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.”

16 thoughts on “Medical Malpractice: Fiction, Facts and the Future; Part 2

  1. 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?

  2. 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.

  3. 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.

  4. 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.

  5. 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.

  6. 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.

  7. 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.

  8. 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.

  9. 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.

  10. 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.

  11. Medical Malpractice Attorney may only collect thirty percent in fees on the first $250,000 awarded to the Plaintiff and only ten percent on amounts greater than this. In contrast, a Massachusetts Medical Malpractice Attorney fees are limited to forty percent of the first $150,000 awarded and only twenty five percent of damages awarded over $500,000. There is usually a statute of limitations that requires Medical Malpractice claims to be filed within two years from the date the injury occurred, or within two years from when the injury should have been detected.Medical Malpractice statutes and it is important to become familiar with these laws prior to filing a Medical Malpractice case. With respect to Florida Medical Malpractice cases, the damages awarded to the Plaintiff will be reduced depending on how much of the injury was the Plaintiff’s fault. If a Plaintiff is determined twenty-five percent responsible for their injury, than the damages awarded to them will only be seventy-five percent the original amount.

  12. 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?

  13. When you experience a delay in undergoing surgery or have any treatment administered without due cause, this also constitutes medical malpractice. If your medical practitioner has failed in his duty to perform a procedure, prescribe medicine or conduct a test within an acceptable amount of time – and you suffer an injury or deterioration in a condition because of his negligence – you are entitled to claim compensation for medical malpractice.

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