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Medical malpractice discovery: what did the witness see?

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Medical malpractice discovery: what did the witness see?

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patient advocates

Advocates may be witnesses to a medical error

Advocates may be witnesses to a medical error. You are a medical malpractice attorney investigating a claim that evolved from a fall during a hospital admission. The patient’s wife said, “I hired an advocate to stay with my husband during his admission. She was in the room when the nurse tried to get my husband out of bed. She saw what happened.”

The need for advocates
What is a patient advocate? An advocate can be a family member, friend, or acquaintance. This person may have received some or no preparation for the role. In short, the advocate acts to protect the safety of the patient and to be his voice when he is unable to speak up.

Why do some patients feel the need for an advocate? Consider what Dr. Jerald Winakur wrote in the journal Health Affairs a few years ago:

“Three years ago, my father, a longtime heart patient, had trouble breathing and complained of chest pain. He was admitted into the hospital with congestive heart failure. This is the hospital in which I have made rounds almost every day for the past three decades. … The CEO is my friend and patient. My father’s physician is one of my young associates, well-trained and eager. I was confident that my father would receive the best medical care he could get in America today.”

He continued: “Yet I would not leave him alone in his hospital room. During the day, if I or my brother or mother could not be there, I had a hired sitter by his bed. . . . It is almost a miracle that any elderly patient gets out of the hospital today relatively unscathed.”

The same could easily be said of younger patients as well.

The role of the advocate

Advocates can help ensure that patients get the correct tests and treatments—the ones the doctor ordered. They can raise the alarm if something seems to be going wrong, but no one appears to be taking the problem seriously enough. They can take notes and help make sure that the right-hand knows what the left hand is doing.

It is best if the patient has a handful of people willing to help. If possible, they should arrange among themselves for one of them to be with the patient all of the time that the hospital allows visitors. Some may be allowed to stay overnight. The ideal advocate is polite, assertive and good with details.

Ideally, the patient and his family would have discussed in advance the plan to have advocates with the patient, and the desire for the advocates to be able to receive information about the patient. The patient will be asked to sign a HIPAA release or waiver. For more information, see “A Patient’s Guide to the HIPAA Privacy Rule: When Health Care Providers May Communicate about You with Your Family, Friends, or Others Involved In Your Care,” at http://www.hhs.gov/ocr/privacy/hipaa/understanding/consumers/consumer_ffg.pdf.

Access to medical record

Some advocates may request the ability to review the medical record. When I was a staff nurse, this kind of request was often viewed with suspicion. Healthcare professionals do not readily share this information, and many worry the patient or family is thinking about a medical malpractice suit. Typically a healthcare provider interprets the chart and stays with the advocate while the person is looking at the medical record. This is done to offer explanations and to also make sure no one writes on or removes the paper from the record.

Electronic medical records make reviewing the record more difficult. There may not be a paper copy of the chart at all, or it is printed on demand.

Returning to the case of the man who fell, your focus as an attorney is on discovering what happened in the room before and after he fell. Here is the information his advocate may have:

1. A notebook with questions, concerns or observations in a notebook used to question a physician or nurse. It may also contain a record of all of the doctors’ orders. This may include medicines, tests, and for other care.
2. Notes from regularly looking at the patient’s medical record with notes about explanations provided by the staff
3. Recollection of discussions with the doctors or the hospital staff about any unmet needs or open questions.
4. Recollection of how the fall occurred

In a perfect world, the advocate would have been able to prevent a fall. However, this did not happen. This person witnessed the event and becomes a valuable source of information.

Modified from material written by Elizabeth L. Bewley who is President & CEO of Pario Health Institute.

Need help figuring out how an error occurred? Our legal nurse consultants work with medical records and attorneys to create chronologies, develop questions for depositions of defendants and suggest items to obtain through discovery. Give us a call. We’re here to help.

 

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