Medical Error: Third Leading Cause of Death in the United States

Medical Error Third Leading Cause of Death in the United States

Medical Error Third Leading Cause of Death in the United States

Role of Evidence-Based Guidelines in Medical Malpractice

Medical errors rank behind heart disease and cancer as the third leading cause of death in the United States (see BMJ 2016; 353:i2139), with over 250,000 deaths a year.  700 a day.  And despite tort reform, medical malpractice litigation will never entirely disappear.  It remains important for physicians to understand the elements of a malpractice claim not only to protect themselves but more importantly to improve patient care.

The most confusing aspect of a medical malpractice claim is the standard of care element, and this is further complicated by the increasing use of evidence-based guidelines (EBG) or practice guidelines.  In some countries, EBG provide the legal standard of care, while most common law countries such as UK, Australia and New Zealand place great reliance on guidelines but allow courts discretion in accepting them on a case by case basis.

In the United States, most courts allow testimony using EBG both for and against physicians.  Whether a particular guideline applies to a specific case is simply another argument for the expert witnesses with the jury deciding who to believe.  In most cases, the actual written EBG may not be admissible as an exhibit.  It would fall into the same category as learned treatises and medical journals – the witness can talk about it and be cross-examined, but the document itself is not admissible.  Some courts have adopted a more liberal approach by admitting EBG as demonstrative aids.  Regardless of which approach, a physician on trial for malpractice must recognize that although EBG are not sacrosanct, any deviation from the guideline represents a very powerful argument to the judge or jury.

Neurologist and Attorney James C. Johnston, MD, JD and renowned medical malpractice attorney Thomas P. Sartwelle published the seminal article on expert witnesses discussing guidelines in the Journal of Child Neurology (http://journals.sagepub.com/doi/abs/10.1177/0883073813479669).

Dr. James C. Johnston is one of the very few neurologists in the world that is also qualified in law, and licensed to practice both professions.  He wrote the comprehensive chapter on advancing a neurology malpractice claim in Preparing and Winning Medical Negligence Cases, Third Edition (http://www.jurispub.com/Neurology-Chapter-11-Preparing-And-Winning-Medical-Negligence-Cases-Third-Edition.html).

He has published a number of journal articles and book chapters on how neurologists can improve patient care and protect themselves from malpractice claims.  These publications include book chapters in multiple editions of the American College of Legal Medicine textbook Legal Medicine and Medical Ethics, the Medical Malpractice Survival Handbook, and the landmark three volume treatise Legal and Forensic Medicine.  Dr. James Christopher Johnston has published peer-reviewed articles in Neurology Clinics, Journal of Child Neurology, Headache, Medical Law International, Journal of Legal Medicine, Medicine and Law, and a number of other journals.

In a recent Neurologic Clinics, Dr. James Christopher Johnston published a case studies article highlighting specific neurology claims related to malpractice (https://www.neurologic.theclinics.com/article/S0733-8619(16)30011-1/abstract).  This was co-authored with Thomas P. Sartwelle and leading neurosurgeon Professor Dr. Knut Wester, with the purpose of providing recommendations to improve patient care and safety.

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GLOBAL NEUROLOGY REPORT: WORLD ASSOCIATION FOR MEDICAL LAW MEETING 2018

Topic:  Electronic Fetal Monitoring in Developing Nations – A Public Health Threat

The 24th World Association for Medical Law (WAML) Congress was held in Tel Aviv, Israel on 2-6 September 2018.  Leading international experts discussed topics related to Global Health, Medical Law and Bioethics, with a focus on Public Health concerns.

James C. Johnston, MD, JD, reviewed the use of electronic fetal monitoring (EFM) in Africa, and presented a paper co-authored with pre-eminent medical malpractice attorney Thomas P. Sartwelle, renowned medical ethicist Professor Dr. Berna Arda, and leading neurologist Dr. Mehila Zebenigus from Ethiopia.

Dr. James C. Johnston raised the concern that EFM has no proven efficacy in childbirth yet it is being increasingly employed in sub-Saharan Africa in a misguided approach to reduce perinatal morbidity and mortality.  In fact, EFM has a 99.8% false positive rate, and does not prevent or predict cerebral palsy or any other neonatal neurological disorder.  It does cause significant harm by dramatically increasing the cesarean section rate with all of the attendant risks and complications of that procedure, as well as increasing the risk that babies born in this manner may have a higher incidence of developing chronic diseases such as juvenile arthritis, asthma, inflammatory bowel disease, and neurodevelopmental problems.

After reviewing the overwhelming evidence against EFM, Dr. James Christopher Johnston discussed the recent trend of developed countries to stop this procedure through specific guidelines published by birth-related professional organizations in the United States, United Kingdom, Canada, Australia and New Zealand.  For example, the United Kingdom National Institute for Health and Care Excellence states “Do not offer electronic fetal monitoring to women at low risk.”

Dr. James Christopher Johnston

The 24th World Association for Medical Law (WAML) Congress was held in Tel Aviv, Israel on 2-6 September 2018. Leading international experts discussed topics related to Global Health, Medical Law and Bioethics, with a focus on Public Health concerns.

And yet, EFM is rapidly increasing throughout sub-Saharan Africa due to a combination of intense marketing from the EFM manufacturing companies, and the failure of the medical community to understand that the procedure causes more harm than good to mothers and babies.  Dr. James C. Johnston provided specific examples of the marketing, including the Allied Market Research ‘Global Fetal Monitoring Report’ which concluded that the fetal monitoring market is expected “to reach USD 3.6 Billion by 2022,” that the market in “developing countries is lucrative,” and there is a “perpetual need” for these EFM machines.

Dr. James Christopher Johnston and his colleagues concluded that the WHO should establish guidelines stating that EFM is an experimental procedure that is not scientifically reliable, the standard of care does not warrant EFM in low risk pregnancies, and it should not be performed.  This will allow local health boards in each country to adopt the guidelines, and ensure the medical community stops harming mothers and babies through this procedure.  Then, the resources wasted on EFM can be properly allocated to provide additional training of midwives and healthcare workers, and provide care for children with cerebral palsy and related conditions.

GLOBAL NEUROLOGY REPORT: WORLD ASSOCIATION FOR MEDICAL LAW MEETING 2018

Dr. James Christopher Johnston

The 24th World Association for Medical Law (WAML) Congress held on 2-6 September 2018 in Tel Aviv, Israel.

The 24th World Association for Medical Law (WAML) Congress was held on 2-6 September 2018 in Tel Aviv, Israel.  Leading international experts discussed topics related to Global Health, Medical Law and Bioethics, with a particular emphasis on Humanitarian Medicine, Law and Ethics.

Drs. James C. Johnston and Mehila Zebenigus discussed the urgent need for guidelines to improve relations between the North and South, and thereby advance healthcare access in the least developed regions.

Dr. Johnston was the only member and representative from New Zealand, and Dr. Zebenigus represented Ethiopia.  They explained that the most effective way to improve healthcare access is to establish local training programs in developing regions.  However, this requires international support which has been hampered by the unprecedented growth of global health programs, especially at United States academic medical centers.  This growth is attributable to a number of factors unrelated to improving patient care – factors such as establishing a reputation or ‘brand,’ increasing publications, and generating revenue through government, private and charitable sources.

Dr. James Christopher Johnston discussed how these academic global health programs have created a scramble for Africa characterized by self-serving short term medical missions that are highly beneficial to the sending institution but fail to provide any substantive benefit to the host country.  In fact, he described how these types of medical missions can and do cause actual harm, thereby impeding medical care in the very regions where it is most needed.

Dr. James C. Johnston discussed the urgent need for guidelines that focus on ethically advancing collaborative partnerships between the North and South to improve health care. This topic followed Dr. Johnston’s lectures last year at the WAML meeting in Baku, Azerbaijan and the prior year in Los Angeles, USA, where he and Dr. Zebenigus highlighted the medical, ethical and legal problems created by Western countries engaging in short term medical missions to resource limited nations.

This year, Drs. James Christopher Johnston and Zebenigus focused on the specific guidelines and policy recommendations which they presented to the United Nations High Level Political Forum last year and earlier this year.  James C. Johnston, MD, JD is dually qualified and licensed as a board-certified neurologist and barrister, and uniquely qualified to deal with this very specialized area of international medical law.  Mehila Zebenigus, MD is a board-certified internist and neurologist well-versed in the intricacies of global health.

Dr. James Christopher Johnston was honored for his paper on this subject with the Davies Award for Public Health.  He dedicated this inaugural award to Dr. Zebenigus and the Ethiopian team.

In terms of disclosure, Drs. Zebenigus and Johnston are Directors of the non-profit organization Global NeuroCare® which focuses on advancing neurological services in sub-Saharan Africa and particularly Ethiopia.  Dr. Johnston serves as an Honorary Professor of Neurology at Addis Ababa University in Ethiopia.

GLOBAL NEUROLOGY REPORT: A CRITIQUE OF ELECTRONIC FETAL MONITORING

 

The Surgery Journal recently published a peer reviewed critique of electronic fetal monitoring (EFM) by neurologist James C. Johnston, MD, JD and leading healthcare attorney Thomas P. Sartwelle.

These authors, Thomas P. Sartwelle and Dr. James C. Johnston, along with pre-eminent medical ethicist Professor Dr. Berna Arda, have repeatedly advised that continuous EFM should not be performed in routine labour due to a 99.8% false positive rate, and the fact it does not predict or prevent cerebral palsy or any other neonatal neurological injury.

EFM does increase the caesarean section rate, with an increase in maternal and newborn deaths and birth complications as well as devastating long term complications. In fact, these very concerns have led Australia, New Zealand and the UK to advise returning to intermittent auscultation (IA) instead of EFM, and in 2017 the American College of Obstetrics and Gynecology finally provided a long overdue recommendation that women be given an informed choice between IA and EFM.

Unfortunately, there are EFM apologists continuing to defend the procedure, and journal editors suppressing scientific debate on the topic. This most recent Surgery Journal article exposes one example of these harmful practices, and should raise serious questions about those EFM proponents recommending a procedure that causes more harm than good to mothers and babies alike. But perhaps the more disturbing aspect is a medical journal editor determined to stifle scholarly debate.

This open access article is available through the following link:

https://www.thieme-connect.com/products/ejournals/abstract/10.1055/s-0038-1632404

The authors have also published their concerns in the Journal of Child Neurology, Maternal Fetal and Neonatal Medicine, British Medical Journal, Neurologic Clinics, Journal of Pediatric Care, Maternal Health Neonatology and Perinatology, Medical Law International, Surgery Journal and several other journals and books. These articles are available at James C. Johnston’s ResearchGate.net site:

https://www.researchgate.net/profile/James_Johnston6/contributions

Electronic Fetal Monitoring and CP

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Dr. James C. Johnston is the founding partner of Global Neurology and Director of the non-profit organization Global NeuroCare. As a board-certified neurologist with thirty years of experience, Dr. James C. Johnston has authored over one hundred peer reviewed journal articles, papers and book chapters on various topics related to neurology and global health including cerebral palsy (CP).

The high rate of CP in developing nations has led many of these regions to seek electronic fetal monitoring (EFM) as a means of reducing perinatal mortality and morbidity. However, EFM is an ineffective modality with a 99% false positive rate, and does not predict cerebral palsy, acidemia, neonatal neurological injury, stillbirths or neonatal encephalopathy. It does increase the C-section rate and is a significant source of harm to mothers and babies.

Despite 50 years of continuous use of EFM, the cerebral palsy rate and rate of other neurological birth related maladies remains unchanged. Continuous EFM should not be used in normal pregnancies, especially in developing regions where it will waste money that is so desperately needed for prenatal and post-partum care for mothers and babies, and add another layer of undesirable morbidity and mortality to an already critical situation.

Dr. James C. Johnston and his colleagues have published a number of peer reviewed articles concerning EFM and CP. They have discussed CP litigation in the Journal of Child Neurology; ethical concerns related to EFM in Maternal Health, Neonatology and Perinatology; review of the Task Force failure to address this problem in J Maternal Fetal and Neonatal Medicine; the history of EFM and medical training for EFM in separate articles in the Surgery Journal; and some of the legal and ethical concerns in Medical Law International.

J of Child Neurology: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4431995/

Maternal Health, Neonatology and Perinatology: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5697350/

J Maternal, Fetal and Neonatal Medicine: https://www.ncbi.nlm.nih.gov/pubmed/26067269

Surgery Journal: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5530627/

Surgery Journal: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5553489/

Medical Law International: http://journals.sagepub.com/doi/abs/10.1177/0968533217704883

These and related articles are also available through Researchgate.net at https://www.researchgate.net/profile/James_Johnston6.