expected to deliver care as prescribed by the independent physician, an individual to whom they do not report to as a matter of employment.

Ultimately, hospital malpractice can be attributed to this transient relationship.
• As for the "who is at fault" question, consider the circumstances resulting in the ED patient's missed diagnosis. The facts indicate that:
• The ED physician ordered the correct diagnostic tests, including X-rays and an EKG.
• Hospital staff performed these tests using exacting technique and producing perfect images.
• The ED physician performed a preliminary review of the images in the ED and informed the patient that the diagnostic image was normal.
• In accordance with policy, the ED physician sent the diagnostic films to the diagnostic expert, an experienced and licensed Radiologist, for an opinion of the diagnostic film.
• The Radiologist read the image and correctly determined that it was not normal.

Analysis

So how was the diagnosis missed? Ambiguous, conflicting, inconsistent hospital policy.
• Ambiguity: The policy failed to clarify whether the ED physician was to communicate his "normal" interpretation on the film...on a form...or in a record before sending the image to the radiologist. This would help the Radiologist to know the diagnosis the ED physician told the patient.
• Conflict: One policy stated that the x-ray "department" was to hand-carry the film and radiologist's final report (containing the correct diagnosis) to the ED. Another policy stated that the radiologist was to personally contact the ED physician and inform him/her of the correct findings on the image.
• Inconsistent: The policy provided multiple communication procedures to be performed during M-F day shift, evenings and weekends. A veritable potpourri of different staff members responsible for different procedures on different work shifts, multiple "drop boxes" in multiple departments, etc.
Physicians performed medical duties in accordance with their credentialed privileges, yet the patient was discharged from the ED without knowing the correct diagnostic findings of his exams. Neither he nor his private physician was informed, although the physician's name was clearly indicated on the admission face sheet.

This misdiagnosis can be attributed to the failure of hospital policy to create seamless and timely mechanisms ensuring communication of diagnostic findings to the ED physician. Once advised, the patient could seek care and treatment.

Conclusion

To avoid this type of error, hospital and medical staff leadership must define and approve operational guidelines that empower hospital staff to deliver patient-centric care.
In contrast to hospital malpractice, medical malpractice is defined as a physician's deviation from the applicable standard of care that a similar physician would exercise under the same circumstances.
The good news? Litigation serves as a wake-up call to both hospitals and practitioners, prompting interest in performance improvement measures that will improve the quality of health care in the 21st century.

References

Centers for Disease Control and Prevention. (2004). National Vital Statistics Report. 52(13):4. Retrieved from http://www.cdc.gov/nchs/nvss.htm

HealthGrades. (2004, July). Patient Safety in American Hospitals. Retrieved from http://www.healthgrades.com/media/english/pdf/HG_Patient_Safety_Study_Final.pdf

Kohn LT, Corrigan JM, Donaldson MS, eds. (1999). To Err Is Human: Building a Safer Health System. Washington: National Academy Press.

About The Author:

Garry Walsh has been creating, improving, implementing and subjecting health care policies to JCAHO scrutiny and approval since 1984. His ability to identify and interpret regulatory or policy non-compliance and clearly articulate the necessary changes has contributed to best practices in healthcare - and has alerted attorneys to relevant facts that surround and unfortunately result in patient errors and injuries.

As a health care policy and regulatory specialist, Walsh extends his expertise to the legal and healthcare community. His contributions clarify quality of care / service issues based on compliance with regulatory, policy and bylaw requirements that guide safe and effective hospitalizations.

Mr. Walsh can be reached at 1.800.749.7144 or 1.727.669.0800. For more information contact him at garrywalsh@hospitalpolicynet.com or visit http://www.hospitalpolicynet.com/expert.html.

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