The rate of medical errors increases with physician fatigue, which should be no surprise to anyone. But a recent study published in the Journal of the American Medical Association (JAMA) reporting on the type of errors that occur with fatigue is surprising. The article reports that prescription of unnecessary antibiotics increased with each hour that a doctor was working. For example, compared with the first hour of office visits, the fourth hour saw roughly a 25% increase in antibiotic prescribing.
We have long known that fatigued residents make more mistakes. But this study confirms that the risk of medical errors affects all physicians, even when doing common tasks like prescribing antibiotics. The study concludes that “decision fatigue progressively impairs clinicians’ ability to resist ordering inappropriate treatments.”
Under Ohio law, when pursuing a medical negligence lawsuit, it is not necessary to prove the motivation behind an act of medical negligence. In other words, a plaintiff need not prove that the doctor was fatigued, drunk, incompetent or otherwise impaired. The plaintiff need only prove that the doctor’s care deviated from acceptable standards of care. In practice, however, this is often difficult to do. Physician groups, like the American College of Obstetrics and Gynecology, go out of their way to avoid publishing practice standards that their physician members can be held to in a court of law.
So how would an Ohio medical malpractice attorney prove what standard of care applies? First and foremost, Ohio law requires the plaintiff to establish the standard of care through expert testimony. Thus, if the case involves, for example, a bowel perforation caused during an abdominal surgery, we would consult a general surgeon who performs abdominal surgeries to determine what standard of care applies. That is usually not enough, however. The defense, fueled by big insurance dollars and endless resources, will inevitably find a big name expert to argue that a different, lesser standard of care applies.
So, in addition to expert testimony, it is often necessary to show jurors medical literature that explains why the plaintiff’s expert’s testimony is more safe, reasonable and accepted, than the bogus standard of care laid out by the defense expert. In addition, we would scour the defense expert’s past courtroom testimony for inconsistent statements.
Of course, it would be nice to find evidence that the doctor was impaired in some manner, which led to the medical errors at issue in a particular case. But that is rarely possible. Doctors and hospitals, practicing in a culture of secrecy, are very good at hiding such information.
