Monday, April 16, 2012

A different kind of malpractice

Malpractice lawsuits are a necessary evil in our society.  At times, they are frivolous, often resulting from a patient’s or family’s anger at a result that was not what they had hoped.  Some are actually designed just to try to get a financial settlement.  When doctors are sued for malpractice, it is a searing process, isolating and painful.  I have known several excellent doctors who have given up established practices so they will never have to go through the possibility of another lawsuit.  That is a real loss to society.

But our legal system is also designed to protect patients.  Malpractice lawsuits can be justified when a doctor acts negligently or makes a decision that is clearly outside of the bounds of the accepted standard of care.  

One of things we know about quality and safety lapses in hospitals, though, is that they are often the result of systemic problems in those organizations.  It is not that a doctor or nurse has intentionally committed a clinical error.  It is that the way work is organized in the hospital causes errors to occur.  For example, many hospital-related infections arise this way, and people die or are harmed as a result.  This raises a question as to whether it should be possible to sue for malpractice when a hospital fails to act to correct systemic problems.

Anne Carroll, now retired, has graduate degrees in information science and public health.  She raised the question this way recently in a recent health care quality and safety chat room (reprinted here with her permission.)

Here is a not-so-hypothetical case:  In an organization where the "systems errors" are generally known (subsequent to root cause analysis after RCA after RCA analyzing the same errors and the same processes), and the "normal human errors" are generally known, and the solutions to the systems errors and normal human errors are evidence-based and generally known--and no organizational processes have been redesigned to include barriers and forcing functions and other known process improvements to prevent errors from reaching patients; no policies and procedures have been rewritten and improved;  no staffing improvements have been implemented; there is no communication from top management about patient safety as a priority--and the organization's patient safety and health outcomes have not improved--how long should that organization and its personnel be given a pass?  If not negligence and incompetence, what should it be called?

I was recently at a hospital where the CEO said directly to his senior management and clinical leaders that his goal was to be “just above average” when it came to quality and safety metrics.  I was stunned because I know the effect of setting such a low target.  In my former hospital, we established a target of eliminating preventable harm; we implemented scores of process improvements; we rewrote policies and procedures; we made it clear that the top leaders and our board of trustees viewed reduction of harm as a priority.  Once we did all that, we were able to avoid the deaths of dozens, maybe hundreds, of patients per year.  The CEO who has chosen not to do that has, in essence, said that the loss of hundreds of lives at his institution is acceptable.

Anne raises the issue of whether a hospital that takes a passive approach like this should be vulnerable to malpractice lawsuits.  She suggests that the scope of the standard of care in medicine has changed.  It is no longer just a question of whether the doctor has made reasonable decisions in the care of the patient.  It is a question of whether the hospital has affirmatively engaged in systemic process improvement to avoid harm.

I am not one to encourage malpractice lawsuits, having seen the effect of them on individual doctors who are unjustly accused of an act of commission or omission.  On the other hand, I have sympathy for the patient who has died or been harmed unnecessarily because of the failure of a hospital to try to improve its delivery of care.

I am not suggesting that every instance of harm should prompt an institutional malpractice lawsuit.  Even the best hospitals in the world, the ones focused intently on improving care, will have such events.  Rather, I am suggesting that if a hospital has not demonstrated a good-faith effort to adopt proven techniques and approaches to improving quality and safety, it is not carrying out its public service responsibilities.  In such a case, I think it is quite fair to raise the question in court as to whether the institution should be held legally responsible for avoidable harm.


Anonymous said...

Although as a physician it is anathema to me to encourage lawyers, you and Anne raise a compelling point. Proving the case would be an interesting challenge, but sometimes change just doesn't occur until a class action lawsuit is won and hospitals realize patients are serious.
As the quote in your (excellent) book said, "the momentum is with inertia" - sometimes it takes a major jolt to change that.


Andrew Price said...

Spot on. Sometimes no matter how careful or diligent a doctor is there are going to be complications and when this happens dragging the doctor through the court is only a disservice to the community. Suing should be a last resort and cases should go to helping the community not hindering it.

Anonymous said...

Every other player in the game is playing by the rules. The rules acquiesce that patient health, safety and comfort are not the the most important priorities of physician's work. What organizational accountability demands otherwise?

Physicians are trained to be thoroughbreds, infallible and superior on the competitive racetrack of medicine. From this view, patients look pretty weak, even slow and often stupid. For physicians, malpractice is humiliating, not humbling. Doctors don't see claims against their performance as an opportunity to question the function and adaptability of their morphology, how fragile their limbs on a rougher course, how limited their vision on uncertain terrain. And, medical schools and institutions benefit from this limited response of personalized career injury.

Medicine is protected by rules, not persecuted by them. Tons of rules. There is reason to moan about the mountains of rules, but they really just keep everyone else busy. For every tape measure on every fire extinguisher, few actually reach a doctor in a room with a patient. Really. How many metrics are actually followed in your care?

Malpractice exists because balance does not. Is there any question of the tsunami of harm that happens each year as weighed against judgements won? Where are the ethics of medicine such that so few come forward with harm? If 747s are going down every year, where is the culpability of physicians to report them?

When there is honesty, there will be justice. When there is justice, there will be trust. Until then, it just a game. And malpractice is the price paid for unwillingness to create new and seriously meaningful parameters.

e-Patient Dave said...

What is the managerial equivalent of malpractice? Is it negligence?

I wonder if there's a precedent in labor law - a company's management knows of harm happening to workers and knows it's possible to stop it and doesn't... that sounds like the definition of negligence to my uneducated ears.

Anonymous said...

Part of the malpractice problem results from the failure of the medical profession to adequately deal with the relatively few physicians who repeatedly cause problems.

Malpractice isn't random. Over the last 20 years only about 2 percent of physicians were responsible for over half of all of the money paid out for malpractice settlements and judgements in the U.S. Many of these physicians have multiple malpractice payments in their records but no actions against their clinical privileges or licenses.

If hospital peer review committees and state licensing boards were more activist in dealing with the few physicians with repeated malpractice payments by requiring retraining or restricting or revoking licenses, we could not only save a considerable amount of money, but more importantly prevent injuries and save lives.

Anonymous said...

It is tough for a hospital to enact a standard when so much of the process is controlled by physicians. Hospital administration are often faced with doctors who control the tone of the change debate on the front lines.