A largely
hidden issue of the COVID-19 pandemic is the risk of medical
malpractice, and the consequences for you, health care workers and
hospitals alike
New Jersey has
granted civil and criminal immunity to health care providers battling
COVID-19. Sweeping civil and criminal immunity has also been granted in
New York, including for nursing home executives
Michigan,
Massachusetts, Illinois and Connecticut have also issued immunity laws
for malpractice related to COVID-19, and Iowa lawmakers introduced a
bill to grant broad protections to health care providers, hospitals,
nursing homes and a variety of other businesses in early June
The problem
with handing out broad immunity to any and all health care providers and
executives is that it may lower the quality of care. If you know you
cannot be sued under any circumstance, you’re less likely to take all
the precautions necessary to avoid making a mistake
During the
COVID-19 pandemic, many doctors have been asked to provide care outside
their area of expertise, which increases the risk of errors occurring
A largely hidden issue of the COVID-19
pandemic is the risk of medical malpractice, and the consequences for
patients, health care workers and hospitals alike. As noted by Epic
Brokers:1
“There is … a risk of increased professional liability claims
arising from COVID-19. Claims for alleged failures to properly test,
treat, or diagnose are expected.
Negotiations are ongoing with state and federal governments to
provide immunities to providers on the front lines of COVID-19 response.
Some states have granted immunity to front line healthcare providers
and healthcare organizations, as well as expanded ‘good Samaritan’
protections.”
Indeed, New Jersey2
has granted full immunity — both civil and criminal — to health care
providers battling COVID-19. Sweeping civil and criminal immunity has
also been granted in New York. New York Governor Andrew Cuomo who,
against federal guidelines, ordered ill equipped nursing homes to accept COVID-19 patients, also granted immunity to nursing home executives.
The immunity rule was reportedly3
issued after the Greater New York Hospital Association donated more
than $1 million to the New York State Democratic Committee. Two New York
legislators have since introduced a bill that would repeal Cuomo’s
blanket immunity.4
Michigan, Massachusetts, Illinois and Connecticut have also issued immunity laws,5
and Iowa lawmakers introduced a bill to grant broad protections to
health care providers, hospitals, nursing homes and a variety of other
businesses in early June.6
Medical Errors Are Third Leading Cause of Death in the US
The problem with handing out broad immunity to any and all health
care providers and executives is that it may lower the quality of care.
If you know you cannot be sued under any circumstance, you’re less
likely to take all the precautions necessary to avoid making a mistake.
It is likely this immunity to prosecution led to the egregious
ethical and medical breeches documented by the undercover nurse Erin
Marie Olszewski at the epicenter of the pandemic, Elmhurst Hospital in
New York, which you can see in the section below.
Even without the pandemic, medical errors are the third leading cause of death in the U.S., according to Johns Hopkins patient safety experts.7
According to their data, 9.5% of all annual deaths stem from medical
errors, including misdiagnoses and treatment mistakes. The situation may
be even worse than that, however.
According to the 2017 paper,8
“Your Health Care May Kill You: Medical Errors,” more than 90% of
medical errors go unreported. Even so, medical error rates in the U.S.
are “significantly higher” than those in other developed countries,
including Canada, Australia, New Zealand, Germany and the U.K., the
paper notes.9
The 2017 Commonwealth Fund report,10
“Mirror, Mirror 2017: International Comparison Reflects Flaws and
Opportunities for Better U.S. Health Care” also points out that the U.S.
health care system continually ranks LAST in patient outcomes when
compared to other high-income nations. This, despite the fact that the
U.S. health care system outspends all other countries.
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Nurse on the Frontlines of COVID-19 Shares Her Experience
While it’s important to not hold health care workers to irrational
standards in the midst of an outbreak of a novel, never-before-seen
disease, giving everyone a free pass no matter how obviously egregious
their negligence can also put patients at unnecessary risk.
A standout case in point is the Elmhurst Hospital Center, a public
hospital in Queens, New York, which has been “the epicenter of the
epicenter” of the COVID-19 pandemic in the U.S. In a heavily censored
interview, nurse Erin Olszewski addresses a number of problems at Elmhurst, including the hospital’s:
Rule to not resuscitate COVID-19 patients
Lax personal protective equipment (PPE) standards
Failure to segregate COVID-positive and COVID-negative patients,
thereby ensuring maximum spread of the disease among noninfected
patients coming in with other health problems
Listing COVID-19 negative tests as positive
Routine use of mechanical ventilation of all COVID-19 patients
Of these, the seemingly systematic mislabeling of negative COVID-19
tests as positive and the routine use of mechanical ventilation are
perhaps the most abhorrent, as it has undoubtedly led to the unnecessary
death of many.
In her undercover video, Olszewski talks about how a stroke patient
ended up contracting the disease due to being placed in the same room as
a COVID-positive patient. He ended up on mechanical ventilation,
drastically increasing his chances of dying due to lung damage.
Part of why mechanical ventilation is so dangerous is because you are
given sedatives and paralytics. You’re essentially asleep for the
duration, which could be up to a month. “There’s no way you can recover
from something like that,” Olszewski says. What’s worse, according to
Olszewski, many patients are not even told that they will be put to
sleep. They’re merely told they will receive breathing assistance.
In a chilling conversation, a physician states that not a single
patient has been successfully extubated and released since the pandemic
began, and many of these weren’t even COVID-19 positive to begin with.
In a case like this, should hospital staff and administrators really get
off scot-free?
July Is Medical Malpractice Awareness Month
A July 2, 2020, blog post11 by the law firm Ashcraft & Gerel lists “10 surprising facts about medical negligence and error in the U.S.” Among them:
More than 92% of American and Canadian physicians report having been involved in a medical error and “near misses”
1 in 25 hospital patients develops a preventable infection during their stay
1 in 4 Medicare patients is injured or killed by medical negligence in the hospital
Human failures are responsible for 80% to 90% of all medical errors
An estimated 1 in 3 seniors receiving care in skilled nursing facilities experience preventable adverse events
Despite the continuous rise in preventable medical errors, the rate
of successful medical malpractice claims declined 55.7% between 1992 and
2014. Even when there’s strong evidence of negligence, physicians are
acquitted half of the time, and up to 90% of medical malpractice claims
are dropped without payout.
Pandemic Accelerates Risk Management Changes
According to The Health Care Blog,12
“the pandemic might ultimately … accelerate changes in the way health
care organizations think about risk management and their insurance
coverage for it.”
In the video above, Margaret Nekic, CEO of Inspirien — a
hospital-and-physician-owned medical malpractice and worker’s comp
insurance company — discusses how liability carriers are responding to
the changes brought by COVID-19.
For example, during this pandemic, many doctors have been asked to
provide care outside their area of expertise, which increases the risk
of errors occurring. They’re also using modified equipment. Of course,
SARS-CoV-2, being a novel virus, did not, and still doesn’t, have a
clear-cut treatment strategy, and doctors have had to experiment and
innovate.
Health care workers are also providing testing outside of medical
facilities, and while doctors are typically covered by their malpractice
insurance regardless of where they work, most nurses are covered by the
hospital in which they work, and may therefore not be covered if
they’re providing testing or care in other facilities.
The Problem With Standard of Care
Now, while Johns Hopkins researchers have identified “unwarranted
variation in physician practice patterns that lack accountability” as
one of the primary contributors to medical errors,13
one could just as easily argue that the requirement to adhere to
“standard of care” protocols may actually be part of the problem.
Doctors are afraid to deviate from the standard of care, even when
they disagree with it wholesale or believe it might not be in a specific
patient’s best interest, because this is the easiest way to get sued
for malpractice.
It’s “easier” to let someone die than risk losing their medical
license by doing something differently. This includes prescribing
dangerous medications based on generalized recommendations rather than
following a more individualized system of care.
As it pertains to COVID-19, we’ve seen how Elmhurst hospital has
continued using mechanical ventilation even though front-line workers
and researchers have stepped forward, warning that ventilation kills more COVID-19 patients than it saves and doesn’t appear to be an appropriate treatment for this disease.
We’ve also seen how early treatment with hydroxychloroquine and zinc, despite getting high marks from critical care doctors around the world, has been suppressed in the U.S. — based on fraudulent research, I might add — and both doctors and pharmacists have been warned they risk losing their medical license if they prescribe it.14
This, despite the fact that there really is no other carefully vetted
COVID-19 treatment available yet, as potential therapeutics are still
under investigation.
‘Pious’ Patients Are Most Likely to Die
Back in 2012, I interviewed Dr. Andrew Saul
about his book, “Hospitals and Health: Your Orthomolecular Guide to a
Shorter Hospital Stay,” in which he discusses the risks hospitalized
patients face.
In it, he points out that knowing how to play “the hospital game” can
help save your life. Importantly, so-called pious patients — those who
keep quiet and question nothing — are the most likely to get killed.
One of the best ways to safeguard your health and life during a
hospital stay is to bring a personal advocate, someone who can speak up
for you and ensure you’re given proper care — especially if you’re so
sick you cannot do so yourself.
Unfortunately, this pandemic has prevented family members from
visiting those that are hospitalized to act as their advocates. Many
times, this leaves them at the mercy of hospital staff and physicians
that are immune from prosecution and negatively motivated to consider
any natural therapy, even something as simple as vitamin D, for fear of repercussions from violating the “standard of care.”
This makes it even more important, if you are ever hospitalized now,
to question everything. It’s also important to remember you have the
right to do so. As noted by Saul in that interview:
“The most important thing to remember is this: the hospital power
structure. No matter what hospital you go into … the most powerful
person in the most entire hospital system is the patient …
You might have set that up with a document. If you have a power
of attorney, a living will, or other types of paperwork or someone is
responsible, then we know who’s responsible. But let’s say that it’s
just an ordinary situation — the patient has the most power — [but] the
system works on the assumption that the patient will not claim that
power …
A patient can say, ‘No. Do not touch me.’ And they can’t. If they
do, it’s assault, and you can call the police. Now, they might say,
‘Well, on your way in, you signed this form.’ You can unsign it. You can
revoke your permission.
Just because somebody has permission to do one thing, it doesn’t
mean that they have the permission to do everything. There’s no such
thing as a situation that you cannot reverse … the patient has the
potential to put a stop to anything; absolutely anything.
If the patient doesn’t know that, if they’re not conscious, or if
they just don’t have the moxie to do it, the next most powerful person
is the spouse. The spouse has enormous influence and can do almost as
much as the patient. If the patient is incapacitated, the spouse can
probably do much more than the patient.
If there is no spouse present, the next most powerful people in
the system are the children of the patient … You’ll notice that I
haven’t noticed doctors or hospital administrators once. That’s because
they don’t have the power. They really don’t. They just want you to
think that [they] do.
It is an illusion that they run the place. The answer is — you
do. They’re offering you products and services, and they’re trying to
get you to accept them without question …
[W]hen you go to the hospital, bring along a black Sharpie pen,
and cross out anything that you don’t like in the contract. Put big
giant X’s through entire clauses and pages, and do not sign it. And when
they say, ‘We’re not going to admit you,’ you say, ‘Please put it in
writing that you refuse to admit me.’
What do you think your lawyers are going to do with that? They
have to [admit you]. They absolutely have to … It’s a game, and you can
win it. But you can’t win it if you don’t know the rules. And basically,
they don’t tell you the rules. In [the book] ‘Hospitals and Health,’ we
do.”
Surviving COVID-19
There are no easy answers when it comes to COVID-19, but considering
you may not have the ability to sue for malpractice under any
circumstance (depending on where you live), taking a keen interest in
your treatment would be advisable.
I’ve written several articles over the past few months detailing some
of the treatments that appear to be among the most effective, such as
the MATH+ Protocol and early intervention with hydroxychloroquine and zinc.
For home use, at first sign of symptoms, you could try quercetin in lieu of hydroxychloroquine,
as the primary mechanism of action in COVID-19 is their ability to
shuttle zinc into your cells, and it is the zinc that provides most of
the benefits. Ketone esters may also be helpful for certain symptoms.
Importantly, rather than waiting for a likely harmful vaccine, get
proactive and start optimizing your vitamin D level. You can learn more
about this in “The Most Important Paper Dr. Mercola Has Ever Written” and “How to Fix the COVID-19 Crisis in 30 Days.”
As the old adage goes, an ounce of prevention is worth a pound of
cure. Your safest bet to avoid becoming a medical error statistic is to
stay out of the hospital, and to avoid hospitalization for COVID-19, you
really need to focus on strengthening your immune function and
reversing any underlying comorbidities such as insulin resistance and obesity.
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