A version of this op-ed was published on January 17, 2012 in USA Today.
Ask doctors about what concerns them the most, and chances are they’ll say, “medical malpractice.” Indeed, most physicians will be sued sometime during their careers. A recent New England Journal of Medicine study found that 75% of doctors who practice psychiatry, pediatrics or family medicine will be sued during their career. Neurosurgeons, orthopedic surgeons, and obstetricians have it worse, as virtually all of them will be embroiled in a lawsuit sometime before they finish practicing medicine.
The medical malpractice debate often pits physicians, who say the threat of malpractice pushes them to order expensive, medically unnecessary tests, against lawyers who believe that lawsuits are needed to hold doctors accountable. What’s lost are the voices of doctors who have actually been sued.
I’ve talked to some of these physicians, and they say being sued is a life-altering experience. But it’s more than career-threatening damage to their reputation. A November 2011 study from The Journal of the American College of Surgeons found that doctors who had been sued were more prone to burnout, depression and suicide. According to lead author Charles M. Balch, a professor of surgery at the University of Texas Southwestern Medical Center, the stress of malpractice “is right up there with financial distress, serious work-home conflicts and life-and-death circumstances.” Physicians who are depressed or burnt out make significantly more medical mistakes compared to those who aren’t. That’s important for patients, since most doctors who endure a lawsuit will continue to practice medicine.
How can physicians avoid the courtroom?
Creating and maintaining open lines of communication with patients is critical to preventing lawsuits in the first place. Doctors have to better explain, and patients understand, that not all adverse outcomes are due to physician errors.
Although the Institute of Medicine’s 1999 seminal report, “To Err is Human,” concluded that nearly 100,000 patient deaths a year were due to medical errors, 90% of those deaths weren’t due to physician negligence, but to system-wide procedural failures at medical institutions. Consider the seemingly simple task of dispensing a drug at a hospital. It’s actually a complex process that requires five interdependent steps: ordering, transcribing, dispensing, delivering, and administering. A poorly designed system can lead to an error in any of those steps, with a potentially deadly patient outcome as a result.
Bad outcomes can also occur despite appropriate patient care. A colonoscopy can be performed correctly, for instance, yet complications like a bleed or a tear in the colon can still unexpectedly occur. Another New England Journal of Medicine study looked at nearly 1,500 malpractice claims and found that 37% of them didn’t involve any medical errors at all.
If an error truly was made, many malpractice insurers advise physicians not to talk to patients. That’s wrong. Physicians instead should fully disclose their mistake, apologize, and, when appropriate, compensate injured patients. Patients would still have the option of filing a formal lawsuit. For over a decade, the University of Michigan Health System has used such a program, and their incidence of malpractice claims has since dropped. Some states have enacted laws protecting apologies from being used against doctors in court. They need to spread nationwide, so that more doctors can speak openly about their errors, and prevent future ones from occurring.
Patients report that poor communication is the most important factor in deciding whether to pursue a lawsuit, or not. Alan Woodward, chairman of the Massachusetts Medical Society’s committee on professional liability, says that the threat of legal retribution for medical mistakes stifles transparency and “creates a culture of secrecy and fear.” We need to remove this threat, and approach malpractice reform by promoting better doctor-patient communication, both before and after medical mistakes. This can can not only prevent the stress of a malpractice trial that every doctor fears, but also help improve patient safety as well.