KevinMD.com speaks out on medical malpractice and its lack of effect on patient safety

This post was authored by Brian Nash and posted to The Eye Opener on December 7th, 2010.

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Last week, Dr. Kevin Pho (KevinMD.com), posted a blog entitled The Malpractice System Doesn’t Improve Patient Safety. When I saw the posting that morning, I felt compelled to write a counter piece, which I did later that day.

I next wrote a comment on KevinMD.com’s page: “… I have posted a full reply via a blog that I invite you to read and comment on if and as you see fit:http://bit.ly/i5ophd. These are complex issues that do deserve an “open discussion.”

Later that day, Dr. Pho emailed me that he would take a look, which he did. What followed was a series of communications that led to our agreeing to cross-post these blogs so that our respective readers could view and comment on the role, if any, medical malpractice cases play in improving patient safety.

Dr. Pho (KevinMD) is an ardent believer in a no-fault system, rather than our current adversarial system. While I somewhat admire in principle the concept of such a no fault system, it has never taken root in this country on any large scale basis, yet medical malpractice goes on at an alarming rate every day.

Dr. Pho and I are cross-posting in an effort to have that “open discussion.” To that end, I present to you Dr. Kevin Pho’s original blog:

The Malpractice System Doesn’t Improve Patient Safety

RE-POST. To see this original blog post by Kevin Pho, please see http://www.kevinmd.com/blog/2010/11/malpractice-system-improve-patient-safety.html#more-49306


Dr. Kevin Pho

Dr. Kevin Pho

There has been significant media attention on a New England Journal of Medicine case report where a surgeon, Massachusetts General Hospital’s David Ring, described how he operated on the wrong hand of a patient.

Here’s a summary of the case:

Ring, along with colleagues at Massachusetts General and Harvard Medical School, detailed the series of missteps that led to the wrong operation in the patient whose ring finger on her left hand was stiff, painful and sometimes got stuck in a flexed position, a condition known as “trigger finger.”

The patient, a Caribbean native who spoke only Spanish, was the last operation on a day that included three major surgeries and three minor surgeries, Ring wrote. No interpreter was available, so Ring, who speaks Spanish, was asked to translate for her.

Stress was high because several other surgeons were behind schedule. As a result, the patient was moved to a different operating room at the last minute, with different staff, including the nurse who had performed the pre-operative assessment.

Ring spoke to her in Spanish, which was mistakenly interpreted by a nurse in the room as a “time out,” the safety pause for the medical staff aimed at double-checking surgical sites, but no formal check occurred. In addition, there was a change in nursing staff in the middle of the procedure and a bank of clinical computers that diverted nurses’ gazes away from the patient.

In the world of medical error, where the truth is often clouded in secrecy, taking the bold step of publicly describing your mistake is a brave one. Some would say it’s long overdue.

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?

In 2006, then-Senators Hillary Clinton and Barack Obama penned a perspective piece in the NEJM, noting that many errors in medicine were not due to bad doctors intentionally trying to hurt patients, but on system-wide errors — similar to Dr. Ring’s case:

We all know the statistic from the landmark 1999 Institute of Medicine (IOM) report that as many as 98,000 deaths in the United States each year result from medical errors. But the IOM also found that more than 90 percent of these deaths are the result of failed systems and procedures, not the negligence of physicians. Given this finding, we need to shift our response from placing blame on individual providers or health care organizations to developing systems for improving the quality of our patient-safety practices.

The malpractice system does a lousy job to improve patient safety (along with poorly compensating injured patients). The mere fact that the media is making such a big deal about Dr. Ring’s story is a testament to that. It’s that rare.  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.

Kevin Pho is founder and editor of KevinMD.com, also on Facebook, Twitter, and LinkedIn.

Click below to link to Dr. Kevin Pho’s blog:

Kevin Pho's Website

Kevin Pho's Website

Final Note:

I want to thank Dr. Kevin Pho for letting us post this article on our site and thereby opening the discussion to our readers on The Eye Opener. He has been totally gracious in his communications with me on this topic, and I look forward to reading his future posts as I have done so many times in the past. What he and I have agreed to do? Disagree but respectfully so.

Dr. Kevin Pho and I welcome your comments on this issue. Do malpractice cases encourage patient safety? Are they counter-productive to that goal?

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5 Responses to “KevinMD.com speaks out on medical malpractice and its lack of effect on patient safety”

  1. TracyNo Gravatar says:

    I think that malpractice cases do encourage insight, review and increased patient safety. Many times, it is not until something goes wrong that we realize where a fault in the system is.

  2. TheresaNo Gravatar says:

    Medical malpractice is simply one way of identifying the error or series of errors that led to permanent injury or even death of a patient. And yes, it can raise awareness of potential flaws in the system or weaknesses of a particular provider. Is it the be-all, end-all? No. Not that you can put a price on one’s life or one’s livelihood, but the compensation does help ease the financial burden that some families face due to catastrophic injuries.
    As a practicing clinician for 13 years in Emergency Medicine, I have seen good and bad physicians in clinical practice. Peer review is one method of internal review, but it is private and never part of a patient record or public record. So how can it be translated to improve patient safety across the board? It cannot. It is only privy to those sitting on that committee that performs peer review.
    Physicians are humans, and humans make errors. Awareness of the circumstances leading to the error can perhaps lead to changes that bypass those circumstances the next time around, or at least adjust for them. But again, there are some individual physicians who will believe that they did everything right, regardless of the outcome (like the wrong extremity being amputated), and they are resistant to learning or changing anything. So, I say, hit them in the pocket; that might be the only way to give them a reality check!
    I’d like Dr. Pho to honestly say to a patient who had the wrong eye removed because of a retinal tumor (still has to have the affected eye removed) that he or she will now be permanently blind and never see the sunrise again because of the error (instead of having monocular vision and seeing) that there is nothing we can do to compensate for that injury since we don’t believe in medical malpractice settlements!

  3. Kevin PhoNo Gravatar says:

    Thanks for the cross-post.

    I’d like to point out that the current malpractice system does a lousy job in compensating legitimately injured patients.

    I wrote a USA Today op-ed earlier this year on the issue, which I invite you to read:

    “But what’s overlooked in this argument is that the current liability system often does injured patients a disservice. And that’s the most important reason why medical malpractice reform is needed.

    A study from The New England Journal of Medicine provides stark insight. Researchers found that nearly one in six cases involving patients injured from medical errors received no payment. For patients who did receive compensation, they waited an average of five years before their case was decided, with one-third of claims requiring six years or more to resolve. These are long waits for patients and their families, who are forced to endure the uncertainty of whether they will be compensated or not.

    And with 54 cents of every dollar injured patients receive used to pay legal and administrative fees, the overhead costs clearly do not justify this level of inefficiency.”

    http://www.kevinmd.com/blog/2009/11/oped-injured-patients-deserve-medical-malpractice-reform.html

  4. Brian NashNo Gravatar says:

    Dr. Pho, appreciate your commenting here. My pleasure on the cross-post and thanks to you for the opportunity to post on your site – http://www.kevinmd.com/blog/2010/12/open-dialogue-medical-malpractice-patient-safety.html. I must say, the comments have been most interesting. As of this morning, there are 50 comments; I owe several of your readers a reply. (It has almost become a full time job!).

    I’m not defending the defects in the current liability system. They are many and certainly do create an injustice for injured victims of medical malpractice. A treatise addressing those defects would be more in order than a short reply, but that’s for another day.

    I will gladly review your op-ed and comment separately. I’ll be most interested to see the raw data, if it exists, behind the statement that “nearly one in six cases involving patients injured from medical errors received no payment.” More on that at a later point in time. Thank you for bringing this article to my attention.

    The “average…five year” wait before a case is decided is absurd but correctable. In the early days of my practice (the latter 1970′s), I encountered the same dismal waiting period in the courts in which I practiced. We were using a general (no judge assigned) docket, where it was purely the luck of the draw on your trial date if you ever saw the inside of a courtroom. You would appear time after time sitting in the assignment office praying that today was YOUR day.

    As the years went by, complex cases (such as medical malpractice) were then assigned to a specialized calendar. This meant that when you had a trial date, barring unforeseen circumstances, you went to trial that day. As more years passed, many of the courts (e.g. Superior Court in the District of Columbia) went to an assigned judge calendar whereby all cases had a judge assigned. You received a scheduling order that meant something, a pretrial and trial date, which you could essentially count on being enforced. Now, in DC Superior Court (and other courts such as the Circuit Court for Baltimore City, Prince George’s County, MD, and others – but not all), you can usually have your case heard in 18 – 24 months (usually the former) from the date of filing. This has had a dramatic impact on cost-savings (e.g. not having the pay for your experts to appear or hold dates for 2, 3 or 4 different trial dates being the biggest), efficiency in the system and having injured parties and the healthcare provider defendants have resolution of the case in a meaningful time frame.

    Why this is not a universal system baffles me, quite frankly.Can you imagine, Dr. Pho, the enormous dollars saved by simply instilling this practical assignment calendar nationwide.

    The 54 cents on the dollar is another major topic. One that frankly is one of my biggest pet peeves. I personally believe it is outrageous for lawyers to charge a client 50% contingency fees – no, that’s not a typo. Someday perhaps you and I can have a meaningful discussion on the topic of contingency fees. Many lawyers it appears charge a fixed 40% contingency fee (notice how we’re getting close to the 54 cents/dollar figure?). We use a graduated contingency fee. If the case can be resolved at a point prior to trial (when costs and time are reasonable), then we charge a lesser percentage, which does increase if we are required to try the case.

    On the costs issue (again – I’ll have to read the NEJM study to understand the definition of “administrative costs”), this is a major problem with the system. The largest cost by far is that of expert witnesses. Yes, the medical experts required to present a prima facie case. There are experts who demand $2,500 for a deposition for the first 2 hours; some even higher. We are faced every day with experts charging $500, $750 and some $1,000 per hour for simply reviewing medical records. Needless to say, there are others who are very reasonable in their charges, but that number seems to be dwindling. Week after week I get invoices for more than $5,000 from expert after expert – and we haven’t even gotten close to them giving a deposition! Complex cases have many medical records as you can imagine – large records generate huge expert fees from multiple specialty experts. What are we to do? You can’t compromise a case but not hiring quality experts – but the cost would choke a horse (as the saying goes). Being an expert witness has become a very lucrative cottage industry; it is also a very large reason for the patient receiving $.54/dollar.

    These men and women who are willing to testify serve a very important function and I don’t mean to sound ungrateful for their invaluable service. That being said, I doubt the public realizes that the costs in a medical malpractice case probably average (if a case goes to trial) between $100,000 – $150,000. That’s not the attorney’s fees – that’s the “administrative costs.”

    For my final comment for now (OK, you did get me going – this is a topic I get somewhat out of control on), what irritates me beyond belief and what drives me to write so much on this topic is the scenario where I know, the defense knows, the insurer knows – it’s plain as day – that there is liability in a case. That being said, the case rumbles along because the insurer or the institution simply won’t take the time to confront head-on and in timely fashion the issue of payment for true malpractice. Time passes needlessly. Enormous sums of money – on both sides of the case – are simply wasted. Dr. Pho, I really wish I had a figure for this waste. If I use my practice as a microcosm on this topic, I can easily say that this must be a staggering figure. Now, most cases take this path. It is outrageous. If you wonder why I am open-minded to some variant of no-fault, the University of Michigan Health System approach or why I engaged in this fascinating posting between us, it is in large part because of my sincere belief that you and I – philosophically – are on the same mission. It IS about the patient. I don’t care if some of the author’s of comments believe this is all about money when it comes to the plaintiff malpractice bar. This debate brings raw emotions for a variety of reasons.

    What I do know is that my belief and principles of who comes first are sound, ethical and steadfast. It is all about the patient. It hurts me personally to have to decline cases for purely economic reasons. Many people have very valid complaints and meritorious cases. We just can take them for economic reasons. How can I justify charging a client a percentage of recovery (and I’m in the modest range, believe me!), know that they will incur $100,000 or better in costs and their case is worth $100,00 – $150,000 or even less. That is simply not a viable option for them or me. It’s not right. It is abjectly frustrating. It’s not because I own a villa in the South of France (which I don’t) or need to have gold fixtures in my bathroom (which I don’t). I do employ a number of people, who need to be paid. I have experts who must be paid, I have overhead that would make most doctors in private practice thrilled with theirs by comparison.

    This is a system that desperately needs fixing. Super liens from Medicare, Medicaid are making it almost impossible to represent those victims of malpractice. (That’s another topic for another day.) I readily agree with you – let’s get the system fixed. What will not get it fixed is the vitriolic exchange between your profession and mine. We’re looking worse than the Republicans and Democrats in terms of unwillingness to discuss rationally “meaningful change.” Read some of the comments written on my cross-posted blog on your site if you haven’t done so. I’m almost beginning to give up hope that there will ever be meaningful dialogue -the passions run so deep on both sides. Who suffers? The patient. You know this; I know it.

    Perhaps – just perhaps – if people like you and I can keep the discussion out there and alive, some sense of WHO this is really about will take hold.

    Again, thanks for your comment. I’ll get down off my soapbox now and get back over to your sight to respond to a few other of your profession who don’t seem to like lawyers very much (smile)!

  5. A thoroughly interesting and soundly ethical critique on medical malpractce and patient safety issues. A must read for all concerned. Thank you for this enlightening read and do keep your soapbox at the ready.

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