Medical Malpractice - Real Threat or Paper Tiger?
Medical malpractice is a real issue. Medical professionals make mistakes and many patients are injured or die. Nevertheless, some patients experience bad outcomes, in spite of quality medical care. Many of these folks and their lawyers, attempt to blame the health care professional or facility for their problem. The American legal system manages most of these unfounded cases and other frivolous litigation appropriately. Malpractice is very difficult to prove, even when it has occurred. There are a few glaring examples where bad outcomes, beyond the control of the physician, regularly precipitate successful legal action and very high settlements for the plaintiff and the lawyer.
The classical example of this miscarriage of justice are the majority of litigation following delivery of newborn children found to have Cerebral Palsy. The law has not caught up with medical science. Years ago, many medical professionals believed CP was caused by brain damage due to oxygen deprivation during difficult deliveries. The unfounded belief held that a delayed decision to perform a C-section to end a prolonged labor, caused the disease. Sound, repeatable medical studies have disproved this misconception. However, obstetricians continue to be successfully sued by the parents of newborns with CP.
In the October 5, 2005 issue of the Journal of the American Medical Association (1688 JAMA-Vol 294, No. 13) the article, “Who Will Deliver Our Grandchildren? Implications of Cerebral Palsy Litigation” was published. The article was written by several prominent physicians. They present a very accurate summation of this problem. If medical malpractice is to be reformed, this issue is a very good place to start.
The importance of this specific issue for this disease, these patients and the physicians involved cannot be over emphasized. The parents of these kids and kids afflicted with the disease are facing a lifetime of overwhelming stress and medical expense. This condition is devastating for the families. It is no wonder they are looking someone to blame and to anyone with deep pockets to bail them out for the long term costs of medical care.
Most physicians that specialize in obstetrics do so because they love to bring new life and joy into the world. Imagine how it feels to care for a women through pregnancy, provide quality care through labor, performing a technically perfect C-section if necessary, only to get sued by the family for a neonatal disease that is not your fault. To be accused of malpractice and dragged through the courts is devastating for any physician. It is particularly egregious for a physician who has caused no harm.
The cost of malpractice for these high risk specialties is a bother and a good reason to complain about the “state of medicine in America,” but not a significant emotional stressor. The high premiums are simply passed on to the health insurance company and the patient. The real stress and anger comes from being falsely accused.
This is not to say that all birth injuries are not the doctors fault. Malpractice does happen and some children are injured. Childbirth is a very rough, stressful process and lots of bad stuff can happen. Our Health Care System statistics on real patient injuries resulting from errors in judgment and mistakes in technique are deeply disturbing. Even more disturbing is the fact that the number of malpractice cases filed is only the tip of the iceberg. Some studies show only one incident of patient injury out of ten ever results in a malpractice action.
Patients suffering injury as a result of medical error and the families of patients killed by practitioners committing the errors, deserve reasonable compensation. Practitioners repeatedly committing errors resulting in patient injury or death must have their license to practice sanctioned or revoked. Malpractice resulting in patient injury is a real issue.
Malpractice litigation and insurance reform is a much different issue. To effect real reform, we must accept the fact that physicians (and other medical professionals) injure patients at a predictable rate, through errors in judgment and/or technique. We must balance against this fact that there are many frivolous litigations filed, frequently because lawyers know many will be settled without a fight. It is frequently less costly to settle a baseless $10,000 dollar claim than spend $30,000 going to court to win the case.
How are the interests and rights of both the patient and the medical professional protected? How can the rights of patients with legitimate claims for real injuries be preserved while protecting physicians and other medical professionals from unfounded (see the CP example above) or frivolous actions? How will the federal and state governments balance any legislative initiatives?
Medical malpractice reform is a political issue. It heats up or cools down depending on the attention given to other social, economic and political stories by the media. Sometimes the specter of malpractice is just a tool for one political party or the other to raise campaign funds. For medical malpractice reform to get any traction it has to be perceived as a real problem that has a direct, adverse effect on our skyrocketing medical costs.
Organized medicine claims this is the case, and offers several rationales. The first claim is that the raising cost of health care is due to the increasing cost of malpractice premiums. This cost must be passed on to the health insurance company or patient, resulting in health insurance premium increases. This claim is not substantiated because all the costs of medical malpractice, including litigation and settlements accounts for an insignificant portion of the $2.2 trillion dollars American’s spend on health care each year. The cost of medical malpractice insurance alone does not provide an objective financial rational for reform.
The practice of “defensive medicine” is the second reason usually promulgated by medical practitioners. Many physicians and the lobbyists for their associations, blame most of the excessive cost for unnecessary services on this practice. “Defensive Medicine” is the paper tiger of excuses physicians use to explain our irrational excessive use of medical goods and services. If the doctor “knows” a test is not necessary, why is the test ordered? The answer is the physician does not “know.” The cost overrun for unnecessary medical services is the result of the failure of the memory based decision making process. It has nothing to do with “shotgun medicine.”
How big is the “unnecessary medical care” problem? Estimates of the cost of abuse and fraud in the American Medical-Industrial Complex range somewhere between thirty and forty percent. This means between $700 and $900 billion dollars each year is wasted on unnecessary care and fraudulent billing. The $60 billion dollars lost each year through Medicare fraud is not part of the malpractice problem and will not be resolved through malpractice reform.
The remaining waste, or dollars spent on unnecessary medical care, some call “abuse.” Most abuse simply results in waste of other peoples money (OPM). However, some decisions to deliver unnecessary medical goods and services result in patient injuries and real malpractice. Most physicians believe decisions to provide unnecessary care is driven by fear of malpractice or, defensive medicine. Keep in mind, unless fraud is involved, money does not change hands without a doctors signature. The financial crisis in our Medical-Industrial Complex is “just what the doctor ordered.”
Physicians also claim a portion of the waste is the result of physicians acquiescing to the requests of “demanding patients.” All I have to say to this excuse is, “Grow a pair, Shirley.” Of course, very few physicians are sued for ordering something a patient demands. However, this could happen. For example, if a patient demands a cardiac catheterization after a completely negative cardiac evaluation a physician might acquiesce to the unreasonable request and refer the patient to a an invasive cardiologist. The invasive cardiologist, following Mark Twain’s principal, “To a man with a hammer, everything looks like a nail,” will predictably perform a cardiac catheterization. Another $20 to $30 thousand dollars is wasted on unnecessary medical care. What would happen if, during a procedure showing no cardiac disease, a serious complication and patient injury occurred? Do you think the plaintiff’s lawyer might add the referring physician to the list, claiming the doc should not have made the referral for an unnecessary test?
Many patients make unreasonable request and have unreasonable expectations. It is up the the physician to interact and communicate with the patient so they understand saying no may be in their best interest. It takes time and a good “bedside manner” to help patients understand what is necessary and what is not, but in the end, the physician must just say no to an unreasonable request for unnecessary care. Remember, no care is paid through American health care financing system without a doctor’s signature. Our health care crisis is “just what the doctor ordered.”
Medical malpractice is a real problem that needs to be fixed. However, all Americans must understand that malpractice litigation is the symptom, not the disease. The disease causing patient injuries and deaths is the failure of the global, subjective memory based decision making process. The memory based decision making process is designed into the educational methodology at most American medical institutions and perpetuated by the academics who teach at these medical schools. The process is, “memorization, testing, certification.” The certified, licensed “expert” is expected to keep their memory banks up to date and to make quality medical decisions using only memory. Most American physicians practice “piece work” incident medicine using global subjective memory based decision making.
The antithesis of this methodology is patient-centered, small group, problem-based learning as conducted at McMasters University in the DeGroote School of Medicine. They teach the science of clinical epidemiology and the practice of evidence based medicine. The use of the POEMR and integrated intelligent Clinical Decision Support (CDS) tools, computerizes this methodology to maximize efficiency and produce quality outcomes.
So called malpractice reform that limits a lawyer’s ability to obtain a just settlement for an injured patient’s medical bills, pain and suffering, does not address the core medical decision making failure, and may have significant unintended consequences. It would foster continued physician hubris and perpetuate the delusion that the health care crisis is someone else’s fault. It would be like eliminating the fines for dumping oil in the Gulf of Mexico and trusting the oil companies to improve their quality management processes. It just ain’t going to happen.
Physicians and professors that research the medical error problem are usually experts in quality improvement and understand that most errors are system problems. That is to say, the error is the result of the functional reality in which it is made. Every process has an inherent, built in error rate. To fix the error rate, the process or functional reality must be changed. The individual making the error may be able to suggest needed changes, but is rarely empowered to do anything significant about the process. Very few have recognized the process driving the medical error rate is the use of the flawed human memory for real time medical decision making. This cannot be fixed by attempting to attain more knowledge. It cannot be fixed by establishing tougher certification standards. The human mind doesn’t work that way.
Many experts that address the the causes of the high medical error rate seem to have what psychiatrists call a “lacunar superego.” This literally means a void in the conscience or hole in an individual’s perception. The film, “Never On Sunday” was the classic tail of a prostitute who would not entertain customers on Sunday. These academic experts seem very willing to discuss medication errors made by nurses but appear to avoid serious consideration of the most significant problem; physician errors and injuries to patients. This void or avoidance is understandable. The academics have spent their lives filling the memory banks of medical experts, then examining their memories and certifying them as experts. We are finally turned loose on the public. It is very hard to recognize that your memorization, testing and certification paradigm is flawed and is the major cause of our health care crisis. We physicians are, after all, experts and as Laurie Anderson sings, “Only and Expert” can deal with the problem:
The following youtube presentation made by Dr. Lucian Leape illustrates the problem outlined above. Dr. Leape is a very intelligent person, a professor at Harvard and an expert in quality management and quality improvement. I believe he is emotionally and professionally vested in the “memorization, regurgitation, certification” paradigm. What struck me about this presentation was his ability to recognize nurse errors in administering medication resulting from process issues. He was able to present process problems that lead to errors. Nevertheless, the video shows almost complete lack of recognition that physician errors in ordering the wrong medication or doing the wrong procedure or committing errors that result in patient injury or death are the real problems.
Lucian Leape, MD, Adjunct Professor of Health Policy Harvard School of Public Health
Why Do Errors Happen? How Can We Prevent Them?
There is a path out of this morass. The first step along that path are patient Electronic Health Records (EHRs). These must morph into Patient Centered Problem Oriented Electronic Medical Records (POEMRs). Intelligent clinical decision support (CDS) tools must be applied to the electronic records to provide the medical standards and criteria needed to make quality medical determinations, in real time, as patients are being seen. These systems cost money and physicians will need an incentive to convert from paper to computer based records. The department of Health and Human Services (HHS) has set a deadline for this conversion. If the Center for Medicare and Medicaid Services (CMS) defines “effective use” as the instillation and use of these intelligent systems, physicians using them could be immunized against malpractice. Decisions made in agreement with nationally approved standards as documented in these EHRs would be like “acting on the advise of counsel.” In other words, if a doc uses POEMRs and intelligent medical decision support tools, malpractice litigation should not be allowed, provided the patient injury is not due to gross negligence. For legal protection, the physician must do both the “right thing” and the “thing right.”
This system would improve quality and decrease the incidence of malpractice significantly but would continue to have cost problems. Nothing drives cost like Fee-for-Service (FFS) medical reimbursement. It not only drives cost, it drives medical errors. Too much medical care is bad for the patient but good for the doctors bank account. The last step along the path to the future vision of quality, low cost medical care is the application of these computerized systems to the practice of Patient Centered Medical Home.
If you want to learn more about these concepts and the nuts and bolts of the proposed medical record architecture and intelligent medical decision support tools, you will have to read my book.