The malpractice system doesn’t improve patient safety

There has been significant media attention on a New England Journal of Medicine case report where a surgeon, Massachusetts General Hospital’s David Ring, described how he operated on the wrong hand of a patient.

Here’s a summary of the case:

Ring, along with colleagues at Massachusetts General and Harvard Medical School, detailed the series of missteps that led to the wrong operation in the patient whose ring finger on her left hand was stiff, painful and sometimes got stuck in a flexed position, a condition known as “trigger finger.”

The patient, a Caribbean native who spoke only Spanish, was the last operation on a day that included three major surgeries and three minor surgeries, Ring wrote. No interpreter was available, so Ring, who speaks Spanish, was asked to translate for her.

Stress was high because several other surgeons were behind schedule. As a result, the patient was moved to a different operating room at the last minute, with different staff, including the nurse who had performed the pre-operative assessment.

Ring spoke to her in Spanish, which was mistakenly interpreted by a nurse in the room as a “time out,” the safety pause for the medical staff aimed at double-checking surgical sites, but no formal check occurred. In addition, there was a change in nursing staff in the middle of the procedure and a bank of clinical computers that diverted nurses’ gazes away from the patient.

In the world of medical error, where the truth is often clouded in secrecy, taking the bold step of publicly describing your mistake is a brave one. Some would say it’s long overdue.

There have been studies that show an apology and admission of error lead to a lower rate of being sued. Beyond the malpractice implications, it’s simply the right thing to do. So, why isn’t it happening more often?

In 2006, then-Senators Hillary Clinton and Barack Obama penned a perspective piece in the NEJM, noting that many errors in medicine were not due to bad doctors intentionally trying to hurt patients, but on system-wide errors — similar to Dr. Ring’s case:

We all know the statistic from the landmark 1999 Institute of Medicine (IOM) report that as many as 98,000 deaths in the United States each year result from medical errors. But the IOM also found that more than 90 percent of these deaths are the result of failed systems and procedures, not the negligence of physicians. Given this finding, we need to shift our response from placing blame on individual providers or health care organizations to developing systems for improving the quality of our patient-safety practices.

The malpractice system does a lousy job to improve patient safety (along with poorly compensating injured patients). The mere fact that the media is making such a big deal about Dr. Ring’s story is a testament to that. It’s that rare.  Every error should be discussed in the open, used to improve the care of our patients, and reduce the risk of future mistakes.

The fact that that’s not happening can be chalked up to the adversarial nature of our flawed malpractice system, which encourages secrecy, suppresses apologies, and does little to improve patient safety.

 is an internal medicine physician and on the Board of Contributors at USA Today.  He is founder and editor of KevinMD.com, also on FacebookTwitterGoogle+, and LinkedIn.

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  • skeptikus

    If there were no liability system, Kevin says, there would be complete openness about medical error? Give me a break!

    Doctors have a multitude of reasons to hide their errors, rather than the fear of litigation. There’s bad reputation, loss of self-respect, difficulty of admitting error to patients, loss of patients, and other financial injuries–as well as professional ostracism.

    • Kevin

      Of course, I’m not calling for no liability system. Just one that is non-adversarial. Such as no-fault as employed in Sweden and New Zealand. A non-adversarial system puts patients and physicians on the same side, with the common goal of reducing medical errors and improving patient safety.

      Kevin

      • John Ryan

        Some of the tort system compensates victims, often too little or too much. Mostly, it just serves as a huge paycheck for attorneys on both sides. You just have to watch the attorney ads, exhorting citizens to cash in. How did they ever pay to publish phone books before attorney ads became commonplace?

        Kevin’s point is valid, and supported by a lot of recent patient safety literature — adversarial systems of error identification inhibit the process of safety improvement.

        The problem in recognizing this and making the correction in our legal system is the same toxin sickening our government — the influence of money.

        • Matt

          Actually, the problem is that no one on the physician side really wants this. It’s likely that the majority of errors never see the light of day – do you really think that liability carriers want them to?

          The liability carriers are the straw that stirs the drink. All this no-fault stuff is just dreaming unless they back it.

          If you guys want to take this horrible “money” out of it, then stop charging for future care as a result of mistakes? It seems physicians want everyone to stop thinking about money but. . . them.

      • http://Www.twitter.com/alicearobertson Alice

        Skeptikus gave an honest round up of excuses for not admitting error, but they look self serving. Do you teach your children this same justification method? And how would you feel about a doctor who harmed your child then listed these same excuses?

  • Jack

    Kevin,
    The system in Sweden and New Zealand makes good sense. Unfortunately, the group that loses out is the trial lawyers who would NEVER allow that to happen.

    Sad but the truth.

  • http://www.rethinkingpatientsafety.com Lee Tilson

    That “litigation alone” has failed to solve the malpractice problem does not mean that litigation cannot be part of the solution. In fact, the most successful effort at reducing patient harm, the Anesthesia Closed Claims Project used closed malpractice claims as a starting point. Litigation is a societal backstop that comes into play when all other mechanisms of preventing injury fail. Before removing this backstop, we ought to solve the problem.

    Why not build on the approach of the Anesthesia Closed Claims Project?

    Interestingly, I blogged on this issue earlier today.

    Lee Tilson
    http://www.rethinkingpatientsafety.com/my-blog/2010/11/the-purpose-of-malpractice-litigation.html

  • Maurice

    Can someone please stop tying malpractice reform with safety. Speeding laws don’t save lives as much as antilock brakes and airbags. Capital Punishment has not been a great deterrent to murder.

    I believe the anesthesiologists unilaterally improved safety by looking within and not simply talking about various reforms.

    How about writing do not cut on the correct arm? How about delaying an apparently elective surgery? How about reading the chart ONE ADDITIONAL TIME in the OR?

  • Marc Gorayeb, MD

    There are cases in which judgment and decision-making in hindsight should have gone the other way. In many of these cases, there is no negligence. A poor outcome should not be the predominant factor used to define negligence. A no-fault system would have to be very carefully crafted to avoid pegging physicians inappropriately as negligent.

    Then there are cases in which a physician makes an idiotic mistake, such as this one. The surgeon’s mea culpa in the NEJM ‘rings’ hollow to me. This was unequivocal negligence, and I do hope the patient had legal representation when the settlement was made. Would a settlement in a no-fault system – with the threat of trial removed – have reflected the true cost of this negligence? No-fault is not necessarily a panacea.

  • http://nashandassociates.com Brian Nash

    Dr. Kevin
    As usual, your post is thought-provoking, well written yet controversial. After reading your post, I felt a counter to your arguments just might be in order. I have posted a full reply via a blog that I invite you to read and comment on if and as you see fit: http://bit.ly/i5ophd. These are complex issues that do deserve an “open discussion.”

    • Kevin

      Thanks Brian, I’ll take a look..

      Kevin

  • cks

    my child is dead because of a physicians poor judgement. ignorance led to negligence. our young adult child had a raging bacterial infection,was admitted to the hospital where he later died. antibiotics were not prescribed. Having lived through this horrific experience, I know first hand the deceit and lies that happen in these situations. this is what we were told, the physician did the minimal standard of care for a Dr. at his level. Apparently he was not qualified to prescribe intervenous antibiotics. These are the physicians who are in charge of the Ed? Let’s not leave out arrogance. He also did not interpret the CBC test properly. He acted like he was in charge of the situation, when in fact he was far from it. I wanted to have my son moved to a different hospital but the physician insisted we leave him where he was. I cannot have my child back, but a sincere apology would make us feel that our son’s death was perhaps not in vain.

    • http://Www.twitter.com/alicearobertson Alice

      I am genuinely so sorry, but sadly I, too, have experienced firsthand doctors behaving badly when a glaring mistake is made. I can’t even imagine your pain. Our daughter’s cancer spread from neglect and arrogance, and sometimes it seems the cover up hurt as bad as the diagnosis.

      I agree that an apology…an acknowledgment of error is powerful. Doctors here often post anonymously under the guise they are doing patients a service…..no they do themselves a service and hide behind a curtain of vanity.

      I can’t come close to understanding your pain and agony, but surely doctors whose very being revolves around doing no harm should care when they err….the hurt may be unintentional….but the lack of apology is intentional and so harmful their very existence of being a doctor should be questioned.

  • Justin

    In your article you say that the surgeon operated on the wrong hand, when the issue discussed in his NEJM article is that he performed the wrong surgery. He did a carpal tunnel release instead of a trigger finger release.

    Maybe the mistake was made for intentional irony?

  • http://www.ServantLawyership.com Kathleen Clark

    Thank you, Kevin, for all your thoughtful and thought-provoking posts. In this one, you suggest that Dr. RIng did the right thing and should be applauded (I wholeheartedly agree). Then you note that more of this open disclosure should take place but it doesn’t due to our flawed medical malpractice system. Are you stepping over the physicians’ role in the process? If physicians took part in disclosure, apology, and compensation and the improvements in patient safety that would result, and many physicians do, there would be very little need to participate as parties in the medical malpractice litigation system. If the litigation system after alleged adverse medical events is flawed, then why not do everything possible, as Dr. Ring did, to not have to participate in it by immediately communicating with the patient/family and providing the opportunity for expeditious learning and healing for patients and physicians?

  • martin

    How does a physician licensing board know that a private physician, non-hospital based or employed, is a danger to patients and committing repeated malpractice if he or she is not sued? Say a nearby hospital ER sees his/her patients and another hospital admits and treats the missed cancer diagnoses and heart attacks, but the physician is not on staff or have privileges at either hospital?

    In other words, who monitors office and free standing facility patient care? No practice data or monitoring is required for license renewal anywhere I know of? Malpractice is the primary way these individuals are found out. Am I wrong? Even the private insurers who pay the bills aren’t doing much screening? And they only drop the physician from their acceptable list of providers.

    So physicians do not want anyone interfering with their private practices. Many do not support computerized medical records for fear then they will have to submit data. Loud and clear in everything I read. Yet they also want tort reforms, limits on awards, and even no fault insurance options. They want relief of high malpractice premiums when no one but the individual practitoner really knows how many diagnoses they missed for failed to treat appropriately in a given year?

    I do believe most physicians do a really good job, but unless anyone is monitoring, how do the outliers surface?
    Right now the legal option is the only avenue patients have to get the word out. As far as I know, physician licensing boards depend on filed lawsuits to identify outliers? Am I wrong?

    It sounds to me most physicians would prefer to gamble on secrecy. If they scream loud enough they will get more tort reform and discourage lawyers from suing them. In my opinion, this does not bode well for them in the long run.
    They may get no fault systems, but the reality is no one will respect them for it. I predict more patients will bring claims against this “sanctimonious, cowardly, secret, society”.

    I favor opening your doors and really proving to the public you have earned their respect. Most of you have and you’ve worked darned hard to be good at what you do. If something goes wrong and you injure someone, take your lumps with honor and courage.

    A dear friend and surgeon sat on quality assurance committees and peer review throughout his career. He was a highly regarded. However, later in his career he made a judgement error and injured a patient permenantly and seriously. He was sued and he opted for an early settlement. He was insured by a hospital and not an insurance company, so this option was possible for him. He faced the patient directly, and bravely accepted the anger of the patient and his family. Attorneys on both sides were humbled by his courage and humility. The patient received fair retribution.

    This surgeon accepted responsibility for fair peer review during his career, and insisted on a fair legal process when he made a human mistake. Both were necessary in his opinion. Physicians so fear this will happen to them. So much brilliant energy that could change reasons why patients are injured goes wasted in this entrapment of fear.

    The law weeds out frivilous claims and frivilous lawyers need to be weeded out of law. A challenge for sure. But it should not paralyze a whole profession from moving forward with purpose — patient safety.

    • http://www.rethinkingpatientsafety.com Lee Tilson

      The problem with Martin’s answer is the same as with Kevin’s original blog piece. It is the difference between “medical error” and “patient safety.” The mindset of preventing medical errors prevents progress in the field.

      A huge part of the problem is that doctors think the problem is about them. It is not.

      A medical error killed my father. No lawsuit was filed or will be filed. I don’t care about the error. I care that he is dead. I care that that he is dead.

      Patient safety is not about medical errors. It is about the patients. It is not about whether the doctors exercised good judgment or followed a protocol or made a mistake. It is about whether the patients are developing complications.

      We need to devise seat belts for patients to protect them from injuries. We will never eliminate medical errors. The lack of progress in patient safety has been the incorrect belief, by physicians, that it is about eliminating physician mistakes.

      I don’t care that mistakes were made in the care of my father. I want my father back. I don’t want it to happen again.

      How do we get those in patient safety to see this?