Last month, the National Post’s Tom Blackwell reported that a growing number of hospitals say patients and their families are secretly recording doctors and nurses. Some say it’s a symptom of the breakdown of trust being patients and their physicians. Welcome to a Cowardly New World.
The biggest examples that reported in the National Post included a video camera installed in a clock radio to secretly record doctors and nurses as they treated a patient. The footage was used as evidence regarding substandard care at Sunnybrook Health Sciences Centre in Toronto. At Toronto’s University Health Network, a video camera was reportedly concealed inside a teddy bear. A camera concealed in a wrist watch was used to record evidence against a Calgary psychiatrist. Smart phones are also being used overtly and also surreptitiously.
I have experienced this first hand in the ER. On one occasion during a night shift, as I was about to stitch up a patient’s cut, his buddies asked if they could record me doing it. I thought it was kind of cute and innocent. The recording took place in a closed room away from other patients so there was no risk anyone else could be filmed surreptitiously.
To be clear, that example was overt. I had another patient encounter that was quite different. I remember seeing an elderly patient who came to the ER with a medical problem. Both the patient and a relative were present in the room the first time I saw him. I came into the room a second time to give the patient and the relative some test results. As I walked into the room, I noticed that a cell phone was on a chair in the room; it was seated in the middle of the seat cushion, sort of like an invited guest. I paid no further attention to it.
The relative said the patient’s daughter (a physician) and was en route the hospital to speak with me. I started to tell the patient and the relative my working diagnosis and my management plan. Suddenly, the cell phone talked! A voice emanated from the smart phone’s speaker disagreeing with me! The daughter had been surreptitiously listening in all along.
For more than a decade, a running joke among electronic health (EHR) record skeptics has been that its clunky “decision support” functions, defined as the on-screen provision of clinical knowledge and patient information that helps physicians enhance patient care , is condemned to always remain an innovation of the future. Yet, while published studies like this continue to fuel doubt about the prime-time readiness of this EHR-based technology, a growing body of clinical research suggests that the science is getting better. Jonathan Cohn, writing in The Atlantic, points out that IBM’s Watson has achieved enough of a level of sophistication to warrant clinical trials at prestigious institutions such as the Cleveland Clinic and Memorial Sloan-Kettering.
Unfortunately, there is an under-recognized threat to EHR-based decision support: the dysfunctional U.S. tort system.
The experience of Google’s “driverless car” may be instructive. According to National Public Radio, years of testing is putting this technology within reach of consumers. Thanks to the prospect of fewer accidents, better transportation options for the disabled, reduced traffic congestion and lower hydrocarbon consumption, some states have responded by attempting to support this promising technology with “enabling legislation.”
Unfortunately, the legislation in some state jurisdictions is being hindered by the prospect of complicated lawsuits. As physicians know all too well, when a single mishap lands in court, adroit attorneys can use the legal doctrine of joint and several liability to tap multiple deep pockets to increase the potential size of the award. In the case of driverless cars – in which the owner is more of a passenger than a driver – the accidents that are bound to happen could metastasize upstream from the owner and tie up the driverless automobile manufacturers and all of their business partners in time-consuming and expensive litigation.
Ditto the EHR’s decision support technology. Even with Watson’s intelligence, medicine will remain imperfect and allegations of medical mistakes will be inevitable. When lawsuits arise, the defendant medical providers will likely argue that their judgment was clouded by the very technology that otherwise helped them better serve their other patients. Personal injury lawyers are unlikely to let that theory of liability go unused. Tapping the same kind of lucrative joint-and-several legal theories that have served them so well in decades of standard malpractice litigation, they’ll undoubtedly be happy to name the EHR manufacturer and all of its decision-support business partners in these lawsuits.
Connecticut’s Appellate Court recently ruled that hospitals and doctors can successfully sue their patients’ attorneys for filing a vexatious malpractice suit. The Court also ruled that the trial judge’s decision that the patient’s suit was vexatious will often create an estoppel against the attorney. The attorney will consequently be precluded from contesting that decision. The only issue will then be the amount of damages—double or treble—that the attorney and her firm will be obligated to pay the hospital or the doctor. See Charlotte Hungerford Hospital v. Creed — A.3d —-, 2013 WL 3378824 (Conn. App. 2013).
Whether this is going to be a trend in our medical malpractice law remains to be seen. In the meantime, I provide the details of that important decision.
Attorneys representing the family of a psychiatric patient, who committed suicide, filed a malpractice suit against a hospital and some of its doctors. They alleged that the defendants prematurely discharged the patient from the hospital’s emergency room while she was still experiencing a severe mental health crisis. Allegedly, this untreated crisis was the cause of the suicide that the patient committed four days later.
The suit was supported by an opinion letter from a registered nurse (!!). Under Connecticut law, as in many other states, the supporting opinion letter must come from “a similar health care provider.” The attorneys thus should have retained a psychiatrist, rather than a nurse, as an expert supporting the suit. Their failure to do so rendered the suit defective and the trial judge properly struck it out.
I am very fortunate to have never been sued. That is not necessarily because of my amazing ability as a physician. I always practiced in Veterans Affairs medical centers, where my status as a federal employee meant I would not get sued by my patients. I also had an incredibly appreciative patient population.
But I know that most of my physician peers have been sued, successfully or unsuccessfully, at least once in their careers. And I know that these lawsuits take an emotional toll upon them. To make matters worse, malpractice lawsuits have a nagging tendency to drag themselves out for months upon months. Consider this figure, from a study led by an economist at the RAND Corporation. It shows that malpractice claims related to temporary injuries take a median of a year to resolve, while those dealing with fatalities or permanent injuries take a median of 18 months.
As well intentioned and thoughtful as he is, Sanjay Gupta nonetheless misses the point in his recent New York Times op-ed “More treatment, more mistakes.” The theme of the chief medical correspondent for the Health, Medical & Wellness unit at CNN is:
Certainly many procedures, tests and prescriptions are based on legitimate need. But many are not…. This kind of treatment is a form of defensive medicine, meant less to protect the patient than to protect the doctor or hospital against potential lawsuits.
Herein lies a stunning irony. Defensive medicine is rooted in the goal of avoiding mistakes. But each additional procedure or test, no matter how cautiously performed, injects a fresh possibility of error.
With a quick aside in admiration of Peter Pronovost’s approach to harm reduction and some other process improvements, he then says:
What may be even more important is remembering the limits of our power. More — more procedures, more testing, more treatment — is not always better.
And then, remarkably, he presents M&M conferences as a remedy:
One place where I have seen these issues addressed is in Morbidity and Mortality, or M and M — a weekly gathering of doctors, off limits to the public, which serves in most hospitals as a forum for the discussion of mistakes, complications, deaths and unusual cases. It is a sort of quality-assurance conference where doctors hold one another accountable and learn from one another’s mistakes. They are some of the most candid and indelible meetings I have ever attended.
Health care costs too much in the United States. One key problem is gold-plating of services driven by physicians’ fears of lawsuit for failure to do everything possible for patients. A notable example of such overutilization is increasingly routine ordering of advanced imaging or other tests. Reliable, evidence-based clinical guidelines promise to address low-value utilization by authoritatively stating standards of good care in advance.
Some thought leaders among Democrats seek to use guidelines to side step the routinized political battles over malpractice reform. Republicans have been saying that defensiveness and other problems justify caps and other limits on medical liability. Belittling defensiveness as a problem, Democrats have defended and promoted liability as an incentive for good care.
Defensiveness is a problem, acknowledge proponents of guidelines to reform liability. But it can be fixed simply by legislating that adherence to reliable guidelines constitutes a “safe harbor” against lawsuits for failure to do more. Safe harbors would remove the motivation for defensiveness and also any need to accept Republicans’ caps and other limits. Given the political stalemate in Washington, the idea is worth thinking through.
Good guidelines are a good idea, especially to improve quality of care, which is their main policy driver. And, because guidelines hold promise for cutting wasteful defensiveness, they have superficial appeal as a liability reform. However, practical feasibility limits the reach of safe harbors, as explained in a recent policy brief from The Urban Institute for the Robert Wood Johnson Foundation.