Malpractice System Doesn’t Improve Patient Safety – Oh, Really?

This post was authored by Brian Nash and posted to The Eye Opener on November 30th, 2010.

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When I woke this morning, I was trying to think of some good subjects for a blog. Writer’s block – or topic block – struck. With some draft posts sitting in my WordPress queue, I gave thought to putting the final touches on one, but it was just not ready. Still stuck, I headed for Google Reader, and there it was – a posting by KevinMD.com on MedPageToday entitled “The malpractice system doesn’t improve patient safety.” Problem solved. Topic served on a platter. Thanks, Dr. Kevin!

Dr. Kevin (Kevin Pho, M.D.) has been a source of inspiration on more than one occasion. I’ll give it to him – he writes on matters that are “controversial” and many times has the “call to action” concept of blogging down to a science. So here’s my return “call to action.”

Dr. Kevin’s Argument

In his blog, Dr. Kevin acknowledges that in the “world of medical error, truth is often clouded in secrecy.” He then points out that “…taking the bold step of publicly describing your mistake is a brave one. Some would say it’s long overdue.” Well so far, Dr. K, we’re on the same track!

He then poses the question:

There have been studies that show an apology and admission of error lead to a lower rate of being sued. Beyond the malpractice implications, it’s simply the right thing to do. So, why isn’t it happening more often?

Dr. Kevin then provides a commentary by Hillary Clinton and Barack Obama in a perspective they “penned” in 2006 in The New England Journal of Medicine to the effect that “many errors in medicine are not due to bad doctors intentionally trying to hurt patients, but on system-wide errors…”

I’m wondering if Dr. Kevin appreciates the difference between the concepts of negligence and intentional tort? If there are physicians intentionally trying to hurt patients, we have a bigger problem on our hands than I ever realized. Whose conduct leads to “system-wide errors”? Answer: the health care providers and administrators of health care facilities whose acts of omission or commission create such system-wide errors and/or permit them to exist.

After citing the now famous statistics of the 1999 Institute of Medicine (IOM) report that told the public that “as many as 98,000 deaths in the United States result of failed system and procedures,” Dr. Kevin then gets to the root cause analysis of his polemic:

The malpractice system does a lousy job to improve patient safety (along with poorly compensating injured patients). * * * Every error should be discussed in the open, used to improve the care of our patients, and reduce the risk of future mistakes.

The fact that that’s not happening can be chalked up to the adversarial nature of our flawed malpractice system, which encourages secrecy, suppresses apologies, and does little to improve patient safety.

Well, Dr. Kevin, you and I now go different paths.

Open Discussion To Improve Patient Safety

So exactly what is this system in place to have an “open discussion to improve patient safety,” Dr. Kevin? Physicians have had a system of policing themselves for a long, long time. I believe you call it peer review. If this system is so effective, why, after decades of having an “open discussion” (that is done in secrecy, by the way) do 98,000 deaths occur in this country annually. The IOM report was ostensibly designed to create a reporting system of errors to identify, analyze and correct these so-called “system-wide errors.” Interestingly, I haven’t seen an update on just how the death rate has decreased in the last eleven  years! It’s a great concept but only as good as its implementation. Are deaths, catastrophic injuries, life-altering errors still occurring at an alarming rate? Oh, I suspect so – based on the number of calls our firm gets from people whose lives have been turned upside down after suffering from bad medical care.

The indisputable theme of Dr. Kevin’s post is that the reasons  patient safety has not improved at an acceptable rate is because of the media (e.g. in its unfair and hyped coverage of “Dr. Ring’s story” ) and “to the adversarial nature of a flawed malpractice system, which encourages secrecy, suppresses apologies, and does little to improve patient safety.”

Really? Let’s take a look at the reasons Dr. Kevin espouses.

Encourages Secrecy

The last time I checked, which was yesterday unless something happened after I left work last night, lawsuits are played out in public forums. Where do you conduct peer review, Dr. Kevin? What laws do you have that make the investigations of those peer review sessions not discoverable in lawsuits? In a lawsuit, both sides get to put it out there in public. Seems to me that a bit more of an “open discussion” than your self-policing, which, by the way, doesn’t seem to have done a great job of improving patient safety.

I fully understand the concept behind the protections of peer review. In essence, the protections are premised on the belief that if peer review is not protected from disclosure, an honest, open assessment of care rendered (for improvement in care) will not take place. What I don’t understand is why, when one’s peers find fault, a health care provider and/or the insurer simply fight to the bitter costly end of litigation in order to prove their peers wrong. Have you done an analysis on the costs associated with defending medical malpractice cases where the care is outright poor? I’ll bet that’s an astounding figure. Maybe correction on that score would improve the cost of medical care.

Suppresses Apologies

I suspect what the good doctor is referring to is the concept that if a physician apologizes for his/her malpractice, this might be used against him/her in a court of law as an admission against interest. Well, Dr. Kevin, have you been keeping track of the legislative proposals that would make such “admissions” – inadmissible? I might suggest that the medical profession spend time advocating for that legislative change rather than condemning the “flawed malpractice system” I would also invite attention to the programs that are apparently still in their infant stages whereby hospitals and health care systems do admit fault and seek early case resolution. Query: just how well have these taken off? Seems like this is a good idea – in theory. Any particular reason the medical profession hasn’t embraced the concept nationwide? While cogitating on that issue, perhaps some can also share their thoughts on why it is that the care givers think about the legal implications first when they are meeting with a family whose lives have been devastated by outright negligence. I believe it is you, Dr. Kevin, who writes blogs about physicians being patient advocates. Is this just another theoretical concept that your colleagues have a hard time putting into action? Just a tip – there are ways to apologize and have such apologies remain inadmissible in a court of law. Perhaps you ought to check those out and share them with your colleagues who are standing in line to apologize for their malpractice. Just a hint: confidential, early intervention proceedings. They would go a long way with the families whose lives have been ruined. But…does the medical community really need protection to just admit malpractice has occurred – when it has? Apparently so… Oh, I forgot, it’s the flawed malpractice system and the press, not the basic integrity of the health care provider, that are the root causes of the problem.

Does Little to Improve Patient Safety

I respectfully disagree, Dr. Kevin. Are you suggesting that when a meritorious lawsuit is brought that it doesn’t make at least those involved more aware? Do you accept the proposition that such health care providers might make better decisions/judgments when faced with a similar clinical situation?

Having previously represented physicians and health care institutions for decades before representing the victims of medical malpractice, let me assure you that the message does resonate with many, if not most, defendants in a medical malpractice case.

Interestingly, it has also affected those who are not directly involved. Do you really think that verdicts in cases aren’t discussed by other health care providers? Do you really believe that when bad care has occurred and has seriously injured someone that colleagues haven’t paused and self-examined their own practices – hopefully not repeating the same mistake(s)? I refuse to believe that so-called physician hubris is really that bad? In fact, my extensive experience with physicians has led me to believe that there lives are dedicated to doing the right thing for their patients, which could well include self-analysis of prior conduct.

There are so many excellent, dedicated health care providers who do take stock of the practices of others played out in litigation and change their own practices. I have personally witnessed dedicated, caring health care administrators and risk managers undertaking “root cause analyses” to correct system failures. Many, many times the genesis of these analyses are medical malpractice cases they have had to confront.

I am constantly being told by expert witnesses on both sides of litigation that they have learned so much about practice issues and patterns that it has helped them improve their own practices for the betterment of patient safety. Maybe they were all just making this up, but I think not!

Permit me to share another piece of information. One of the primary motivations – at least for our clients – for bringing a lawsuit is not about money – it’s about the client’s hope that some other patient won’t suffer the same fate they did. Others just want to know what happened. Maybe if the medical profession were to adopt a policy of honesty, open discussion and willingness to admit fault when it occurs, there would be fewer lawsuits and improvement in patient safety.

That really is what it’s all about, Dr. Kevin. Believe what  you want; however, practice what you preach: be a patient advocate.

An Invitation for an “Open Discussion”

Dr. Kevin, your posts and those of  your guest bloggers have been applauded by me and many others for a long time. They are thought-provoking, well written and – yes – many times controversial. As you know, one of the hallmarks of a good blog post is a call to action. Well – here’s my call to action.

Perhaps a public airing of some of the key issues relating to the malpractice system (which is flawed in a number of respects) and the health care system (which is not free of its own flaws) would lead to improvement in patient safety and the betterment of both systems. You and your readers just might be surprised as to how many things there are about which we might agree. There is no doubt that we may have to agree to disagree, but maybe – just maybe – a public airing of these issues will have the same result – true improvement in both systems.

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5 Responses to “Malpractice System Doesn’t Improve Patient Safety – Oh, Really?”

  1. [...] This post was mentioned on Twitter by Rachel, Brian Nash. Brian Nash said: New Blog: A Reply to "Medical Malpractice System Doesn't Improve Patient Safety" by KevinMD.com – Oh Really? http://fb.me/BIDYeTGE [...]

  2. christyNo Gravatar says:

    I know to well about the “good old boys club” and it does exist. I’ve witnessed it. I’ve done that and been there. If medical doctors go into this field with good intentions and genuinely care about the human race, why is it then they don’t listen to us. There are good docs and there are bad docs. My child I found out later died at the hands of a bad doc. The good docs are skeptical about speaking up because they could very well be blackballed. In my childs situation time was nor on our side, otherwise I would have seeked out a more knowlegable physician. I’m not alone on this matter I’vebeen in touch with other parents who feel
    ike we do. There is much room for improvement on this subject. My child’s condition was a medical emergency but was not treated as such.

  3. Brian NashNo Gravatar says:

    First, Christy, I cannot express how sorry I am about the loss of your child. I hope you are doing well or as well as you can be given this tragedy.

    You talk about the “good old boys club.” When I first started doing medical malpractice work, we had a term – “the gauze curtain.” This essentially meant that you just weren’t going to get a physician to comment on or criticize the care of another physician. It just wasn’t acceptable and yes, there was apparently the fear of being blackballed. Finding physicians who would step-up and give their honest assessment of another doctor’s care was – and remains – a chore.

    As more physicians were willing to do this (i.e. criticize by giving expert opinions against another physician), new “silencing” tactics came into play. A ton of money was spent trying to build dossiers on these experts so that they could be attacked and belittled in a deposition or court.

    Next came a new technique where the defense lawyers would go after the financial records (including those of a physician-expert’s spouse) to get the expert to back-off and back-out of testifying against another physician.

    We are now in an era where – in addition to the above measures – people in administration at a hospital where an expert for a plaintiff works will “drop by” for a “chat” and voice their concerns about Dr. X testifying against another doctor. Some hospitals have actually passed rules prohibiting their physicians from testifying at all. So – if you want to work here – you’re not testifying for a plaintiff.

    One of the newer approaches (really started a number of years ago but growing in “popularity”) is the actions being taken by national organizations against their member physicians who have the courage to testify against other members. Say, for example, Dr. Jones is a member of a national organization for a certain specialty. Dr. Jones agrees to testify that the care of Dr. Smith was substandard. Turns out Dr. Smith is a member of the same organization. The case goes forward, Smith complains about Jones, sends his testimony to the organization and the “investigation” of Jones takes place. Then, if adverse action is taken against Jones, this becomes a new weapon by defense lawyers in court when they ask – isn’t it a fact you were thrown-out of the national organization in your specialty? How do you think that looks to jurors.

    The “gauze curtain” remains in place after all these years I’ve been doing this. Fortunately, there are more and more honest, forthright physicians with integrity who are willing to review cases and give their honest opinion on quality of care issues. I should add – they don’t just tell us what we want to hear – they simply call it like it is. That’s really all we want from them anyway. If we have a meritorious case – fine; we proceed. If we don’t but can at least tell the family what we learned about what led to the injury/death of a loved one – then that’s of great value to.

    What the public doesn’t realize is that the usual “decline” rate of lawyers who know what they’re doing in the field of medical malpractice is somewhere between 95 – 97% of all contacts we receive. There are numerous factors that go into the assessment of a case. We don’t just sit by our phones waiting for someone to call so we can rush out and file a lawsuit against a health care provider. A good deal of time, effort and money is spent analyzing which cases are meritorious. We (and others like our firm) don’t ever want to put a family through the rigors of a lawsuit that is not meritorious. Think about it – after a person suffers a devastating injury or loss of a loved one, do they really need to re-live that experience in a lawsuit and have a bad outcome? I can happen – but the chances of it happening – if you properly evaluate a case and have quality expert review to support your case – are dramatically minimized. This is precisely why I applaud physicians, nurses and allied health care providers who have the courage to speak up and criticize bad care when it exists. We have been fortunate to know a number of highly qualified experts of integrity, who are willing to tell us – the way it is. More health care providers should be willing to do this.

    The mantra among physicians (and which I discuss in the counter-blog to Dr. Kevin’s blog posting) is that they need to become better patient advocates. Amen- then do it! Be honest. When you mess up and destroy someone’s life, have the basic decency to admit you’re human and you made a mistake. If someone else is at fault – then say so. Don’t make the pain that a family has to cope with worse but hiding the truth about what happened.

    I really appreciate your sharing your thoughts with our readers, Christy. Again – I truly am sorry for the loss of your child. I wish you and your family the best in coping with this horrible loss. You’ll never forget your child or what happened, but hopefully, with the passage of time and support from family and friends, old and new, you will all be able to learn to at least cope better with the tremendous hole in your spirit caused by your child’s death. We all wish you the best.

  4. Lee TilsonNo Gravatar says:

    Thanks for your piece.

    I also responded to Dr. Kevin’s arguments. http://www.rethinkingpatientsafety.com/my-blog/2010/12/is-dr-kevin-pho-wwwkevinmdcom-of-medpagetoday-right-does-the-malpractice-system-improve-patient-safe.html

    I will try to post a link to your position.

    Lee Tilson

  5. Brian NashNo Gravatar says:

    Lee – nice post. I recommend to our readers that they take the time to read your piece in response to Dr. Kevin’s article of last week. Well done.

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