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Killer Care: How Medical Error Became America's Third Leading Cause of Death

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The following is an excerpt from “Killer Care: How Medical Error Became America’s Third Largest Cause of Death, and What Can Be Done About It,” by James B. Lieber (OR Books, 2015).

In the fourth quarter of the twentieth century, a series of medical errors captured public attention and drove change in unprecedented ways. It was a time—perhaps the last time—of powerful investigative media, especially daily newspapers that combed courthouses for stories of medical malpractice and did not simply report initial filings or final verdicts. Moreover, the victims, their families, and advocates exhibited a newfound tenacity in terms that went beyond their own struggles and spread into a quest for broader deterrence and reform. Inside health care, these epic battles are known as the “mediagenic cases.”

Ironically, the cases that changed medicine—and finally riveted the nation’s attention on medical error—sometimes involved journalists. The first was Sidney Zion, a swaggering New York Daily News columnist and former federal prosecutor known for exposés of the mob, a biography of McCarthy-era lawyer Roy Cohn, and for revealing the identity of Daniel Ellsberg, who covertly released the Pentagon Papers to the New York Times and Washington Post.

On Sunday evening, March 4, 1984, his eighteen-year-old daughter Libby, a Bennington College freshman with a mass of dark curls, taxied to the emergency room at well-regarded New York Hospital on Manhattan’s Upper East Side. Her symptoms included a 102-degree fever and mysterious jerking movements. In recent days Libby, who was doing a work-study project in city government, had had a tooth extracted and a cold. She had prescriptions for antibiotics and Percodan for pain. Since January, she had taken Nardil for depression.

The two physicians on duty, Dr. Luise Weinstein (an intern who had graduated from medical school eight months before) and Dr. Gregg Stone (a second-year resident), also covered forty other patients. After consulting with the Zion family physician, Dr. Raymond Sherman, they admitted the young woman for hydration and observation. Libby was not entirely coherent and received a loose provisional diagnosis of “viral syndrome with hysterical symptoms.” With Sherman’s approval, the trainee doctors ordered an injection of meperidine, an opiate sedative, to try to quell her jerking. Then the intern and resident intermittently spent about two hours with her, until Stone went across the street to the hospital’s sleeping quarters to nap. Weinstein concentrated on the other patients. Around three in the morning, a nurse called her to report that Libby was trying to yank her tubes out. Weinstein ordered restraints and a shot of haloperidol, an antipsychotic. Libby slept, but at dawn her fever surged to 107 degrees, she went into cardiac arrest, and died.

Weinstein called the family. She and the hospital took the position that the young woman had a “bad outcome” from a strange and unknown infection. Soon it became known that mixing the dying woman’s antidepressant Nardil (phenelzine) with Demerol (meperidine hydrochloride, an anti-spasmodic and painkiller) could trigger a fatal drug interaction.

Sidney Zion’s rage was towering, his grief bottomless, and his connections legendary. “Murder” was how he described his daughter’s demise: “They gave her a drug that was destined to kill her, then ignored her except to tie her down like a dog.” He lacerated the venerable hospital for the hazing of residents that forced them to work for days at a clip and sometimes over a hundred hours per week. “You don’t need kindergarten,” he inveighed in a New York Times op-ed piece, “to know that a resident working a 36-hour shift is in no condition to make any kind of judgment call—forget about life and death.”

Zion implored his friend, Manhattan District Attorney Robert M. Morgenthau, to indict the hospital and doctors for homicide. In 1986, Morgenthau convened a grand jury. It failed to indict for homicide, but issued an extraordinary report—truly a seminal document in the fight against medical errors—scoring “the supervision of interns and residents in New York County.”Although it failed to find probable cause for homicide, the grand jury charged a host of errors ranging from callously prescribing interactive drugs to not ordering necessary tests. Under New York’s labyrinthine procedure, these allegations shuttled to the State Board for Professional Medical Conduct, which held thirty hearings before passing the ball to the Board of Regents, which censured the family doctor, resident, and intern for gross negligence, but did not lift their licenses to practice. The hospital paid a $13,000 fine for inadequate care.

Profoundly dissatisfied, Zion and his wife Elsa, a former publishing executive and New York City elder care manager, redoubled their drive for justice and reforms. They engaged four lawyers and filed a lawsuit for malpractice and wrongful death against the hospital and its doctors that ran for almost three months in the winter of 1994-1995 and was covered by Court TV. The defense hammered the victim. Dead for a decade, Libby could not rebut claims of cocaine use. The court found Sherman, Stone, and Weinstein liable, cleared the hospital, and returned a modest judgment to the Zions of $375,000 for pain and suffering, $1 for wrongful death, and zero for punitive damages.

For the Zions, it was a bitter disappointment. Once malpractice cases go to trial, only about 2 to 5 percent result in verdicts against physicians, so the Zions had beaten the odds. Clearly the compensation had not worked out. It amounted to a paltry fraction of the worth of the dead woman’s normal remaining adult life. The blame-the-victim strategy had succeeded as often occurs in preventing the deceased from being made whole or even from receiving a credible compromise. At the interface of medicine and law, justice often gets lost.

But the Zions pressed on, working for changes in the law and keeping the issues of overworked, undisciplined, and poorly-supervised junior physicians in the spotlight. TV’s 60 Minutes ran a segment on the problem. A fatigued resident, up for days, seemed to have trouble following much less answering Mike Wallace’s crisp questioning. An audience of millions probably wondered how such a spent drone possibly could cope with a medical emergency.

Libby Zion’s case continued to percolate through the state medical bureaucracy. Instead of ignoring the grand jury report as expected, New York State Health Commissioner David Axelrod appointed a reform panel under Bertram Bell, M.D., a professor at Albert Einstein College of Medicine in the Bronx and a critic of the lack of quality control in hospitals, particularly the grueling hours and lack of supervision of residents.

The Bell Commission report recommended limiting residents’ hours to 80 per week. Shifts no longer should exceed twenty-four hours. The report recommended guaranteeing the presence of senior supervising physicians inside the hospital at all times, and the ability of fatigued residents to be relieved of duty upon request without consequences, in effect giving them the same rights a sick or tired airline pilot had not to fly. On July 1, 1989, the Bell Commission provisions were enacted as Section 405 of the New York State Health Code. Better known as the Libby Zion Law, Section 405 was replicated nationally when it was embraced by the Accreditation Counsel for Graduate Medical Education (ACGME), the private body that regulates, sanctions, polices, opens, expands, contracts, and occasionally closes residency programs in American hospitals. Initially, the Zion law met with resistance. Hidebound elements in the profession believed that sleep deprivation and hospital hazing built hardier doctors. With reduced hours and more supervision, the open secret of underpaid residents as profit centers covering too many patients came under siege, as did the establishment’s cherished view that it was somehow critical for a single resident to follow a newly admitted patient through the first thirty-six hours in the hospital. Of course this was mainly nonsense. Residents had been assigned so many patients they were unable to give everyone adequate care.

James B. Lieber

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