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Your Health And The Law
How To Avoid Being A Victim Of Malpractice

Each year, in a city of a million people, 27 patients will be killed by negligence committed in a hospital setting. Three will be permanently and totally disabled, and 100 more will suffer some other injury. And of course, many, many more receive ineffective care - that which doesn't produce harm, but doesn't help either. Will you, or somebody you love, be the next victim of medical negligence?

It is not possible to completely avoid medical malpractice. Some occurs randomly, but most is the result of systematic carelessness, incompetence, or indifference. While you cannot eliminate the risk entirely, you can avoid high-risk practitioners.

There are two strategies that will lower your risk: know your doctor, and know your illness. The former is more difficult than the latter, because reliable information about doctors is hard to get. There is a national database of claims and disciplinary action taken against doctors, but it is confidential by law. County medical societies have referral services, but they make little or no effort to screen out bad doctors and they won't tell you what they know about a doctor as long as the doctor still has a license.

You can ask your friends if they know anything about your doctor, but unless your friends know quite a bit about medicine, the answers you get will be heavily weighted towards bedside manner and mostly irrelevant when it comes to evaluating the doctor's skill, judgment and commitment.

You can ask a nurse, preferably one who works for a hospital rather than one who works for a doctor's office. Most of them know what goes on behind the scenes and, if they are promised confidentiality, may tell you what they know.

The second strategy is to know your illness. Ask your doctor for any pamphlets or other patient information he or she may have available. If your doctor doesn't have anything available (possibly a bad sign), can he or she tell you where to get such information? Go to the public library. Read about your condition and the treatment your doctor is suggesting. You will probably need to buy an inexpensive medical dictionary to help you in your research.

While you are at the library, look up national organizations (American Heart Association, American Cancer Society, etc.) that are concerned with your illness. (If you have obtained any pamphlets about your illness, look for the names of the organizations that published them.) Write or call these organizations and ask them for information about your disease and any specific treatments you are concerned about.

If you feel comfortable with medical terminology, you may try a medical library as well. The best medical libraries are located at medical schools. If you do go to a medical school, go also to the medical bookstore and purchase a copy of the Merck Manual, which is dense with medical terminology but gives very concise information about a number of diseases and treatments.

As you do your research, try to find out if there are any medical centers near you that specialize in your illness. If so, and you are able, go to such a center for a second opinion. If that option is not available to you, try to get a second opinion from another doctor in your community. Finding a local doctor for a second opinion who isn't friends with your doctor may be difficult, however. If you are a member of a health maintenance organization (HMO), it will be nearly impossible to get an objective second opinion unless you are willing to pay for it yourself. Similarly, if you were injured at work and are required to go to a "company doctor", getting a second opinion will often require paying for it out of your own pocket.

After you've done your research and hopefully obtained a second opinion, talk to your doctor again. Ask about the treatments your doctor is recommending and about alternatives you have read or heard about. Ask if your doctor sees patients with your condition often, to gauge his or her experience in treating the condition. Ask if your doctor has done research or published papers about your illness. If so, ask your doctor if you can have a reprint to read - your doctor should be complimented by your request. Whenever you talk to your doctor or other health care provider, take notes, date them and save them. They may be needed in the future if things go wrong.

If this all sounds like a lot of work, consider the benefits. You will have more confidence in your doctor and more control over your own fate. You will have learned a lot about your illness and the things you can do yourself to minimize its impact (such as going on a special diet, quitting smoking, etc.).

Avoiding malpractice requires that you take responsibility for your own outcome and not just rely on your doctor's judgment. Doctors are taught in medical school that patients become dependent and childlike when they are ill and depend on their doctors unreasonably. Some doctors will even take advantage of this tendency to promote themselves. You must avoid this dependency - only by being in control of your own health care will you avoid being a victim and assure yourself of getting the best treatment possible.

 The author is a medical malpractice attorney in San Antonio, Texas, and an emergency physician. He is also the Executive Director and Medical Director of Physicians for Quality, a national network of physicians who review medical malpractice cases for both patients and doctors. He has worked with the U.S. Food and Drug Administration in Washington, D.C., and with the Texas Attorney General's office to assist in the prosecution of health care fraud. This column, like the author's law practice, is committed to improving health care through the law and through public information.

Curtis P. Clogston, J.D. M.D.