I’m not a health care person by training. Much of my background is in the public policy
arena—starting first in energy and then branching out to telecommunications,
and thence to water and wastewater. In
parallel, I’ve also run large organizations and managed thousands of people and
billions of dollars in capital and operating budgets. I’ve been a regulator and I’ve been
regulated. When I offer opinions and
illustrative stories on this blog, I am mainly driven by what I see as failures,
and I try to offer approaches that might work to improve things.
In that sense, for almost nine years, the blog has presented a series of
advocacy documents. Regular readers know
that I have seldom pulled my punches: There are enough people who try to be
diplomatic in what they say and how they say it. When it comes to saving lives
from preventable harm, I am too impatient to be overly considerate about
people’s sensibilities.
In all this, I’ve had to decide my own role, beyond what I
do to make a living (providing negotiation training and advice to companies in
many sectors around the world.) I’m
honored to be invited by hospitals and others to provide stories, training, and
maybe even some inspiration as they pursue their journeys towards
patient-driven care. Those journeys rely
on creating learning organizations, characterized by respectful treatment of the staff and
transparency to achieve process improvement to deliver high quality and safe
care.
I’ve chosen to interact mainly with those hospitals that we
have come to view as “islands of excellence in a sea of mediocrity.” I don’t
spend time in places that are not committed to the quality and safety journey
because I only have so much time available and because I don’t find much merit
in hitting my head against a wall.
Admittedly, that’s a luxury on my part, hanging
out with the 5% or 10% of institutions that “get it.”
But what becomes of the rest, the vast majority of hospitals
that don’t get it? My buddy Dave Mayer likes to say that the answer to achieving greater quality and safety and transparency is to “educate the young
and (when necessary) regulate the old.” Beyond the humor, there is an element
of wisdom in Dave’s construction of the argument.
I’ve spent a lot of time on this blog carping about the lack
of rigor that has gone into the design of health care regulation, so I don’t
want to spend time on that today. Suffice it to say that the hand of government is often roughly applied,
and we can only hope that officials get better at designing and implementing policies.
But recent remarks by Bob Galbraith at our student and resident training program (
Telluride East) reminded me
that the heart of professional activities must be self-regulation. He posited that the medical
profession has failed in this regard—avoiding discipline of their members who are clearly
impaired, incompetent, and negligent. So, he suggests, fix this they must, or some one will
step in and do it for them.
Bob’s right on his particular point, but we know that most medical harm does not
derive from the individual actions of doctors. It derives from the work patterns and systems that are in place in
hospitals. These are not organizational
aspects in which most doctors and nurses have been trained. They are trainable with some time, effort,
and resources—but those in a position of authority must encourage and demand that it happen. The “those” in this case must be the boards
of trustees, the governing bodies of the hospitals.
But it is in this arena that we have a public policy
lacuna. While trustees often have a
statutory responsibility for the quality of care given in their hospitals, they
are never held accountable for that care. The history of involvement by lay governing bodies is heavily centered
on the social and community aspects of governance, including fund-raising. Clinical decisions are left to the clinical
staff, as they should be, but oversight of clinical activities by the governing body is often rudimentary at best.
It’s time to change this pattern and, where necessary, force
greater engagement by trustees in quality and safety issues. Given the stature
of trustees in the community and their political influence, I don’t expect
legislators to do much on this front. But there is a group that could take advantage of the current situation
and give those trustees a real incentive to learn how to effectively govern
safety and quality.
That group is the medical malpractice plaintiff bar.
Currently, plaintiffs’ attorneys sue the doctors or nurses
or the hospital when someone is harmed and negligence is alleged. The main argument is that the standard of
care was not met, and the focus is usually on the specific actions or non-actions
by the clinical staff.
But it’s time for
a broader definition of negligence: Negligence today is found in a hospital
that has not used the wealth of data and experience garnered around the world
by the “islands of excellence,” those thoughtful hospitals who have created a
new standard of care by the manner in which they have organized work and by the
existence of a culture of continuous process improvement. All of those
hospitals, too, have boards that are assiduously engaged in appropriate
governance of quality and safety.
I call upon the plaintiff bar to expand their reach in
medical malpractice cases. Name the individual trustees as defendants. Depose them as to the
extent of their activity and oversight with regard to quality and safety
improvement. Ask them if they have
established a corporate goal of eliminating preventable harm. Find out how they measure and monitor harm in
their hospitals. Ask them how much time
in each board meeting is devoted to the topic compared to, say, financial
matters.
Counselors, I think you will find—all too often—a prima
facie case of governance negligence, a factor which is highly likely to support
the underlying contention in your particular litigation.
And think more broadly than individual patient
lawsuits. Curious about targets of
opportunity? The CMS Hospital Compare website might provide guidance. Simply look for those hospitals that have an
incidence rate for, say, central line infections or surgical site infections or
urinary tract infections that is above the national average. Given the standard of care for such items, if
a place has been persistently below average, it’s likely that something is
awry. You might even find that you have
the basis for a class action lawsuit in those hospitals, as their poor performance is
a composite of hundreds of patients.
I have no interest in seeing trustees being held financially
liable at a personal level for their lapses, and, after all, insurance will
protect them from that. But I do have an interest in having them squirm under
the questioning of an experienced malpractice attorney about their failure to
carry out their most important fiduciary responsibility, the well-being of patients
in their institutions.