A response to my recent post, The malpractice system doesn’t improve patient safety.

by Brian Nash

In his blog, Dr. Kevin acknowledges that in the “world of medical error, truth is often clouded in secrecy.” He then points out that “… taking the bold step of publicly describing your mistake is a brave one. Some would say it’s long overdue.”

Well so far, Dr. K, we’re on the same track.

He then poses the question:

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?

Dr. Kevin then provides a commentary by Hillary Clinton and Barack Obama in a perspective they “penned” in 2006 in The New England Journal of Medicine to the effect that “many errors in medicine are not due to bad doctors intentionally trying to hurt patients, but on system-wide errors …”

I’m wondering if Dr. Kevin appreciates the difference between the concepts of negligence and intentional tort? If there are physicians intentionally trying to hurt patients, we have a bigger problem on our hands than I ever realized. Whose conduct leads to “system-wide errors”? Answer: the health care providers and administrators of health care facilities whose acts of omission or commission create such system-wide errors and/or permit them to exist.

After citing the now famous statistics of the 1999 Institute of Medicine (IOM) report that told the public that “as many as 98,000 deaths in the United States result of failed system and procedures,” Dr. Kevin then gets to the root cause analysis of his polemic:

The malpractice system does a lousy job to improve patient safety (along with poorly compensating injured patients) … 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.

Well, Dr. Kevin, you and I now go different paths.

Open discussion to improve patient safety

So exactly what is this system in place to have an “open discussion to improve patient safety”? Physicians have had a system of policing themselves for a long, long time. I believe you call it peer review. If this system is so effective, why, after decades of having an “open discussion” (that is done in secrecy, by the way) do 98,000 deaths occur in this country annually. The IOM report was ostensibly designed to create a reporting system of errors to identify, analyze and correct these so-called “system-wide errors.” Interestingly, I haven’t seen an update on just how the death rate has decreased in the last eleven years. It’s a great concept but only as good as its implementation. Are deaths, catastrophic injuries, life-altering errors still occurring at an alarming rate? I suspect so – based on the number of calls our firm gets from people whose lives have been turned upside down after suffering from bad medical care.

The indisputable theme of Dr. Kevin’s post is that the reasons patient safety has not improved at an acceptable rate is because of the media (e.g. in its unfair and hyped coverage of “Dr. Ring’s story” ) and “to the adversarial nature of a flawed malpractice system, which encourages secrecy, suppresses apologies, and does little to improve patient safety.”

Really? Let’s take a look at the reasons Dr. Kevin espouses.

Encourages secrecy

The last time I checked, which was yesterday unless something happened after I left work last night, lawsuits are played out in public forums. Where do you conduct peer review, Dr. Kevin? What laws do you have that make the investigations of those peer review sessions not discoverable in lawsuits? In a lawsuit, both sides get to put it out there in public. Seems to me that a bit more of an “open discussion” than your self-policing, which, by the way, doesn’t seem to have done a great job of improving patient safety.

I fully understand the concept behind the protections of peer review. In essence, the protections are premised on the belief that unless peer review is not protected from disclosure, an honest, open assessment of care rendered (for improvement in care) will not take place. What I don’t understand is why, when one’s peers find fault, a health care provider and/or the insurer simply fight to the bitter costly end of litigation in order to prove their peers wrong. Have you done an analysis on the costs associated with defending medical malpractice cases where the care is outright poor? I’ll bet that’s an astounding figure. Maybe correction on that score would improve the cost of medical care.

Suppresses apologies

I suspect what the good doctor is referring to is the concept that if a physician apologizes for his/her malpractice, this might be used against him/her in a court of law as an admission against interest. Well, have you been keeping track of the legislative proposals that would make such “admissions” – inadmissible? I might suggest that the medical profession spend time advocating for that legislative change rather than condemning the “flawed malpractice system.” I would also invite attention to the programs that are apparently still in their infant stages whereby hospitals and health care systems do admit fault and seek early case resolution.

Query: just how well have these taken off? Seems like this is a good idea – in theory. Any particular reason the medical profession hasn’t embraced the concept nationwide? Perhaps some can also share their thoughts on why it is that the care givers think about the legal implications first when they are meeting with a family whose lives have been devastated by outright negligence.

Is this just another theoretical concept that your colleagues have a hard time putting into action? There are ways to apologize and have such apologies remain inadmissible in a court of law. Just a hint: confidential, early intervention proceedings. They would go a long way with the families whose lives have been ruined. But does the medical community really need protection to just admit malpractice has occurred – when it has?

Does little to improve patient safety

I respectfully disagree, Dr. Kevin. Are you suggesting that when a meritorious lawsuit is brought that it doesn’t make at least those involved more aware? Do you accept the proposition that such health care providers might make better decisions/judgments when faced with a similar clinical situation?

Having previously represented physicians and health care institutions for decades before representing the victims of medical malpractice, let me assure you that the message does resonate with many, if not most, defendants in a medical malpractice case.

Interestingly, it has also affected those who are not directly involved. Do you really think that verdicts in cases aren’t discussed by other health care providers? Do you really believe that when bad care has occurred and has seriously injured someone that colleagues haven’t paused and self-examined their own practices – hopefully not repeating the same mistake(s)? I refuse to believe that so-called physician hubris is really that bad? In fact, my extensive experience with physicians has led me to believe that their lives are dedicated to doing the right thing for their patients, which could well include self-analysis of prior conduct.

There are so many excellent, dedicated health care providers who do take stock of the practices of others played out in litigation and change their own practices. I have personally witnessed dedicated, caring health care administrators and risk managers undertaking “root cause analyses” to correct system failures. Many, many times the genesis of these analyses are medical malpractice cases they have had to confront.

I am constantly being told by expert witnesses on both sides of litigation that they have learned so much about practice issues and patterns that it has helped them improve their own practices for the betterment of patient safety.

One of the primary motivations – at least for our clients – for bringing a lawsuit is not about money – it’s about the client’s hope that some other patient won’t suffer the same fate they did. Others just want to know what happened. Maybe if the medical profession were to adopt a policy of honesty, open discussion and willingness to admit fault when it occurs, there would be fewer lawsuits and improvement in patient safety.

An invitation for an “open discussion”

Dr. Kevin, your posts and those of  your guest bloggers have been applauded by me and many others for a long time. They are thought-provoking, well written and – yes – many times controversial. As you know, one of the hallmarks of a good blog post is a call to action. Well – here’s my call to action.

Perhaps a public airing of some of the key issues relating to the malpractice system (which is flawed in a number of respects) and the health care system (which is not free of its own flaws) would lead to improvement in patient safety and the betterment of both systems. You and your readers just might be surprised as to how many things there are about which we might agree. There is no doubt that we may have to agree to disagree, but maybe – just maybe – a public airing of these issues will have the same result – true improvement in both systems.

Brian Nash practices law at Nash & Associates a law firm specializing in medical malpractice and catastrophic injury cases.

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