Medical Malpractice: Fiction, Facts and the Future; Part 2

Most malpractice suits are not frivolous. Take a close look at a large sample of claims and you’ll discover that the patient died or suffered a significant disability roughly 80 percent of the time. But when researchers at Harvard’s School of Public Health scrutinized cases involving some 33,000 physicians, 61 acute care hospitals and 428 outpatient facilities nationwide, they discovered that only sixty-three percent of the injuries were caused by medical error or negligence.

In other words, 37 percent of the claims were unfounded. But most plaintiffs had no way of knowing that there was no basis for the suit because once they began to ask questions, both doctors and the hospital clammed up. Traditionally hospital lawyers have told medical personnel that if the patient or his relatives are unhappy with the outcome, don’t say anything. Keep in mind, “anything you say could be used against you in court.”

As a result, the Harvard researchers explained, “our findings underscore how difficult it may be for plaintiffs and their attorneys to discern what has happened before the initiation of a claim and the acquisition of knowledge that comes from the investigations, consultation with experts, and sharing of information that litigation triggers.”

In other words, the only way to find out that you have no reason to sue is by suing—and triggering the costly and time-consuming process of legal “discovery” that will give you access to all of the facts.

As I explained in part 1 of this post, The New York Times recently reported   that a few hospitals are now experimenting with candor: rather than denying, they are revealing what happened, and apologizing. But this violates the received wisdom that a doctor who says “I’m sorry” to a patient will soon find himself saying “I’m sorry” to a jury. And, as some physicians who have been dragged through the process warn, that doctor will never have a chance to explain that while he wishes every day that things had gone differently, the situation was a little more complicated that the plaintiff’s attorney would have you believe...

An article published in Health Affairs just last year warns: “as pressure mounts on physicians and hospitals to disclose adverse outcomes…and medical injuries” they should be aware that the volume of claims would rise and providers should be ready for “the financial consequences.”

This is one reason why U.S. hospitals have long fostered what one survey of hospital executives describes as a “culture of secrecy.”   

It’s not only the fear of malpractice that inspires silence.  Loyalty to fellow doctors makes many physicians reluctant to report sloppy colleagues. After all, everyone makes mistakes. You don’t want to ruin someone’s career. Meanwhile, hospital executives do not like to ruffle the plumage of “rain-makers”—those surgeons who keep an institution’s operating rooms full. Unfortunately, sometimes these stars are subjecting patients to risky procedures without proven benefits. Others may be overseeing too many surgeries simultaneously, cutting corners in a variety of ways –while hospital administrators look the other way.

Misplaced loyalties that put the interests of  colleagues and institutions ahead of the welfare of patients may help explain why doctors who lose or settle malpractice suits are rarely disciplined by their state medical board—or by their hospital.   From 1990 to 2002, according to the National Practitioners’ Databank,  "only 10.7 percent (1,401 of 13,182) of all doctors who made three or more malpractice payouts  were disciplined, while only  16.9 percent (488 of 2,896) of those doctors who made five or more malpractice payouts were disciplined."

These numbers are stunning: they suggest that the vast majority of doctors who either are found guilty or wind up settling one lawsuit after another go right on practicing medicine, without so much as a slap on the wrist.

Of course, not every physician who loses or settles five cases in a dozen years is a bad doctor. Often, insurers insist on a settlement. And even if someone loses a malpractice suit—and indeed has made an error—this does not mean that he or she is incompetent or negligent. A momentary lapse in concentration, one bad judgment call, a missed diagnosis because the doctors initial assumption was wrong—these things happen to the most conscientious physicians.

But, given how rarely patients bring claims (only about 2 percent of those who are the victims of negligence sue), it is difficult to believe that 83 percent of these physicians who lose or settle multiple malpractice suits  are, in fact, practicing safe, patient-centered medicine. It seems perfectly plausible that some of them are—particularly in specialties like Ob/Gyn or Neurology. But 83 percent?

It’s also worth noting that physicians who are sued tend to be doctors that the patient never liked in the first place. “Cold,” “arrogant,” and “impatient” are words patients use when talking about doctors they take to court. At the very least, doctors who are sued frequently may need some collegial intervention, support and counseling. 

Courts are Not Stacked Against Physicians

Not only are doctors rarely disciplined, even when found guilty of malpractice, their chances of winning the cases are greater than a patient’s. According to the conventional wisdom, emotional juries tend to side with patients over doctors. But the same very large study by Harvard’s School of Public Health reveals that outcomes are fairer than the received wisdom suggests. When researchers who are themselves doctors reviewed the cases they found that when the bad outcome was, indeed, due to negligence or medical error, patients received a payment only 73 percent of the time.  Meanwhile, in cases where they saw no evidence of medical error, a payment was made only 10 percent of the time. This makes it all the harder to believe that in the vast majority of cases where the insurer made payments the doctors were blameless.

But wait a minute—how did the researchers determine that doctors had, in fact, erred? In the Harvard study reviews were conducted by board-certified physicians, fellows, or final-year residents in surgery (for surgery claims), obstetrics (for obstetrics claims), and internal medicine (for diagnosis and medication claims). Reviews lasted 1.6 hours per file on average and were conducted by one reviewer. To test the reliability of the process, 10 percent of the files were reviewed again by a second reviewer who was unaware of the first review. All reviewers recorded their judgments using a 6-point confidence scale in which a score of 1 indicated little or no evidence that an adverse outcome resulted from one or more errors and a score of 6 indicated virtually certain evidence that an adverse outcome resulted from one or more errors. A score of 4 or more was taken as a sign of error.

Finally, while some who oppose personal injury lawsuits claim that courts are tilted to favor patients, the truth is that in 16 percent of the cases where the reviewers saw error, patients received no compensation.  In sum, when you look at overall outcomes, the system works fairly well, the researchers from Harvard’s School of Public Health concluded: “legitimate claims are being paid, non-legitimate claims are generally not being paid,” and “portraits of a malpractice system that is stricken with frivolous litigation are overblown.”

The Argument for Litigation: It Improves Patient Safety

A 2006 article in the NEJM subtitled “Improving the Quality of Care through Litigation against Hospitals” goes a step further, arguing that the threat of malpractice suits performs a useful function in our health care system. George Annas, who is both an attorney and a public health expert, suggests that hospitals just won’t care enough about the safety issue unless they are sued: “[M]ore liability suits against hospitals may be necessary to motivate hospital boards to take patient safety more seriously.”

Up to a point, he is right: hospitals do not invest enough in patient safety. Too many hospitals pour millions into hotel-like amenities that will bring in wealthy, well-insured patients while investing too little in reducing infections, improving systems and moving to electronic medical records.

Annas then makes an intriguing argument: if we are truly interested in patient safety, he says, we should be suing hospitals, not doctors. “…physicians do not control all possible risks of injury in the hospital setting. Therefore, it is more appropriate to focus on the hospital and to define the scope of the right to safety as a reflection of corporate responsibility…

“Hospitals are responsible for their own negligence under the doctrine of corporate responsibility, which courts have applied directly to hospitals,’ Annas explains. “Although the law usually permits industries and professions to set their own practice standards, courts have also ruled that entire industries and professions can be negligent by failing to adopt new technologies, especially those that are inexpensive and effective.”

He quotes a 1991 ruling from the Pennsylvania Supreme Court:  “ ‘Corporate negligence is a doctrine under which the hospital is liable if it fails to uphold the proper standard of care owed the patient, which is to ensure the patient's safety and well-being while at the hospital.’ The court also listed four specific examples that previous courts had identified as hospital safety obligations. Annas reports: ‘the maintenance of safe and adequate facilities and equipment, the selection and retention of competent physicians, the oversight of medical practice within the hospital, and the adoption and enforcement of adequate rules and policies to ensure the quality of care for patients.”

This suggests that hospitals have a legal obligation to weed out doctors who are in any way endangering patients. Of course, if the doctor is not on staff, institutions have limited control, but they can revoke privileges to practice at the hospital—even if this means losing a certain amount of business.

Physicians Must Police Themselves

But, Annas concludes, while “the right to safety will have to be implemented by hospital systems . . . physicians will be central to its success.” As a model, he points to  the patient-safety programs that anesthesiologists launched some 25 years ago, responding to liability suits and high rates of medical-malpractice insurance.  As a result, “the risk of death from anesthesia dropped from 1 in 5,000 to about 1 in 250,000.”

Anesthesiologists set new standards for safety, and began policing themselves—all in response to lawsuits. Other specialties need to do the same. Panels of specialists who do not compete with or collaborate with a physician should be investigating cases where colleagues report that they are alarmed by the way that doctor is practicing medicine. We also need better laws to shield doctors and nurses who report a negligent doctor from being sued by the doctor in question. Finally, specialty groups should be investigating the systems used at hospitals where read-missions and errors are rare.

One can only hope that both specialty groups and hospitals will move to put their own houses in order without waiting for more malpractice suits. After all, while lawsuits may put needed pressure on hospital boards, one-third of physicians sued in the Harvard study were not responsible for the patient’s injury. One needs to recognize the harm done to them as they were dragged through court.  At the same time, two-thirds of the patients were the victims of medical negligence—and in the vast majority of cases, their injuries ranged from “significant disability” to an early death.

We Need a Better Way

In the end, the researchers at Harvard’s school of Public Health make it clear that the idea of “improving the quality of care through litigation” is, at best, an extremely expensive route to rough justice and at worst, a solution that leads to such bitterness on both sides that it can only undermine trust between doctors and patients:

“Any enthusiasm about the [justice] of the malpractice system [in the majority of cases] must be tempered by recognition of its costs. Among the claims we examined, the average time between injury and resolution was five years, and one in three claims took six years or more to resolve. These are long periods for plaintiffs to await decisions about compensation and for defendants to endure the uncertainty, acrimony, and time away from patient care that litigation entails.

“In monetary terms, the system's overhead costs are exorbitant,” the researchers continue. Add up the costs of defending the doctor plus the standard contingency fees charged by plaintiffs' attorneys and you find that the total cost of litigating the claims in the Harvard sample equals 54 percent of the compensation paid to plaintiffs. “The fact that nearly 80 percent of these administrative expenses were absorbed in the resolution of claims that involved harmful errors suggests that moves to combat frivolous litigation will have a limited effect on total costs.” The fact is that most suits are not frivolous.
Thus, they conclude, “Substantial savings depend on reforms that improve the system's efficiency in the handling of reasonable claims for compensation.” 

Letting the Sunlight In

Here I would return to the idea that instead of denying and defending, both hospitals and doctors should try telling the truth. Even if the physician does not believe that he erred, both he and his hospital should be willing to open the patient’s records for the patient and his or her attorney, revealing as much as possible about exactly what happened.  Nurses and other medical personnel should be allowed to tell the patient and his family what they saw.

But won’t this lead unscrupulous attorneys to then pounce on ambiguous details that they use to trump up a case?

That isn’t what has happened so far, according to the story in last week’s New York Times, which described how a number “of prominent academic medical centers, like Johns Hopkins and Stanford,” are trying [the] disarming approach. By promptly disclosing medical errors and offering earnest apologies and fair compensation, they hope to restore integrity to dealings with patients, make it easier to learn from mistakes and dilute anger that often fuels lawsuits.”

Not surprisingly, patients want to sue when they feel that someone is looking them straight in the eye—and lying to them. Often, an open admission of what went wrong combined with a sincere apology and a fair offer of compensation will defuse the situation. 

Victims often feel a responsibility to make sure that what happened to them won’t happen to others. When doctors admit errors, hospitals are in a much better position to analyze their systems, and devise ways to guard against similar mistakes. Telling the patient what they are planning to do also will temper the desire to sue.

“Despite some projections that disclosure would prompt a flood of lawsuits,” the Times notes,  hospitals that have the courage to  try this approach  “are reporting decreases in their caseloads and savings in legal costs. Malpractice premiums have declined in some instances, though market forces may be partly responsible.”

But won’t attorneys use apologies to hang defendants?   No—not if state law makes that impossible.
Thirty-four states already have enacted laws making apologies for medical errors inadmissible in court, according to Doug Wojcieszak, founder of The Sorry Works! Coalition, a group that advocates for disclosure. Four states have gone further and protected admissions of culpability. This all suggests that candor may be the wave of the future.

So far, the results have astounded the pessimists: “At the University of Michigan Health System, one of the first to experiment with full disclosure, existing claims and lawsuits dropped to 83 in August 2007 from 262 in August 2001,” according to Richard C. Boothman, the medical center’s chief risk officer .
“Improving patient safety and patient communication is more likely to cure the malpractice crisis than defensiveness and denial,” Boothman observed.

He also emphasized that he could not know whether the decline was due to disclosure or safer medicine, or both.”  Once a hospital begins to open the blinds and let the sunlight in, doctors, nurses and administrators are much more likely to be candid with each about “near misses.” Rather than “covering” for colleagues, they may begin “watching each other backs,” cautioning a tired colleague who is about to make a mistake.

Of course, some physicians will resist counsel and will refuse to acknowledge that they ever make mistakes—either because they fear a loss of position or privileges, or simply out of ego. Annas reports that even in New Zealand, a country that has “no-fault” malpractice insurance, about 61 percent of doctors still fail to report errors to their patients.

But, today, hospitals have a powerful incentive to insist on candor. At the University of Michigan, legal defense costs and the money it must set aside to pay claims have each been cut by two-thirds. The time taken to dispose of cases has been halved.

Meanwhile, the Times reports, “plaintiffs’ lawyers who recognize that injured clients benefit when they are compensated quickly—even if for less—are changing their strategies. In Michigan, trial lawyers have come to understand that Mr. Boothman will offer prompt and fair compensation for real negligence but will give no quarter in defending doctors when the hospital believes that the care was appropriate.”

“The filing of a lawsuit at the University of Michigan is now the last option, whereas with other hospitals it tends to be the first and only option,” Norman D. Tucker, a trial lawyer in Southfield, Michigan, told the Times.

Michigan is not the only success story. The number of malpractice filings against the University of Illinois has dropped by half since it started its program just over two years ago.  In the 37 cases where the hospital acknowledged a preventable error and apologized, only one patient has filed suit.

The results also show that it’s easier for doctors and hospitals to collaborate in practicing the best medicine possible when they are on the same team. “The policies seem to work best at hospitals that are self-insured and that employ most or all of their staffs, limiting the number of parties at the table.” 

This is the case at Veterans Health Administration, which, it turns out, pioneered the practice of full disclosure in the late 1980s at its hospital in Lexington, Ky., and now requires the revelation of all adverse events, even those that are not obvious.

Once again, as I’ve discussed on The HealthCare Blog, here and here, the VA stands out a leader,  moving us toward a health care system that is based on medical evidence and mutual trust and respect not only between patient and  doctor, but between hospital and doctor. For too long, doctors and hospitals have  seen each other as, at best, people who share the same parking lot, and at worst, as rivals. Going forward, both many reformers as well as many young doctors believe that more and more physicians will choose to practice at multi-specialty medical centers where salaried physicians can avoid the pressures of fee-for-service medicine,  while sharing their knowledge, and watching out for each other. As Dr. Donald  Berwick, head of the Institute for HealthCare Improvement puts it, “doctors shouldn’t be lonely.”

Comments

[doc99]

Risk Management's one accomplishment has been to foster the practice of "Defensive Medicine" - that surely one more test, procedure, admission etc would have prevented the untoward outcome.

From Kevin's blog -

Let's get back to the numbers. The two words "almost certainly" may be the most expensive words in terms of health care dollars. Here's why:

* Consider that there are more than 100,000 primary care physicians in the United States (a conservative estimate)

* Assume a single "chest pain, rule out MI" admission costs $2,000 dollars (again, a conservative estimate, as one of my patients was billed $10,000 for a single night stay)

* Assume every primary care physician admits at least one "almost certainly" musculoskeletal chest pain for an overnight observation in the hospital at least once a week

Once we have digested these numbers, it is time to do the math.

If the above statements are true, the total amount of money wasted on an "almost certainly" musculoskeletal chest pain annually is:

100,000 x 2,000 x 52 = $ 10,400,000,000 per year

A whopping $10 billion dollars are wasted on a single diagnosis every single year. Even if you set aside $1 billion to pay the malpractice lawyers on a yearly basis, you still save $9 billion a year on a single diagnosis.

http://www.kevinmd.com/blog/2008/06/dr-sss-two-most-expensive-words-in.html#comments

It will take more than apologies to make a dent in this staggering sum.

[maggiemahar]

Joe Blow--
When patients demand access to medical records they often find that they are illegible.
Of there are no notes
on what happened at crucial points.
Depositions are needed.
Also, hospitals can make it very, very difficult for patients to get the records.
I'm sure that state medical boards are underfunded. And doctors accused of malpractice by colleagues do sue.
But we also need to take a close look at medical boards, state by state. In some states, I'm sure that they do a better job than in others.

[joe blow]

Let me also say something about state medical boards.

They dont discipline very many doctors, but the reason is not because they are in cahoots, but because of 2 factors:

1) Lots of doctors successfully sue medical boards who discipline them

2) They get paltry funding from the states and dont have enough funds for investigations of medical malpractice. With the limited funds they have, they have to spend it on investigating the really egregious violations, such as doctors who are drunk on the job or those who rape their patients. Garden variety medical malpractice claims are very low on the priority list because of the funding issues.

[joe blow]

Good article. However I have to disagree that its impossible to know what happened or determined if negligence occurred until you sue the doctor/hospital.

All the relevant information you need is in the medical record, and you do NOT have to sue someone to get access to those records.

Federal laws require all hospitals and doctors to release patient medical records upon request by the patient.

To determine if negligence occurred, you have to hire an "expert" to review the file. But that does NOT mean you have to sue the doc/hospital.

[maggiemahar]

Nocat and Dr.Matt--

Good to hear from you.

Nocat--Thank you for the link. I did go to the blog, and it's good to see the National Abitrator's Forum supporting this. It's an idea that should gain traction . .

Dr. Matt--

A said story. I wonder of "risk management" (hospitals' attorneys) do as much damage as the much maligned plaintiffs' bar. (Some plaintiff's attorneys are great, but some do overplay to the jury. Though the statisics indicate that not as succesful as the conventional wisdom suggests.

In any case, you are right. All of this undermines the essential trust between doctor and patient.

[maggiemahar]

Nocat and Dr.Matt--

Good to hear from you.

Nocat--Thank you for the link. I did go to the blog, and it's good to see the National Abitrator's Forum supporting this. It's an idea that should gain traction . .

Dr. Matt--

A said story. I wonder of "risk management" (hospitals' attorneys) do as much damage as the much maligned plaintiffs' bar. (Some plaintiff's attorneys are great, but some do overplay to the jury. Though the statisics indicate that not as succesful as the conventional wisdom suggests.

In any case, you are right. All of this undermines the essential trust between doctor and patient.

[maggiemahar]

Nocat and Dr.Matt--

Good to hear from you.

Nocat--Thank you for the link. I did go to the blog, and it's good to see the National Abitrator's Forum supporting this. It's an idea that should gain traction . .

Dr. Matt--

A said story. I wonder of "risk management" (hospitals' attorneys) do as much damage as the much maligned plaintiffs' bar. (Some plaintiff's attorneys are great, but some do overplay to the jury. Though the statisics indicate that not as succesful as the conventional wisdom suggests.

In any case, you are right. All of this undermines the essential trust between doctor and patient.

[Nocat]

Over at National Arbitration Forum BlogI think spurred on by the same article they talk of settling disputes outside of the courtroom, saying "I’m sorry" as having become a successful step in avoiding lawsuits. To a very large degree. I would suggest you read this. http://arbitration-forum.blogspot.com/2008/05/say-sorry-doctors-use-adr-for-medical.html

[drmatt]

Though I wrote a more heart felt story about this in my book, here it is in short. While in residency we admitted a woman with abdominal pain and weight loss, I reviewed the old chart and found out that a CAT scan two years earlier noted a small mass in the abdominal cavity, the radiologist noted "consider lymphoma, recomend f/u CAT". needless to say this was never followed up and the woman had diffuse lymphoma at this admission. After talking to the doctor origianlly involved, she and I wanted to tell the patient, "risk management" (otherwise known as hospital attorneys) agreed but wanted us to wait and do it on thier terms, six months later when I left residency, she still hadn't been told. I honestly cried as I mourned the death of the sanctity of the doctor patient relationship.

[maggiemahar]

Lisa & Jim
thanks for your comments.

Lisa, yes, "sorry works" is a very good group. I think I cited them in one of these two posts . .

Jim--
I agree, the notion that telling the truth might be the best solution is hardly rocket science.

This is something that we are supposed to learn by the time we are 8 or 9 years old.

But fear is a powerful
drug--it makes people stop thinking. And those who oppose all personal injury lawsuits for ideological reasons, as well as many bone-headed and dogmatic hospital lawyers, have managed to persuade doctors and hospitals that if they tell the truth they risk losing their careers, their homes-- everything.

Apparently few hospital lawyers have been willing to point out: "Look, the vast majority of doctors who are sued are either a) truly incompetent or b) so
arrogant and cold that their patients hated them before this happened.

Though not all hospital attorneys are like that. Three or four months ago I did met a lawyer who represents hospitals and she told me that, for years, she has been telling her clients "just tell the truth. And apologize."

I think the fact that she is a woman may make it easier for her to see that, not only is this the right thing to do, people will respond very differently if you level with them rather than stone-walling them.

This isn't to say that many men can't see this too. But given the way the different sexes are conditioned in our society, combined with some left-brain, right-brain differences, male attorneys may be more inclined to pull up the draw-bridge, deny and fight.

[jim jaffe]

interesting and compelling. from afar, though, it seems quite odd that it requires such a thorough analysis and argument to conclude that providers should level with patients. is it truly rocket science?

[Lisa Lindell]

Another advocate has been on a campaign relating to disclosure for several years: http://www.sorryworks.net/about.phtml