Frequently Asked Questions
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A: Medical negligence (also known as medical malpractice) is the term used when a medical professional (typically a doctor or a nurse) fails to act carefully and causes harm to a patient. Every medical professional has a duty to act within the “standard of care” for his or her profession, which means that he or she must exercise the degree of skill, care, and learning that other reasonably careful medical professionals of the same type would use in a similar situation. Failure to exercise such skill, care, and learning constitutes a breach of the standard of care and is negligence. Medical malpractice can be both an act (the medical professional does something that he or she should not have done) or a failure to act (the medical professional fails to do something that he or she should have done). For examples of medical malpractice, click here. For real stories of medical negligence, click here.
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A: Anybody who renders any sort of medical care to you (for example, a doctor, nurse, medical or laboratory technician, pharmacist, pathologist, chiropractor, psychologist, etc.), as well as the hospitals, clinics, HMOs, nursing homes, laboratories, or other companies for whom they work. Experienced medical malpractice lawyers can identify potentially liable healthcare providers.
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A: With regard to most medical malpractice cases, the only way to know if you might have a good case is to have a medical professional look at medical records and the facts and give an opinion. This is what we have done when we represent you.
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A: That depends on the circumstances. The general rule in Washington is that medical malpractice cases must be brought within three years of when the malpractice occurred, but there are some exceptions that allow some claims to be brought up to eight years after the malpractice. The time limitations for medical malpractice claims can be tricky, and it is important that you have an attorney with experience in medical malpractice take a look at your situation.
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A: It depends on a number of factors, including your status in the lawsuit. By status, we mean whether you are the injured person or whether the injured or deceased person is your spouse (including state registered domestic partner), child (including stepchild), parent, brother, or sister.
If you are the injured person, then in general you will be entitled to all of your economic and noneconomic damages. Economic damages are “objectively verifiable monetary losses” and include (as may be applicable to the facts of a particular case) such things as past and future loss of earnings, loss of earnings capacity, loss of business or employment opportunities, loss of support, medical and nonmedical expenses caused by the injury, expenses of caring for the injured person if he or she can no longer fully care for himself or herself, and the cost of obtaining substitute domestic services to replace those services around the house that the injured person can no longer perform (such as cooking, cleaning, washing clothes, shopping, mowing the lawn, washing the car, and other household maintenance and repair). Noneconomic damages are “subjective, nonmonetary losses” and include (as may be applicable to the facts of a particular case) such things as past and future pain, suffering, inconvenience, mental anguish, disability, disfigurement, emotional distress, humiliation, injury to reputation, loss of society and companionship, loss of consortium, loss of enjoyment of life, and damage to or destruction of the parent-child relationship. If you are the spouse of an injured person, then you will be entitled to loss of consortium, which means the loss of the fellowship of husband and wife and the right of one spouse to the company, cooperation, and aid of the other in the matrimonial relationship. It includes emotional support, love, affection, care, services, and companionship (including sexual companionship), as well as assistance from one spouse to the other. Parents of an injured minor child generally are entitled to economic and noneconomic damages, including the loss of love and companionship of the injured child and damage to the parent-child relationship, as may be applicable to the facts of a particular case. Parents of an injured adult child are entitled to economic and noneconomic damages under certain circumstances. If the medical negligence leads to the death of the person, then his or her spouse and children (if he or she has any), and in certain circumstances parents, brothers, and sisters, can be entitled to economic and noneconomic damages. An experienced medical malpractice attorney can advise you of what damages might be recoverable in your particular case.
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A: This can vary, depending on the unique facts of your case (including the county in which the defendant(s) reside and certain other considerations). Generally, the majority of medical negligence cases are resolved somewhere between 12 and 24 months after starting the claims process. Sometimes we can obtain resolution sooner (sometimes much sooner, if we can settle the claim before having to file a lawsuit), and sometimes resolution takes more than 24 months. The best advice is to be patient and let us do our job for you.
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A: Not much. Initially, you will have to sign some medical record authorizations to allow us to obtain your medical records. As the lawsuit progresses, you may have to give us some information and documents to allow us to answer written questions and requests for documents from the defendants. We will guide you through this. (We likewise will be asking the defendants for information and for certain of their documents.) If the case does not settle early, you will probably have to give a deposition, which is a proceeding where the attorneys for the defendants ask you questions and you answer. Your deposition usually would happen in our offices. We will prepare you for the deposition and will be present at the deposition to protect your rights. (We will likewise take depositions of the defendants.) There will probably be a mediation, which is just a voluntary meeting of the parties and their attorneys with a mediator, who usually is an attorney or retired judge who helps the parties try to settle the case. A mediation usually takes place at the mediator’s offices or some other mutually agreeable location. It usually takes between one-half and a full business day, and you would need to attend (although you do not have to sit in the same room or even see the defendants, if you do not want to). We will be with you to protect your rights and to attempt to negotiate the best settlement for you. In the relatively unlikely event that the case does not settle, you would need to attend at trial.
A: We work on a contingent fee basis. That means that if there is no recovery, you do not pay us any attorney fees. When the client does not have sufficient funds, we can advance the litigation expenses, which are costs for things such as filing fees, costs to obtain copies of medical records, expert witness fees, court reporter charges, and the like, as we may deem appropriate. Under the Washington Rules of Professional Conduct (which govern attorney fee contracts), the client must remain ultimately responsible for the litigation expenses that we advance. If there is a recovery, then the client pays those expenses back to us out of the recovery. Recovery can be had from different defendants at different times, and if so, then at the time that each recovery is finalized, any litigation expenses then-outstanding are paid back to us, as are any remaining outstanding litigation expenses at the final conclusion of the case. While this debt cannot be “forgiven,” we are not required to collect these litigation expenses from our client in the event that there is no recovery (per Washington State Bar Association Advisory Opinion No. 1389 (1991)). If the court assesses costs or penalties against the client, those must be paid by the client, under the Rules of Professional Conduct.
Q. I’ve had a lot of extra medical expenses that my healthcare insurer has paid. Will I have to pay my healthcare insurer for those expenses?
A: Probably, but if so, the money will come from the defendants in your lawsuit. Specifically, if the medical malpractice caused you to need additional medical care that you would not have otherwise needed, and if that additional medical care was paid for by your health insurance company (or, if applicable to your situation, provided by your HMO or paid for by Medicare, etc.), then your health insurance company (or HMO, Medicare, etc.) would be entitled to repayment out of the proceeds of any recovery that you may have. If there is no recovery, then you do not have to pay your health insurance company back for the insurance benefits that it provided.
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A: Unfortunately, yes, and unfortunately, more often than you would think. Although most doctors, nurses, and other healthcare professionals give competent care most of the time (and at times quite good care), studies show that medical errors happen far too often. It is well-accepted that medical error is a leading cause of death and injury in the U.S., and based on recent medical studies and reasonable extrapolations from those studies, medical error may well be the leading cause. And when medical errors happen, the results can be devastating for the patient and his or her family. For a further discussion on how often medical errors happen, click here.
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A: Billions. One study analyzed the total social cost of harm caused by medical interventions (that is, the economic costs associated with the lives lost or injuries suffered due to medical care) and found the annual cost to be $393 billion to $958 billion. (See Goodman J, Villarreal P, Jones B. The social cost of adverse medical events, and what we can do about it. Health Affairs. 2011;30(4):590-595.) Another study looked at just medication errors alone (which obviously are just a part of overall medical errors and therefore just a part of the overall costs of medical errors), and estimated medication error morbidity and mortality costs at $77 billion per year. (See Academy of Managed Care Pharmacy. The Academy of Managed Care Pharmacy’s Concepts in Managed Care Pharmacy – Medication Errors (2010), at p. 1, citing Grissinger M, et al. The role of managed care pharmacy in reducing medication errors. J of Managed Care Pharmacy; 2003;9(1):62-65.) Other studies have placed the cost of measurable medical errors at $17-$29 billion per year. (See (a) Van Den Bos J, Rutagi K, Gray T. The $17.1 billion problem: the annual cost of measurable medical errors. Health Affairs. 2011;30(4):596-603; and (b) Committee on Quality of Health Care in America, Institute of Medicine (Kohn L, Corrigan J, Donaldson M, eds). To Err Is Human: Building a Safer Health System, Washington, DC: National Academies Press; 1999, at pp. 1-2.) Regardless of how one slices it, the yearly cost of medical errors is many billions of dollars.
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A: Two main reasons – (1) the lack of transparency and accountability that permeates our healthcare system, coupled with (2) a healthcare model with the wrong profit incentives that not only does not punish, but oftentimes financially rewards, poor medical care.
A properly functioning, efficient market system is fully transparent with full accountability. Transparency means that the consumer of a product has full information as to what the product is, how well it functions, and how safe it is. Accountability means that the seller of a product is penalized if the product does not function well or is unsafe, or if the product is something different from what the consumer would have wanted if he or she had full information. Transparency and accountability incentivize sellers of products to provide the best, safest products at the lowest price – otherwise, consumers will simply buy the better, safer competing product.
However, our healthcare system has little transparency and little accountability in many of the key areas. Doctors and hospitals (the sellers of medical services and products) deliberately hide critical information from the patients (the consumers). For instance, studies have shown that “practice makes perfect,” that is, the more that a physician or hospital does a particular procedure, the better he/she gets, with less complications and better overall results, all else being equal. (See Unaccountable – What Hospitals Won’t Tell You, and How Transparency Can Revolutionize Health Care, by Marty Makary, M.D., Bloomsbury Press, New York (2012), the Introduction to which is available publicly at <http://www.amazon.com/Unaccountable-Hospitals-Transparency-Revolutionize-Health/dp/1608198383#reader_1608198383>.) However, in our healthcare system, a patient has no meaningful or reliable way to access how much experience his/her doctor or hospital has with the patient’s particular health problem or needed surgery, because “Herculean efforts are made to make sure that [the patient] can’t [obtain the information].” (Id.) So, a patient in America undergoing, for example, a polypectomy (removal of a polyp) found on colonoscopy has no idea whether the surgeon has done the procedure 10 times before or 1,000. Nor does the patient know whether his/her doctor or hospital has a high rate or a low rate of complications for polypectomies when compared to other doctors or hospitals. (Id.) And, unfortunately, the patient cannot simply rely on the doctor’s or hospital’s reputation, because physicians and hospitals with good public reputations not infrequently have worse-than-average patient outcomes, even after adjusting for case complexity. (Id.)
This lack of transparency allows poor performing doctors and hospitals to be protected from the consequences of their poor practice, that is, to be unaccountable. Indeed, because doctors and hospitals in America are largely paid by the procedure or service rendered, poor performing doctors and hospitals actually receive more money for their poor performance than if they performed well. This is because medical complications often necessitate additional follow-up medical care to treat the complication. Thus, doctors and hospitals with higher (hidden) rates of complications simply charge the patients more money to treat the complications. (Id.)
This lack of transparency and accountability permeates virtually every aspect of our healthcare system. Every healthcare researcher knows that medical mistakes are common, and every doctor knows at least one doctor who should not be practicing medicine because he or she is dangerous. (Id.) However, medical mistakes are rarely reported: “Doctors swear to do no harm. But on the job they soon absorb another unspoken rule: to overlook malpractice in their colleagues.” (Id.) The patients rarely find out about the errors. By and large, doctors are poorly policed. Getting fired takes an action so egregious or offensive to hospital administration that it only very rarely happens. (Id.) Doctors with multiple malpractice lawsuits against them or with drug, alcohol, or psychiatric problems rarely lose their license to practice medicine. (Id.) State medical boards “mostly serve the interests of their stakeholders – doctors.” (Id., quoting a member of the U.S. Inspector General’s Office who has overseen state medical boards.) Patients have no meaningful or reliable way to know how many errors their doctor or hospital typically makes or how many medical malpractice lawsuits they have paid on. They usually have no way to know whether their doctor is currently in treatment for drug, alcohol, or psychiatric problems. If a patient has a choice of two hospitals, one of which has a high error/malpractice rate and one of which has a low rate, the patient obviously would choose the hospital with the low rate. And, that would force the hospital with the high rate to work hard on lowering its error rate, to attract patients. But patients don’t have access to that kind of information in our non-transparent healthcare system.
Moreover, in the pursuit of profits, some hospitals skimp on doctor and nurse staffing, leaving sick patients thinly covered. Residents at hospitals (doctors who are receiving postgraduate training) are paid at low rates by the hospitals. This creates a financial incentive for the hospitals to have the residents work long hours, which residents historically have done. However, studies have shown that residents working in a sleep-deprived state make many more errors than if better-rested. (See e.g. Landrigan CP, Rothschild JM, Cronin JW, et al. Effect of reducing interns’ work hours on serious medical errors in intensive care units. New Engl J Med. 2004;351(18):1838-48.) Yet, despite fairly recent voluntary guidelines meant to limit the number of hours that residents can work, many residents continue to work long hours in a sleep-deprived state, leading to increased medical errors. (See Unaccountable – What Hospitals Won’t Tell You, and How Transparency Can Revolutionize Health Care, supra.) Moreover, some hospitals have spread their residents even thinner by requiring them to cover more patients, with the attendant increase in medical errors. (Id.)
In addition, the U.S. medical system is rife with overtreatment, largely because doctors and hospitals mostly get paid when they do something and not when they don’t. So, they have a huge financial incentive to treat even when the best medical course would be to do nothing or do a less extensive procedure. The more treatment that is rendered, the higher the chances that some doctor, nurse, or other healthcare provider will make a mistake. (Id.; see also Shannon Brownlee. Overtreated: Why Too Much Medicine Is Making Us Sicker and Poorer (New York: Bloomsbury, 2007).)
As a result of all this, the U.S. has a high rate of medical errors compared to other countries. (See Peterson C, Burton R. CRS Report for Congress. U.S. Health Care Spending: Comparison with Other OECD Countries. Sept. 2007, at CRS-45 (a 6-country comparison of advanced economies found that the U.S. had the worst rating in terms of medical errors) and at CRS-52 (U.S. has the third-highest rate of deaths from medical errors among 26 advanced economies, 75% above the average for the other countries).)
In our view and the view of many who have looked into this problem, medical errors in America could be greatly decreased by some combination of (1) requiring greater transparency and accountability from the multi-trillion dollar healthcare industry; (2) adopting a single-payer system; and (3) removing the financial incentives to overtreatment. (For a further discussion of how medical errors could be decreased, see the FAQ, below, “What is the solution to our high healthcare costs and high medical error rates?”)
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A: Without a doubt. Doctors, hospitals, and their insurance companies are businesses. Like any business, they respond to increased costs by trying to control those costs. Requiring these healthcare providers to pay for their medical errors gives them a big incentive to practice better. (See, e.g., Baker T. The Medical Malpractice Myth. Chicago, IL: Univ. of Chicago Press; 2005:93-117.)
A good example is anesthesiologists. As a whole, anesthesiologists used to be sued a lot and used to pay high medical malpractice insurance premiums. The American Society of Anesthesiologists (ASA) decided to study the problem. They analyzed every medical malpractice lawsuit against anesthesiologists that they could find and discovered that many claims against anesthesiologists were the result of a few very specific problems with anesthesia equipment and medical errors that anesthesiologists were making over and over. The ASA then supported the development of better anesthesia equipment and new practice guidelines and worked hard to get anesthesiologists to use them. As a result, bad patient outcomes dropped greatly, as did malpractice claims against anesthesiologists. Anesthesiologists went from having some of the highest insurance rates to some of the lowest, all because medical malpractice lawsuits led anesthesiologists to improve the medical care that they gave to patients. (See The Medical Malpractice Myth, supra, at pp. 108-110.) Although you could call the new procedures and equipment “defensive medicine” (because they were implemented to avoid malpractice lawsuits), it is good defensive medicine, because it decreases errors, saves lives, and thereby lowers that aspect of anesthesia costs. Unfortunately, many other medical specialties have not followed the lead of the anesthesiologists and instead try to control their costs by supporting “tort reform,” which really just gives the healthcare providers a free (or cost-reduced) pass for their malpractice and puts the burden on the injured plaintiffs, who are denied full compensation (and often any compensation at all).
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A: Absolutely not. There is a lot of urban legend and outright propaganda floating around out there. One falsehood is the tort reformers’ assertion that medical malpractice lawsuits are causing U.S. healthcare to be so expensive. That simply is not true. According to the medical studies, medical malpractice lawsuits account for a miniscule 1-2% of the total cost of healthcare. (See Baker, T. The Medical Malpractice Myth. Chicago, IL: Univ. of Chicago Press; 2005:40, and studies cited therein.) Further, the cost of medical malpractice lawsuits decreased by 28.8% from 2003-2012, while the cost of healthcare increased by 58.3%. (See Public Citizen. No Correlation – Continued Decrease in Medical Malpractice Payments Debunks Theory That Litigation Is to Blame for Soaring Medical Costs. Public Citizen’s Congress Watch; Washington, D.C. (Aug. 2013).) Clearly, medical malpractice lawsuits are not what is causing healthcare costs to rise.
Moreover, studies have found that there is little frivolous litigation. The tort system does a good job of weeding out bad claims and paying only on meritorious claims. (See (a) Baker, T. The Medical Malpractice Myth. Chicago, IL: Univ. of Chicago Press; 2005:68-92, and studies cited therein; (b) Studdert D, Mello M, Gawande A, et al. Claims, errors and compensation payments in medical malpractice litigation. N Engl J Med. 2006; 354;19:2024-2033; (c) Public Citizen. The Great Medical Malpractice Hoax – NPDB Data Continue to Show Medical Liability System Produces Rational Outcomes. Jan. 2007; (d) Public Citizen. Medical Malpractice Payout Trends 1991-2004 – Evidence Shows Lawsuits Haven’t Caused Doctors’ Insurance Woes. April 2005.) Thus, the 1-2% that is spent on medical malpractice lawsuits is spent for a good purpose – compensating real victims of real medical errors.
Another falsehood is that so-called “defensive medicine” is driving up the cost of healthcare. Contrary to these claims, studies have found that the total cost of defensive medicine, like the overall cost of the medical malpractice lawsuit system, is a miniscule 1-2% of the total healthcare cost. (See Public Citizen. Defensive Medicine: The Doctored Crisis. Public Citizen’s Congress Watch; Washington, D.C. (Mar. 2013), and studies cited therein.) And, the U.S. Congressional Budget Office has determined that, “On the basis of existing studies and its own research, CBO believes that savings from reducing defensive medicine would be very small.” (See Beider P, Hagen S. Limiting Tort Liability for Medical Malpractice. Congressional Budget Office. Jan.2004, at p. 6.) A better explanation for so-called “defensive medicine” (that is, for the extra tests and procedures that doctors order) is the financial incentives to doctors of ordering those extra tests and procedures. (See (a) Beider P, Hagen S. Limiting Tort Liability for Medical Malpractice. Congressional Budget Office. Jan.2004, at p. 6 (“some so-called defensive medicine may be motivated less by liability concerns than by the income it generates for physicians or by the positive … benefits to patients”); (b) Public Citizen. Defensive Medicine: The Doctored Crisis. Public Citizen’s Congress Watch; Washington, D.C. (Mar. 2013).) One of the true drivers of high U.S. healthcare cost is the high cost of U.S. physicians, who earn twice as much as the median for their international compatriots. (See U.S. Congressional Research Service – Domestic Social Policy Division, Peterson C, Burton R. U.S. Health Care Spending: Comparison with Other OECD Countries. Sept.2007, at pp. CRS-18, 59.) Other causes are the high costs in the U.S. for medical equipment, medical procedures, pharmaceuticals, and health administration and health insurance. (Id. at CRS-18-22.) And, despite the high cost of the U.S. healthcare system, it unfortunately is nowhere near the best in terms of healthcare. (See (a) World Health Organization. The World Health Report 2000. Health Systems: Improving Performance (although the U.S. has by far the highest health expenditures per capita, the U.S. healthcare system was ranked only 37th in the world overall when evaluated on a number of factors); (b) Starfield B. Is US health really the best in the world? JAMA. 2000;284(4):483-485 (although the U.S. healthcare system is by far the most expensive in the world, the “U.S. population does not have anywhere near the best health in the world”).)
Finally and importantly, the U.S. Congressional Budget Office reviewed all of the relevant medical studies, as well as conducted its own studies, and found that “tort reforms” (that is, limiting the amounts that victims of medical negligence can recover) would have a “near zero” effect on overall health care spending. (See (a) White C, Hagen S. Medical Malpractice Tort Limits and Health Care Spending. Congressional Budget Office. Apr.2006, at p. 3 (“[t]he estimated effect of implementing a package of … proposed tort limits is near zero”); (b) Beider P, Hagen S. Limiting Tort Liability for Medical Malpractice. Congressional Budget Office. Jan.2004, at p. 6 (limiting malpractice liability “would lower health care costs by only about 0.4 percent to 0.5 percent”).) Restrictions on malpractice liability “modify the distribution of gains and losses to individuals and groups but do not create benefits … for society as a whole” (that is, without any benefit to society as a whole, so-called tort reforms allow doctors, hospitals, and insurance companies to profit more, at the expense of the victims of medical malpractice, who are denied full compensation). (See Beider P, Hagen S. Limiting Tort Liability for Medical Malpractice. Congressional Budget Office. Jan.2004, at p. 5.)
The only thing that “tort reform” does is to make doctors, hospitals, and insurance companies richer – at the expense of the victims of medical negligence. It does not bring down health care costs. Don’t buy the tort reformers’ sham arguments.
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A: An incomprehensibly huge amount of money.
In 2013, healthcare expenditures amounted to $2.9 trillion. Just to get some perspective on this number, remember that each trillion is 1,000 billion, and each billion is 1,000 million. So, $2.9 trillion is the same amount of money as going to a 70,000 seat football stadium and placing a pile of $1 million on each and every one of the 70,000 seats in the stadium, then taking all that money and putting it in a warehouse and going back to the stadium and placing another $1 million on each and every one of the 70,000 seats, and then putting all that money into the warehouse and repeating the process, for 42 times. It is an almost incomprehensively huge amount of money.
Healthcare comprises about 18% of our economy. (See Plunkett Research, Ltd. Introduction to the Health Care Industry. Health Care Industry Market Research – Plunkett Research, Ltd website (2014).) This is a larger share of GDP than in any other country by a wide margin and is almost twice the average amount that the other advanced economies spend on healthcare compared to their Gross Domestic Product. We spend 2.5 times the amount per person than the average for other advanced economies. (See Peterson C, Burton R. CRS Report for Congress. U.S. Health Care Spending: Comparison with Other OECD Countries. Sept. 2007, at pp. CRS-1 to CRS-2.) This is not because we receive more healthcare services (other countries actually receive more services per person than we do). (Id. at CRS-5 to CRS-16.) It is because we pay far more per person for the same services than people in other countries pay. (Id. at CRS-16 to CRS-30.)
Does all this spending mean that the U.S. has the best healthcare in the world? Unfortunately, no, and it’s not even close (see next FAQ, below).
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A: Unfortunately no, and it’s not even close.
According to the World Health Organization (“WHO”), the U.S. healthcare system ranks 37th in the world when evaluated on a number of factors. (See World Health Organization. The World Health Report 2000. Health Systems: Improving Performance, at p. 200.) When comparing the U.S. to just other industrialized countries, the U.S. ranked 15th among 25. (Id.) This low overall ranking has been confirmed by a number of other studies. For instance, a study appearing in the Journal of the American Medical Association found that the U.S. system is nowhere near the best. Some excerpts from the article:
The fact is that the US population does not have anywhere near the best health in the world. Of 13 countries in a recent comparison, the United States ranks an average of 12th (second from bottom) for 16 available health indicators. Countries in order of their average ranking on the health indicators (with the first being the best) are Japan, Sweden, Canada, France, Australia, Spain, Finland, the Netherlands, the United Kingdom, Denmark, Belgium, the United States, and Germany. Rankings of the United States on the separate indicators are:
- 13th (last) for low-birth-weight percentages
- 13th for neonatal mortality and infant mortality overall
- 11th for post-neonatal mortality
- 13th for years of potential life lost (excluding external causes)
- 11th for life expectancy, at 1 year for females, 12th for males
- 10th for life expectancy, at 15 years for females, 12th for males
- 10th for life expectancy, at 40 years for females, 9th for males
- 7th for life expectancy, at 65 years for females, 7th for males
- 3rd for life expectancy, at 80 years for females, 3rd for males
- 10th for age-adjusted mortality
(See Starfield B. Is US Health Really the Best in the World? JAMA. 2000;284(4):483-485.)
So, we pay far more than other countries for our healthcare, but we receive far less than the best care.
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A: Three main reasons: (1) overtreatment by doctors and hospitals, (2) bloated provider/administrative costs, and (3) lack of transparency/accountability.
Of the $2.9 trillion that the U.S. spends each year on healthcare, an estimated 20%-33% is overtreatment that is unnecessary and is wasted money. (See Shannon Brownlee. Overtreated: Why Too Much Medicine Is Making Us Sicker and Poorer. New York, NY: Bloomsbury; 2007; see also Schuster M, McGlynn E, Brook R. How good is the quality of health care in the United States? Milbank Qtrly. 1998;76:517-563 (20%-30% of medical care in the U.S. is contraindicated by professional standards and should not be given).) In 2013, this amounted to $580-$967 billion. “[T]he most powerful reason that doctors and hospitals overtreat is that most of them are paid for how much care they deliver, not how well they care for their patients. They get paid more for doing more.” (Overtreated: Why Too Much Medicine Is Making Us Sicker and Poorer, supra; see also, Makary M. Unaccountable – What Hospitals Won’t Tell You, and How Transparency Can Revolutionize Health Care. New York, NY: Bloomsbury Press; 2012.)
Let’s draw that out. The U.S. healthcare industry largely operates on a fee-for-service model, meaning that healthcare providers are paid only when they perform a medical service or sell a medical product. The goal of healthcare providers (and especially the giant healthcare providers of today), like any business, is to maximize their profits. Although most physicians in general try to do right by their patients, this fee-for-service model builds in all the wrong incentives. It rewards doctors and hospitals when they perform a procedure or otherwise render care, but not if they don’t. In fact, the better that the patients do (and the less medical services that patients need), the less money that healthcare providers make. (Id.)
This results in well-documented overtreatment. Doctors and hospitals (a) perform procedures or prescribe a drug or treatment even when the best medical care might be to do nothing; (b) perform more extensive and expensive procedures when the best medical care might be to do less extensive and less expensive procedures; and (c) do not refer patients to other physicians/hospitals who have more experience and skill in treating a particular problem and probably have better overall patient results, even when referral would be in the best interests of the patient and the overall outcome would likely be better (with less medical errors and less medical malpractice costs and downstream care costs). When a doctor or hospital makes a medical mistake, it usually necessitates more (and sometimes much more) medical care and hospital services. The doctors and hospitals are then paid more money for these additional services (and most patients never know of the errors). So, there actually is a financial disincentive to reduce medical errors. (Id.; see also, U.S. Congressional Research Service – Domestic Social Policy Division, Peterson C, Burton R. U.S. Health Care Spending: Comparison with Other OECD Countries. Sept.2007, at CRS-40 (studies suggest that “doctors’ financial stakes in specialty hospitals cause them to refer more patients for elective surgery – especially relatively healthy patients”).)
• Bloated provider and administrative costs:
No other country pays its doctors as much, even after adjusting for how rich each country is. General practitioners in the U.S. are paid double the median of the other advanced economies, and our specialists are paid almost triple the median. (See Peterson C, Burton R. CRS Report for Congress. U.S. Health Care Spending: Comparison with Other OECD Countries. Sept. 2007, at CRS-18.) One of the reasons is because doctors and other industry groups have used their political clout to limit the supply of doctors, which increases doctor earnings but in turn drives up the cost to society. (See, e.g., (a) The cost of protectionism: Limited choice of doctors and hospitals. Center for Economic Policy and Research website. Nov. 21, 2013; (b) Cauchon D. Medical miscalculation creates doctor shortage. USA Today – Health and Behavior. March 2, 2005.)
In addition, the U.S. pays the highest prices in the world for medical equipment. (See Peterson C, Burton R. CRS Report for Congress. U.S. Health Care Spending: Comparison with Other OECD Countries. Sept. 2007, at CRS-19.) The U.S. pays the highest prices in the world for medical procedures. (Id. at CRS-22.) It pays higher prices for pharmaceuticals than most countries in the world. (Id. at CRS-22.)
Spending on health administration and insurance in the U.S is 7 times more than the median of other countries. (Id. at CRS-29.) The U.S. spent 7.6% of its total healthcare spending on administration and insurance, whereas the median for the other advanced economies was only 2.5%.
Emblematic of our system-wide problems is the huge pay of hospital and health systems CEOs. In 2013, the average total compensation package for CEOs of independent health systems was $944,300. (See Herman B. 16 Statistics: Salaries and Cash Compensation for Hospital and System CEOs. Becker’s Hospital Review. (Oct. 2013).) Looking at children’s hospitals, in 2009 CEO compensation at the 25 largest independent children’s hospitals ranged from a high of nearly $6 million to a low of $686,125. (See Gilbert M. Gaul. Heads of Largest Children’s Hospitals Receive Big Salaries and Rich Benefits. Kaiser Permanente website (2011).) In all, 22 of 25 children’s hospital CEOs collected at least $1 million, three received at least $2 million, and 2 received more than $5 million. (Id.) And, incredibly, the CEOs’ pay is not tied to patient safety or outcome. (See Joynt K, Le S, Orav EJ. Compensation of Chief Executive Officers at Nonprofit US Hospitals. JAMA Intern Med. 2014;174(1):61-67.) In our opinion, having CEO compensation be unrelated to patient safety or patient results is perverse, to say the least.
As written in Unaccountable – What Hospitals Won’t Tell You, and How Transparency Can Revolutionize Health Care:
[I]t became clear to me that executive compensation was another example of poor accountability among the leaders of our nation’s hospitals. [¶] It turns out that the local children’s hospital in Washington, D.C., was not alone in feeding fat salaries to its managers. The CEO of Children’s Mercy Hospital in Kansas City, Missouri, was paid nearly $6 million the same year the hospital blitzed the community with fund-raisers.
In one fund-raiser for Children’s Hospital of Boston (Harvard’s children’s hospital), children were asked to collect pennies from other children at school. This for an organization that recorded a $111 million surplus that year (2009) as a nonprofit and paid its CEO millions. In other words, they collected pennies from kids and made tons of money. Hospital fund-raising is so lucrative that the hospital has 125 full-time fund-raisers – more than the number of primary-care pediatricians there. Like most children’s hospitals, the reason it spends so much on such an enormous fund-raising department is that it pulls in so much money….
(See Unaccountable – What Hospitals Won’t Tell You, and How Transparency Can Revolutionize Health Care, by Marty Makary, M.D., Bloomsbury Press, New York, NY: Bloomsbury Press; 2012, at p. 131; footnotes omitted.)
And remember that for all this expense, the U.S. is ranked nowhere near the top in terms of quality of healthcare received.
• Lack of transparency/ accountability:
Transparency means that the consumer of a product has full information as to what the product is, how well it functions, and how safe it is. Accountability means that the seller of a product is penalized if the product does not function well or is unsafe, or if the product is something different from what the consumer would have wanted if he or she had full information.
In the healthcare setting, the patient is the consumer of medical services, medical devices, and drugs. Unfortunately, the U.S. healthcare system has very little transparency and very little accountability. In this website, we have referred at different places to a book entitled Unaccountable – What Hospitals Won’t Tell You, and How Transparency Can Revolutionize Health Care, written by Dr. Marty Markary. He is a leading surgeon in the country who has published widely on patient safety and has helped lead the World Health Organization’s effort to develop ways of measuring health care quality. He comments regularly for television on medical topics. In his book, Dr. Markary draws out in detail the lack of transparency and lack of accountability in the U.S. healthcare system.
As Dr. Makary explains, with very few exceptions, neither hospitals nor individual doctors are required to publish the results of their medical interventions, either in terms of complication rates (including death rates), rates of readmission to the hospital within 90 days, or otherwise. So, for instance, if you need a coronary artery bypass graft (“CABG,” or “heart bypass”), there is no publicly available information that you can access to see which hospital or which doctor in your area has the best results for heart bypass and which has the worst. There is no publicly available information that tells you whether your surgeon has done 5 previous heart bypasses or 5,000 (the studies show that the more experience a doctor has, the better the result, everything else equal). Not knowing this information, you have no way to make an intelligent decision as to which provider to choose. If a doctor or hospital has significantly worse results than average, they are immune from the consequences, because the patients never find out their results are significantly worse than average. Because doctors and hospitals are immune from the consequences, there is no incentive to improve patient outcomes (indeed, there is a perverse incentive to allow bad outcomes to continue, since that often means that more medical services will be required to fix the complication, which the doctor and hospital can then charge for). There is no transparency or accountability, and this is the situation across most types of medical conditions treated and medical procedures done here in America.
The situation dramatically changes when there is transparency and accountability, as is best shown by a real-world example taken from Dr. Makary’s book. In New York State in the 1980s, many hospitals were getting into the business of heart bypass surgery because it was so lucrative, even though a number of them probably should not have been doing the surgeries for various reasons. Concerned about this trend, some doctors and nurses in New York argued that the worst performing hospitals should instead have been referring the patients to hospitals with dedicated heart teams and better outcomes. The New York State Health Commissioner looked into the problem and decided on a radical experiment – he made all New York hospitals disclose their death rates from heart bypass operations. The Health Commissioner also required each hospital to report how many heart operations it did each year, together with the complexity of the cases. Death rates were mathematically adjusted for case complexity to make hospital comparisons fair. Now, patients could look up how many heart bypass operations a hospital did and what its risk-adjusted death rate was. The goal was to expose the hospitals with poor results and to let the free market work. “And work it did indeed.” (See Unaccountable – What Hospitals Won’t Tell You, and How Transparency Can Revolutionize Health Care, supra, at pp. 35-42.)
In the first year of reporting, a wide variation between hospitals was found – the death rate from heart bypass surgery ranged from 1% to 18% at the various hospitals. “Some places were outstanding, while others were clearly flying by the seat of their pants.” (Id.) After the results were published, instantly the New York heart hospitals with high death rates scrambled to improve. The result was big, broad improvements in death rates, statewide. Each year, the death rate went down. In the first 4 years, deaths statewide from heart surgery dropped by 41%, and it has continued to decrease ever since. And, bad outliers like the hospital with the 18% death rate were reined in – its mortality rate fell to 7% in 3 years and has since fallen to 1.7%. (Id.)
Yet, this type of information is not widely available for heart bypass surgery in most parts of the country outside of New York. And, this type of reporting for medical procedures other than heart bypass surgery is largely unavailable anywhere in the country, because most hospitals do not voluntarily disclose the information. Patients are left flying blind, and doctors and hospitals continue to avoid being accountable for their results.
This type of lack of transparency/accountability permeates the healthcare system. Doctors with multiple malpractice lawsuits against them or with drug, alcohol, or psychiatric problems rarely lose their license to practice medicine. (See Unaccountable – What Hospitals Won’t Tell You, and How Transparency Can Revolutionize Health Care, supra, at 95-112.) Doctors tend to work further into old age more than any other profession, yet as doctors age, they never have to undergo any testing to see if their memory, intellect, and physical abilities (vision and hand steadiness for a surgeon, etc.) remain fully intact. (Id.) This is very unlike the airline industry, which requires repeated testing of pilots for competency. Resident physicians in hospitals still routinely work highly sleep-deprived and in under-staffed units, greatly increasing the number of medical mistakes made. (Id. at 113-27.) Every healthcare researcher knows that medical mistakes are common. (Id. at 125.) In confidential surveys, one in three doctors has admitted to making a mistake that killed a patient. (Id.) Yet, the patients virtually never find out about it.
This lack of transparency and accountability results in significantly higher prices for doctors, hospitals, and drugs in the U.S. (Id. at 5, 125-26.) It also results in the U.S. having a high rate of medical errors compared to other countries. (See Peterson C, Burton R. CRS Report for Congress. U.S. Health Care Spending: Comparison with Other OECD Countries. Sept. 2007, at CRS-45 (a 6-country comparison of advanced economies found that the U.S. had the worst rating in terms of medical errors) and at CRS-52 (U.S. has the third-highest rate of deaths from medical errors among 26 advanced economies, 75% above the average for the other countries).) And, medical errors cost money. (See Unaccountable, supra, at p. 126.)
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A: In short, (1) adopt a single-payer system; (2) remove the financial incentives to overtreatment; and (3) require greater transparency and accountability from the multi-trillion dollar healthcare industry.
A single-payer system means that the government, rather than individuals and for-profit private insurers, pays for all health care costs. There are two basic types of single-payer systems: one where the payer (government) contracts for healthcare services from private organizations (Canada has this type of single-payer system), and the other where the government actually owns healthcare resources and employs the doctors, nurses, and other personnel (the United Kingdom has this type of system). There also are single-payer systems that are a mix of the above two basic types.
Going to a national single-payer health plan would save an estimated $592 billion every year in health care costs. This savings results from slashing the administrative waste associated with the private insurance industry ($476 billion) and reducing pharmaceutical prices to European levels ($116 billion). These savings would be enough to cover all 44 million uninsured and upgrade benefits for everyone else. (See Friedman G. Funding HR 676: The expanded and improved medicare for all act – How we can afford a national single-payer health plan. (Jul.2013).)
The total amount spent on physician and clinical services and other professional healthcare services in 2012 was $641 billion. (See Centers for Medicare and Medicaid Services. National Health Expenditures 2012 Highlights.) General practice doctors in the U.S. make twice the average (median) of general practice doctors in the other advanced economies, and U.S. specialists make almost three times the average (median). (See Peterson C, Burton R. CRS Report for Congress. U.S. Health Care Spending: Comparison with Other OECD Countries. Sept. 2007, at pp. CRS-18.) Bringing doctor pay down to be in line with other advanced economies would save approximately half of $641 billion, which equals $320 billion.
The total amount spent in 2012 on hospital care in America was $882.3 billion. The U.S. pays 60% more than the average (median) of the other advanced economies. (See Peterson C, Burton R. CRS Report for Congress. U.S. Health Care Spending: Comparison with Other OECD Countries. Sept. 2007, at pp. CRS-28.) Bringing U.S. hospital prices to the level of hospital prices in other advanced economies would therefore save about $310 billion.
Eliminating overtreatment by removing financial incentives to overtreatment would save an estimated 20-33% of our annual healthcare cost. (See Shannon Brownlee. Overtreated: Why Too Much Medicine Is Making Us Sicker and Poorer (New York: Bloomsbury, 2007).) In 2013, this would have been $580-$967 billion saved. Less treatment also means less medical errors.
In terms of increasing transparency and accountability (and thereby decreasing medical errors and improving patient safety), Dr. Makary, in his book Unaccountable, makes the following suggestions:
- Require hospitals to make available to the public the complication rates for the medical conditions that it treats and medical procedures that it performs (adjusted for case complexity). (A complication is any unexpected adverse event that develops during or after a medical treatment or procedure.)
- Require hospitals to make available to the public the number of “never events” that the hospital experiences each year. (Never events are events that should absolutely never happen in a hospital – like operating on wrong side, leaving surgical instruments in patient, etc.)
- Require hospitals to make available to the public the percentage of their patients who are readmitted to a hospital within 90 days of the original treatment, categorized by discharge diagnosis (and adjusted for case complexity). (Patients readmitted within 90 days are called “bouncebacks.” All else being equal, a significantly higher-than-average percentage of bouncebacks for a particular procedure at a particular hospital suggests that the hospital is achieving worse patient outcomes than the average hospital achieves, thus suggesting a higher medical error rate at that hospital.) In addition, require hospitals to make available to the public the average length of hospital stay for each type of medical condition (adjusted by case complexity). (If a particular hospital’s average length of stay for any particular type of medical condition is significantly longer than the average for all hospitals, then that particular hospital probably has a higher rate of complications and a higher rate of medical errors than the other hospitals.)
- Require hospitals to make available to the public their safety-culture scores. These scores are highly correlated with quality of care and patient outcomes.
- Require hospitals to make available to the public, for each medical condition that they handle or procedure that they perform, the number of times that they handle the condition or perform the procedure annually. Practice makes perfect, and patients have a right to know whether the hospital in question does any specific procedure 5 times per year or 5,000.
- Require doctors and hospitals to allow patients to participate in the process of recording the patients’ histories and complaints, and allow patients to have electronic/internet access to their medical records. Studies show that this greatly reduces the amount of incorrectly recorded information and improves patient care and outcomes. In addition, require video recording of most medical procedures (which, when implemented at certain hospitals, has resulted in marked improvements in doctor care and patient outcomes).
By way of comment (and this is embedded in Dr. Makary’s above suggestions), we believe that making the physician discipline system (the system for policing poor-performing doctors) more transparent and effective is an important part of reducing the overall medical error rate. Studies have shown that nationally, a small number of doctors (about 6%) are responsible for a disproportionate amount (about 57%) of medical malpractice. (See Public Citizen. Medical Malpractice Payout Trends 1991-2004 – Evidence Shows Lawsuits Haven’t Caused Doctors’ Insurance Woes. April 2005.) In Washington State, 4% of Washington doctors are responsible for almost half of medical malpractice payments. (See Public Citizen. Fewer Lawsuits and More Doctors: The Myths of Washington State’s Medical Malpractice “Crisis.” Sept. 2005.) The current system does a poor job of weeding out the doctors who shouldn’t be practicing medicine. (See Unaccountable – What Hospitals Won’t Tell You, and How Transparency Can Revolutionize Health Care, by Marty Makary, M.D., Bloomsbury Press, New York, NY: Bloomsbury Press; 2012; see also next FAQ, below.) Simply improving the system for policing doctors could, by itself, result in a significant decrease in malpractice (and a concomitant decrease in healthcare costs).
In any event, requiring greater transparency and accountability from our multi-trillion dollar healthcare industry undoubtedly would result in significant healthcare savings.
We note that there undoubtedly is some overlap among the above-suggested fixes in terms of cost-savings. However, the bottom line is that the U.S. healthcare system is 2.5 times more expensive per person than the average of the other advanced economies, while it delivers sub-average care. (See Peterson C, Burton R. CRS Report for Congress. U.S. Health Care Spending: Comparison with Other OECD Countries. Sept. 2007, at pp. CRS-1 to CRS-2; CRS-18.) Fixing the system so it simply cost 1.25 times more than the average of the other advanced economies would result in a savings of 50% of the total cost, for a total savings of about $1.5 trillion, while presumably improving the quality of our care to at least the average of what the other advanced economies enjoy.
But, expect to hear a lot of negative propaganda about any of the above fixes, because the result would be a less profit for the healthcare and insurance industries, which together spent $7.7 billion (that’s $7,700 million) on lobbying politicians from 1998-2013 and spent $623 million on lobbying in 2013 alone. Unfortunately for patients, entities who advocate for patient safety and lower healthcare costs are able to spend only a tiny fraction of what the giant healthcare and insurance industries spend on lobbying.
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A: Quite unlikely. In fact, one of the major complaints that consumer advocates have is that it is quite common for state medical licensing boards to take no action against doctors who have multiple malpractice jury verdicts or settlements against them.
In Washington, doctors are licensed by the Medical Quality Assurance Commission (“MQAC”) of the Washington State Department of Health. The MQAC can discipline a doctor for “unprofessional conduct,” which can include “incompetence, negligence, or malpractice which results in injury to a patient….” (Revised Code of Washington, section 18.130.180; see generally, Moniz D, Macey-Cushman A. Washington Law Health Manual – Third Ed. (2006), at Ch. 9.) Discipline can include any of the following: reprimand, training, temporary monitoring, temporary supervision, temporary probation, temporary or permanent practice restrictions or conditions, demonstration of knowledge or competency, temporary suspension, and/or revocation of medical license. However, as a practical matter, doctors rarely are disciplined, let alone lose their medical license, over a single act of malpractice. Instead, it usually takes a number of acts of malpractice before something is finally done, and even then it is rare for the doctor to lose his or her license – instead, milder forms of discipline usually are imposed. In Washington State, for instance, only 20% of doctors with three or more malpractice payouts were disciplined in any way (let alone had their license taken away), and only 44.7% with five or more malpractice payouts were disciplined in any way (let alone had their license taken away). (See Schmitt C. Fewer Lawsuits and More Doctors: The Myths of Washington State’s Medical Malpractice “Crisis.” Public Citizen – Congress Watch. Sept.2005, at 23.) And, the statistics are worse nationally: only 15% of doctors who made four or more malpractice payments were disciplined in any way (let alone had their license taken away), and only 33% of doctors who made 10 or more malpractice payments were disciplined in any way (let alone had their license taken away), meaning that two-thirds of doctors in this group of egregious repeat offenders were not disciplined at all. (See Public Citizen. The Great Medical Malpractice Hoax – NPDB Data Continue to Show Medical Liability System Produces Rational Outcomes. Jan. 2007, at 13.)
There are several reasons for this. One is that it is possible, as some commentators have suggested, that state medical boards “mostly serv[e] the interests of their stakeholders – doctors” and do not adequately look after the interests of patients. (See Unaccountable – What Hospitals Won’t Tell You, and How Transparency Can Revolutionize Health Care, by Marty Makary, M.D., Bloomsbury Press, New York, NY: Bloomsbury Press; 2012, at 103-04, quoting a former member of the U.S. Inspector General’s Office who was charged with overseeing medical boards.)
While that may be true to some extent, we believe that a more potent explanation has to do with the “burden of proof.” In an ordinary civil case (like the medical malpractice cases that we pursue for clients), the doctor will be liable to pay money damages to an injured patient if the patient shows by a “preponderance of the evidence” that the doctor malpracticed. “Preponderance of the evidence” simply means that the injured patient has to show that it is more likely than not (for example, 51% likely and 49% not) that the doctor malpracticed. However, a proceeding to discipline a doctor is an entirely different and separate proceeding that is brought by the State Attorney General’s Office. In order to even bring a disciplinary case, the Attorney General’s Office first has to find out about the doctor’s alleged misconduct. It is not unusual for the Attorney General’s Office to not find out about certain medical malpractice cases. Even if the Attorney General’s Office does find out, their burden of proof to be able to discipline the doctor is by “clear and convincing” evidence, at least where the discipline sought includes a possible suspension or revocation of the doctor’s license (as opposed to milder forms of discipline). That is a substantially higher burden (and substantially harder to meet) than mere “preponderance of the evidence.” In order to show “clear and convincing” evidence that the doctor should be disciplined, the Attorney General typically will have to show that the doctor engaged in repetitive acts of medical malpractice going on over a period of time, and even then it is difficult to take a doctor’s medical license away based on malpractice alone.
However, regardless of how the situation has come to exist that doctors only rarely lose their medical license for multiple acts of medical malpractice, it does not make it right or lessen the overall toll on patients and society. As we have noted elsewhere in this website, most medical errors go undiscovered by the patient. Studies show that the fraction of medical malpractice that actually leads to a claim probably is under 2 percent. (See, e.g., Localio AR, Lawthers AG, Brennan TA, et al. Relation between malpractice claims and adverse events due to negligence: results of the Harvard Medical Practice Study III. N Engl J Med. 1991;325:245-51, at pp. 245, 247-49.) This suggests that for every one malpractice payout that a doctor has made, there probably are 50 more patients that the doctor has harmed through medical malpractice but the patients never became aware of the medical malpractice and brought a claim. Thus, when a state medical board fails to discipline a doctor who has 5 malpractice payouts, that means that there probably were another 250 cases of malpractice by the doctor that never were detected by the patient and brought into either the justice system or the state medical board discipline process.
In any event, it is (unfortunately) quite unlikely that your suing a doctor for malpractice will cause him/her to lose his/her medical license or even be disciplined in a milder way. And, in the unlikely event that your lawsuit would cause the doctor to lose his or her license, it is only because the doctor has had multiple cases of malpractice against him/her before, and thus probably should lose his/her license (in order to protect other patients). In cases of clear malpractice, we gently urge people to report their doctor or other health care provider to the Washington State Department of Health. That way, if the doctor has multiple other meritorious complaints of malpractice against him or her, your complaint might be the one that helps get something done and protects other people.
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There are many ways that medical errors happen. If you would like us to evaluate whether a healthcare provider may have made a medical error and caused substantial harm to you or a loved one, contact us and ask. You may contact us either by phone, by e-mail, or by filling out the brief confidential questionnaire on the left. It is free.
We handle cases throughout all of Washington.