Is the malpractice system is just bad medicine?

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Here is what one medical doctor thinks of the Malpractice system. The article is from The Register-Guard.

DeSiena

December 29, 2002Malpractice system is just bad medicine

By WINSTON MAXWELLJERRY SAGEN, in his Dec. 15 Commentary article, highlighted medical errors as a cause of rising malpractice insurance costs. I feel that many of his statements and conclusions are incorrect or misleading. I have recently retired after 40 years of medical practice, for the most part as a specialist in internal medicine. I have followed with interest the issues of medical errors, adverse outcomes from treatments and malpractice litigation. Several points need to be made. 1) Some mistakes will happen. Medical errors are inevitable, and proportional to the number and complexity of medical acts - such as obtaining medical histories, performing physical examinations, conducting laboratory examinations, making diagnoses and providing treatments with surgery, medications, or other modalities. To get an idea about the possible number of errors that could occur in the medical care system per year, consider these statistics: There are 281 million people in the United States, and 772,296 doctors of medicine and osteopathy. In the year 2000 there were 34,891,000 hospital admissions and a daily patient census of 657,000. If each doctor did only 10 medical acts a day and worked 160 days a year, the number of medical acts a year would be 1.232 trillion. Each act is at risk for error. 2) Some deaths will happen, too. Sagen quoted statistics to the effect that 100,000 people die in hospitals each year because of preventable errors. Researchers are arguing about the validity of such numbers, but let's take it at face value for the purpose of the point I wish to make. One hundred thousand deaths occur for each 34.9 million admissions. This is one death for every 349 admissions, or 0.3 percent. The percentage of these deaths is likely to be higher among people who are older, very sick or both, because these people require more treatments and are more vulnerable to medical errors. 3) Errors can and should be reduced. Whatever the number, it is too high. Error reduction technology such as has been used by the aviation industry focuses not on human error but on the environment in which one makes decisions. I imagine, for example, that most of the errors that a pilot could make in the cockpit of an airliner are countered by a system that alerts him or her of the error. These systems to reduce the consequence of human error are in development in the medical field. An example is the computerized record being implemented by PeaceHealth in its hospital and clinics. In this system, the doctor writes the prescription by choosing a drug from a computer menu, which is in the consultation room; the usual instructions are already written. If there is a potential reaction with any of the medications the person is already taking, the computer alerts the doctor. When the final decision is made, the computer faxes the pharmacy or prints out a copy for the patient to take to their pharmacy. This technology is improving and in time should be a general standard of care. 4) Doctors strive to reduce errors. In a technical field such as medicine, it is the doctors themselves that have the expertise to evaluate the quality of care and to implement systems for improvement. By long-standing tradition, doctors learn from their errors and discuss their problem cases to help each other maintain and improve care. Autopsies have been invaluable in revealing mistakes of diagnosis. In training institutions, death and complication conferences are the rule. This process was normalized, and doctors were not shamed or punished for their inevitable errors; prevention of future errors by education was and is part of the process. It is interesting that most errors are not due to medical ignorance but to lapses of attention or distraction by a wrong theory of what is being treated. Is malpractice litigation a satisfactory means of dealing with medical errors and injured patients? I strongly feel that it is not, because it inadequately addresses both error and injury and creates significant harm.

Most persons experiencing a bad outcome of a treatment have had an "adverse event" that is not a consequence of medical error - in other words, medical interventions have possible side effects. These occur rarely, occasionally or commonly, and in degrees ranging from mild to serious or even lethal, depending on the treatment or procedure. These matters are properly discussed prior to significant interventions, tempered by the patient's desire to know the details.

Settlements in trials are more often correlated with the degree of disability of a litigant, rather than the presence or absence of medical error. This unfairly penalizes the doctor in order to help out an injured person.

Most people who are harmed by a medical error don't sue their doctors when the error is disclosed. Medical ethics require disclosure of particular errors that have resulted in injuries. This is a painful experience that comes with the job.

Most malpractice suits result in defendant verdicts. Malpractice means that a doctor's practice has deviated from a hypothetical standard of care practiced by other doctors in his or her specialty and community. In other words, if an average and prudent doctor in the same specialty and in the same clinical situation as the defendant could have made the same decision as the defendant, then it is not malpractice. The law and juries don't expect doctors to be superhuman and error free; they do expect them to be trying in good faith to help.

The best doctors are often sued because they are doing higher risk surgeries involving higher risk patients, and thus they have higher risk of unsatisfactory outcomes. Neurosurgery, orthopedic surgery and obstetrics are three high-profile specialties that have very high incidence of malpractice litigation unrelated to doctor training and skills. These are necessary and highly valued specialties, and the malpractice insurance costs are passed on to the consumer.

Malpractice litigation creates a climate of fear and reluctance to be forthright about disclosing errors. This impedes the collection and sharing of information needed to continuously improve the quality of care. It is not human nature to disclose more than you have to if you expect to be sued as a result. It is better to follow the lead of the business models that have a proven record in minimizing variance and errors, such as in the aviation industry mentioned above.

Does money spent in litigation get to the right people? The settlements are usually split 50-50 between the plaintiff's lawyer and the injured party. The legal costs of defending malpractice are very high as well. Could a system be designed to cover bad outcomes on a no-fault basis, so that at least the legal costs could go to the people who need help?

The damage to doctors is considerable with the current malpractice system. Doctors generally are trying to help the people they serve. They commonly perceive themselves as going the extra mile, which includes getting home late and giving up a lot of personal and family time. They take their responsibilities seriously and are sensitive to the suffering of their patients. Doctors' reactions to being sued are fairly predictable. Emotional reactions are strong: Fear, guilt, depression, withdrawal, difficulty sleeping, difficulty concentrating on work, bitterness and family stress are common. In frequently sued specialties, some doctors become hardened. Early retirement of good doctors is not unusual. Increased work errors by doctors undergoing these reactions have been documented. Suing doctors as a social policy is bad for the doctors, and bad for the doctor-patient relationship. These are the doctors you and I depend on for care. And with all this, there is no evidence that decades of medical malpractice cases have improved medical care. In fact, Sagen seems to be urging us that current medical care continues to be very bad, despite years of lawsuits against doctors. In conclusion, medical errors are unwanted, and their incidence can be reduced - but never to zero, because to err is human. No system of insurance exists to help people who are disabled or suffer losses related to adverse medical events. The malpractice litigation system helps too few injured people, and is too expensive due to high legal costs. Malpractice lawsuits also create a climate of fear and impede known systems for reducing medical error and improving outcomes. In light of all this, calling health maintenance organizations, hospitals, insurance companies and doctors greedy and accusing them of conspiracy is not generally accurate or helpful. Especially in primary care practices, current Medicare reimbursements are insufficient and result in doctors needing to see more patients; doctors spend less time with individual patients as a result. In addition, caring for uninsured patients (currently estimated at more than 40 million) in clinics and hospitals adds to the economic stress on medical care systems. I am concerned that these economic stresses will adversely affect the progress in making medicine safer. We the people are the only ones that can insist on reforms that will help the economic stresses in medicine today. Improving the statistics on medical errors requires resources, intention and an attitude toward error that is not punitive but constructive. The malpractice system is punitive and not constructive.