Recently, a defense attorney hosted Malpractice 101 on the physician social networking site, sermo.com. A multitude of questions were answered.
Sprinkled in the answers was the conclusion the tort system has a number of salutary effects – namely patient safety. The moderator recited the (now stale) observation from the 1980’s. To paraphrase: Anesthesiologists embraced pulse oximetry because their med mal premiums were too high. They identified the source of high premiums – anoxic injuries and deaths, and crafted a solution. Pulse oximetry. Once embraced, their ORs became safer, and premiums went down.
While I will not quibble that pulse oximetry is a good thing, (it is), I would argue it was a basic innovation that was embraced by the profession, irrespective of premium cost. Here’s why. If premium sensitivity were the driving force, then those with the highest premiums should have adopted pulse oximetry the fastest. A bit behind would have been those in tort reform states. And, slowest to embrace, would have been those who are immune to direct litigation – eg. military physicians. Pulse oximetry was embraced at the same rate among different types of anesthesiologists. The innovation seemed worthwhile, and the field, as a whole, agreed. No anesthesiologist takes pride in being responsible for their patient never waking up. So, once a cost effective solution emerged, everyone jumped on the band wagon.
There is overwhelming data to suggest that fear of litigation has an unintended effect on patient safety. Fear of litigation drives exposure of unsafe systems underground. Once underground, no one learns of the impending problems until after the fact. My take: Litigation is a foolish approach to promoting patient safety.
Agree or disagree? Let’s hear from you.
Please don’t take this as an endorsement of the Bar Association (it isn’t), but just to play devil’s advocate for a moment…
It has been my experience that my first introduction to health care liability issues has often been from personal injury law firm media communications. Whether it is the risk of osteonecrosis of the jaws from bisphosphonates, nephrogenic systemic fibrosis from gadolinium-based MR contrast, or neurological damage from copper-depleting denture adhesives, I first became acquainted with these issues in the context of solicitations to litigate.
Lawyers may have a distorted view of the value they offer to potential health care victims, but they do have the financial incentive to get the word out…
It is absolutely true that improvement in safety is adopted by ethical physicians when it is felt to be cost effective. The safety of pulse oximetry came first. Only after the safety was demonstrated did the premiums go down.
My understanding of Tort law is that litigation, by definition, is adversarial, hence, any discussion, transmittal, documents, review or other work product related to the case is discoverable unless protected by law.. Therefore, this and any other information can and will be used to extract and/or coerce the defense to validate the plaintiff’s allegation of negligence. If the premise is that litigation establishes the events that led to an error and that error was causative to the damages alleged, an adversarial forum is the least effective venue to do so. Secondly, if the purported benefit of litigation is to improve patient safety, it has failed miserably. Dr Segal makes the case rather clearly. If the policy makers and society as a whole are interested in improving the practice of medicine, we need to be able to operate (no pun intended) in a scientific forum, not a legal one. Without the fear of recrimination, we would gather the data from all sources, conduct interviews, analyze study and reach conclusions as to whether the event was an error or simply an unfortunate complication. In this fashion, good medical decision making and judgment can be determined. Poor practice can be identified and corrected. Sadly, the truth is that there are many patient injuries that do not get reviewed because it is not worthwhile for the trial bar to pursue them under the current contingency fee tort system. The truth is, unfortunately, in the details. I ask, what is the goal? Is it to compensate a few injured at the expense of all? Shouldn’t it be to improve the healthcare delivery system and reduce errors? Shouldn’t it be our goal to identify people who have been injured and offer just and equitable compensation? What should it be?
Some random thoughts:
1. I wonder what would happen if doctors/hosptials started getting sued/penalized for ordering too many tests/diagnostics/consults.
2. Since physicians always want to do the right thing and the best they can for their patients, but the fact of the matter is one could get sued if onedoes the right thing and obviously if one doesn’t. Deep down inside many, as your previous article mentioned, practice defensive medicine. A few years ago, I was discussing this with a few lawyer friends of mine. Their comment was that only a small fraction of doctors get sued and a smaller fraction of them loose, so why should all doctors worry about getting sued. I explained to them, the same reason why the insurance industry is a multi-billion dollar industry. Insurance companies are built on FEAR. Watch any of the ads. It is always because of fear of the what if………………. In fact, I would not be surprised that trial lawyers and insurance companies did not work hand in hand. If we took away the fear of getting sued for any possible thing in life, then there may not be as much of a need for all the types of insurance we currently supposedly need. We could even extend this onto the fact that the health insurance re-imbursements keep getting cut, so organizations that have to cover their overhead expenses have to find ways to cover the costs. Some ways are to see more patients, etc. What are the chances of providing excellent comprehensive care in a 5 – 20 minute visit which not only includes meeting and examining the patient but also writting notes/EMR, orders, etc.? Well does this further not pose the potential for the creation of mistakes………………………ah hah, well does that mean our health insurance industry is also further adding to this mess! Well what about pharmaceuticals? It does appear that there are a lot more drugs coming out in the last 2 decades than in the decades prior. What is the easiest thing to do when you have to see a complex to semi-complex patient in 5-20 minutes. RX a med. Sorry I need to move on to the next point.
3. What if there was a common fund that was created that all doctors contributed to, which was used to sue lawyers! Especially those that brought about frivolous cases? The organization could consist of MDs, MD friendly lawyers, and other experts. Wow, what an idea! Everyone and their mother wants to keep checks on the physicians and the medical field, but there aren’t nearly any where close to the number of checks and balances for the the legal side………………and we all know how much the legal side controls the medical side of practice. Obviously many of the medical organizations do not do as much for MDs as they should.
I’ll stop ranting for now.
Thanks for reading.
Dr. T
Good article! That is only the tip of the ice berg.
I agree with you one hundred percent. litigation is foolish. It also wrecks physicians, their careers, their health, their benevolence, and their empathy. It is also a giant distraction from their main job, that of faithful observance of the patient, and 100 percent commitment to the maintenance of the therapeutic alliance. None of this stands unshaken in the presence of this kind of attack.
John.
Dr. Segal,
I wholeheartedly agree with you that litigation does not improve anything but the bank account of Plaintiff’s lawyers. It also increases the cost and reduces the availability of care: you can not sue a doctor who quit or moved from the area: then the babies are delivered in the car on the way to 50 mile away birthing center. Kids with traumatic brain injury die because all neurosurgeons have been driven out by constant litigation and the nearest trauma center is 60 miles away.
It would be like claiming that severely ridiculing and harassing random drivers after accidents will improve the driving performance! Or the students who answer any question wrong should be randomly severely mistreated and punished!
If the theory was with any credibility, then the plaintiff’s lawyers should be suing each other with a fervor, so that the quality and selection of their litigation would improve: they have an 80% lose rate in the Medical case trials: they should welcome this line of approach: to paraphrase: Lawyer sue thyself!
Unscrupulous injury lawyers are commonplace: About the lawyer jokes, someone pointed out that The lawyers do not think that these are funny and the people do not think that these are jokes!
How is it that if patient has a bad outcome, the doctor gets sued, and if the doctor has a strong case and the defense lawyer has a bad outcome, then despite the lawyer’s and jury’s mistake, the databank has the doctor’s name, nothing is attributed to the failed legal system or the attorney.
Ultimately the patients and the society lose in this process while a few get rewarded.
I commend you for the great work you are doing against almost insurmountable odds.
Regards,
Dr T – rant away!! Scary thought if doctors are sued for defensive medicine. So that would mean you get sued for not ordering test and sued for ordering test. Classic damned if you do – damned if you don’t
gidoc – why you ask?? Because lawyers make the laws. Wouldn’t it be great is docs had a voice. That is what Medical Justice is doing.