The scope of the standard of care in medicine has changed

Malpractice lawsuits are a necessary evil in our society.  At times, they are frivolous, often resulting from a patient’s or family’s anger at a result that was not what they had hoped.  Some are actually designed just to try to get a financial settlement.  When doctors are sued for malpractice, it is a searing process, isolating and painful.  I have known several excellent doctors who have given up established practices so they will never have to go through the possibility of another lawsuit.  That is a real loss to society.

But our legal system is also designed to protect patients.  Malpractice lawsuits can be justified when a doctor acts negligently or makes a decision that is clearly outside of the bounds of the accepted standard of care.

One of things we know about quality and safety lapses in hospitals, though, is that they are often the result of systemic problems in those organizations.  It is not that a doctor or nurse has intentionally committed a clinical error.  It is that the way work is organized in the hospital causes errors to occur.  For example, many hospital-related infections arise this way, and people die or are harmed as a result.  This raises a question as to whether it should be possible to sue for malpractice when a hospital fails to act to correct systemic problems.

Anne Carroll, now retired, has graduate degrees in information science and public health.  She raised the question this way recently in a recent health care quality and safety chat room (reprinted here with her permission.)

Here is a not-so-hypothetical case:  In an organization where the “systems errors” are generally known (subsequent to root cause analysis after RCA after RCA analyzing the same errors and the same processes), and the “normal human errors” are generally known, and the solutions to the systems errors and normal human errors are evidence-based and generally known–and no organizational processes have been redesigned to include barriers and forcing functions and other known process improvements to prevent errors from reaching patients; no policies and procedures have been rewritten and improved;  no staffing improvements have been implemented; there is no communication from top management about patient safety as a priority–and the organization’s patient safety and health outcomes have not improved–how long should that organization and its personnel be given a pass?  If not negligence and incompetence, what should it be called?

I was recently at a hospital where the CEO said directly to his senior management and clinical leaders that his goal was to be “just above average” when it came to quality and safety metrics.  I was stunned because I know the effect of setting such a low target.  In my former hospital, we established a target of eliminating preventable harm; we implemented scores of process improvements; we rewrote policies and procedures; we made it clear that the top leaders and our board of trustees viewed reduction of harm as a priority.  Once we did all that, we were able to avoid the deaths of dozens, maybe hundreds, of patients per year.  The CEO who has chosen not to do that has, in essence, said that the loss of hundreds of lives at his institution is acceptable.

Anne raises the issue of whether a hospital that takes a passive approach like this should be vulnerable to malpractice lawsuits.  She suggests that the scope of the standard of care in medicine has changed.  It is no longer just a question of whether the doctor has made reasonable decisions in the care of the patient.  It is a question of whether the hospital has affirmatively engaged in systemic process improvement to avoid harm.

I am not one to encourage malpractice lawsuits, having seen the effect of them on individual doctors who are unjustly accused of an act of commission or omission.  On the other hand, I have sympathy for the patient who has died or been harmed unnecessarily because of the failure of a hospital to try to improve its delivery of care.

I am not suggesting that every instance of harm should prompt an institutional malpractice lawsuit.  Even the best hospitals in the world, the ones focused intently on improving care, will have such events.  Rather, I am suggesting that if a hospital has not demonstrated a good-faith effort to adopt proven techniques and approaches to improving quality and safety, it is not carrying out its public service responsibilities.  In such a case, I think it is quite fair to raise the question in court as to whether the institution should be held legally responsible for avoidable harm.

Paul Levy is the former President and CEO of Beth Israel Deaconess Medical Center in Boston and blogs at Not Running a Hospital. He is the author of Goal Play!: Leadership Lessons from the Soccer Field and How a Blog Held Off the Most Powerful Union in America.

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  • Sophie

    Hospitals should definitely try to fix systemic errors, but how will hospitals be policed? How do you prove that a hospital has put in sincere enough of an effort? Seeing as hospitals are also business models, at what point does costs associated with a hospital overhaul take precedence over cost of human life? Hospitals should be accountable for the quality of care they provide, but how?


  • Maggie Keavey Kozel

    If law suits were the answer to poor quality, we would now have the highest quality health care in the world.  But lawsuits do nothing to improve quality and in fact medical errors – especially in hospitals –
    have become epidemic in this country even as an entire generation of
    attorneys have bought vacation homes on the profits of litigation.  Defensive medicine undermines both quality and cost-effectiveness for all of us, yet avoiding malpractice suits has become a fixed mindset for physicians.  This mindset  is one of the  reasons we are overmedicalized, has distorted the doctor-patient relationship, and is one of the most common reasons doctors cite for leaving or wanting to leave their practice.   And the errors grow.

    There is only one way to improve quality, and that is to make quality, not quantity (aka profit), the goal of our health care delivery system.  This means serious health care reform, incentives for things like better outcomes as opposed to numbers of procedures, development of valid measures and indicators of quality, and fostering  partnering, rather than adversarial or defensive doctor – patient relationships.  There is no reason we cannot design a smart, cost-effective health care system for this country, but it is not going to be designed by lawyers, and it is not going to arise out of  a courtroom.

  • gymgoki

    You say: Some are actually designed just to try to get a
    financial settlement.
    They ALL are. 

    These lawsuits are designed to make money for the attorneys.
    Until tort reform occurs it is farcical to believe that most medical
    malpractice cases have any value for society.

    Meaningful tort reforms can never occur when lawmakers are
    mostly lawyers.  The foxes are guarding
    the hen houses.

  • arnold

    It requires a financial effort to provide the safety and quality methods stated in this blog. The CEO is only considering the bottom line of his facility. Remember it’s not about the patient, it’s all about the money. Tort reform will not change systems problems. That is a fact in hospital care, and for insurance companies. How many times are there delays in care, because of systems issues. Unfoirtunately, the physician, not the system, is held responsible. Once contributory negligence is applied to the system, then and only then will tort reform be meaningful.

  • davemills555

    “…good-faith effort to adopt proven techniques and approaches to improving quality and safety, it is not carrying out its public service responsibilities.”
    Is any patient of good-faith asking for more than that? Most members of society act in good-faith. Are there opportunists? Yes! There are patients that are opportunists and there are lawyers that are opportunists and there are providers that are opportunists. These are the leeches of our society. They aren’t in the mainstream, they are the few. Proven standards in quality and safety will expose the opportunists and weed most of them out. Our problem isn’t the opportunists. Our problem is the Neanderthals in Congress that keep shouting “death panels”. It’s the Senator Chuck Grassley types in Congress that keep shouting “death panels” and will not accept “proven standards in medicine” as adopted by a team (panel) of medical experts and scholars. It’s members of Congress like Grassley that keep defending the broken status quo. Proven and accepted standards is not death panels. It’s one of the many sane approaches in the PPACA to make health care work for “all” Americans. Short of the PPACA, we have the Republican repeal and replace plan…nothing!

  • kathleen

    As a medical malpractice lawyer for the last 25 years and a former practicing nurse, I can tell you that systemic issues form the basis of many medical malpractice actions.  I have reviewed thousands of hospital charts and time and again I have noted issues such as the care given on holidays and the night shift where gaps in communication/supervision and substandard care resulted in significant patient harm.  Of course, I litigated these cases through trial to get a full view of the issues. These are just two examples. I have also represented health care professionals in disciplinary matters.  In one of these cases a patient suffered a significant bleed while waiting in a hallway for dialysis and ultimately died.  The nurse told me that until that patient came through the doors it was not her responsibility.  As kindly as I could, I reminded her that petty disagreements concerning the timing of when a patient arrives for dialysis had to be put aside and the patient properly monitored regardless of whether the patient was in or outside the door.  
    I also note, that litigation is a harsh process and I have sympathy for all the parties involved, but it is the patients and families who need help in finding out what happened since the institutions and physicians are on the inside.  One of the innovations that has significantly reduced malpractice payouts and costs and improved patient care is the one at Rush Presbyterian in Chicago which is an early settlement program with mediation that includes mediators who are plaintiff’s attorneys. We can all learn a lot from each other.

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