Tag: Malpractice

Myths About Medical Malpractice

A few days ago, I found myself involved in a debate over malpractice suits on The Heath Care Blog. One reader on the thread explained why, in his view, we need some type of tort reform: “What drives physicians to practice defensive medicine is the total lack of objectivity, fairness and consistency both across jurisdictions and even within a jurisdiction as to how medical disputes are decided. Juries of lay people who cannot understand the often conflicting scientific claims in these cases can be easily swayed by emotion and sympathy for injured plaintiffs.

“The inclination to practice defensively is especially prevalent in ER’s when the doctor and the patient often don’t know each other and there is time pressure to determine a diagnosis and send the patient on his or her way,” he added. “I’ve heard from plenty of doctors who work in inner city ER’s that even poor people are not shy about suing when there is a bad outcome if they can find a lawyer to take their case which they often can.”

This comment pretty well sums up the conventional wisdom about medical malpractice cases: Juries are not objective, don’t understand the evidence, and tend to sympathize with the patient. Meanwhile, doctors should be wary of those low-income patients in ERs. Americans are litigious by nature and if patients are not entirely happy with the outcome, they’ll jump at an opportunity to turn misfortune into a payday. Poor people, who need the money, are even more likely to try to “score.”

Those are the fictions.Continue reading…

An Alternative to Malpractice

About three decades ago, University of Chicago law professor Richard Epstein proposed a radical alternative [gated, but with abstract] to our system of malpractice liability. He called it “liability by contract.” The idea: let patients and doctors voluntarily agree in advance how to resolve things if something goes wrong.

In nonmedical fields, Epstein’s idea is actually quite commonplace. Contracts for performance often have provisions detailing what the parties will do if something goes awry. If the parties disagree, contracts often spell out dispute resolution procedures (such as binding arbitration).

One version of this idea in medicine has already been tried. For years, hospitals asked admitting patients to sign a form agreeing not to sue the hospital or the doctors, no matter how negligent they were. When these forms showed up at the courthouse, however, judges routinely dismissed them on the grounds that the patients were too sick, too scared and too uninformed for there to have been a true meeting of the minds.

My colleagues and I at the National Center for Policy Analysis believe we have found here and here. Let the state legislature decide on the minimum elements (including the amount of monetary compensation) that must be in such contracts in order to make sure patients are fairly protected. Then widely publicize these elements so that people generally understand (before they get sick) what will happen if they opt out of the malpractice system. Courts would be required to accept these contracts as binding.

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The Conservative Way Forward on Health Care

The landslide Republican victory, in taking the House and electing some strong conservatives to the Senate, can be interpreted as a mandate to rein in government spending, and specifically to repeal ObamaCare, as these issues were clearly behind the large turnout.  There is still a very real possibility the Supreme Court will find the “individual mandate” to buy private insurance unconstitutional.  If this provision is thrown out, it’s hard to see how the law survives, since the mandate is needed to finance it.

Now is an excellent time to construct a conservative alternative vision for true reform of our health care delivery system.  Since most current problems with the health care system stem from government, a conservative plan should seek to reduce its role.

It goes without saying that the Patient Protection and Affordable Care Act must be repealed since, like all the laws passed by this administration, it does precisely the opposite of what its name suggests.   By massively increasing the health care bureaucracy at the expense of actual providers of care, it will make care harder to access and more expensive.   Many physicians will take early retirement and the already great physician shortage will be exacerbated.

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Could It Be That Patients Aren’t Any Safer?

On the occasion of last year’s tenth anniversary of the IOM Report on medical mistakes, I was asked one question far more than any other: after all this effort, are patients any safer today than they were a decade ago?

Basing my answer more on gestalt than hard data, I gave our patient safety efforts a grade of B-, up a smidge from C+ five years earlier. Some commentators found that far too generous, blasting the safety field for the absence of measurable progress, their arguments bolstered by “data” demonstrating static or even increasing numbers of adverse events. I largely swatted that one away, noting that metrics such as self-reported incidents or patient safety indicators drawn from billing data were deeply flawed. Just look at all the new safety-oriented activity in the average U.S. hospital, I asked. How could we not be making patients safer?

I may have been overly charitable. This week, in an echo of the Harvard Medical Practice Study (the source of the 44,000-98,000 deaths/year from medical mistakes estimate, which launched the safety movement), a different group of Harvard investigators, led by pediatric hospitalist and work-hours guru Chris Landrigan, published a depressing study in the New England Journal of Medicine. The study used the Institute for Healthcare Improvement’s Global Trigger Tool, which looks for signals that an error or adverse event may have occurred, such as the use of an antidote for an overdose of narcotics or blood thinners. Following each trigger, a detailed chart review is performed to confirm the presence of an error, and to assess the degree of patient harm and the level of preventability. While the tool isn’t perfect, prior studies (such as this and this) have shown that it is a reasonably accurate way to search for errors and harm – better than voluntary reports by providers, malpractice cases, or methods that rely on administrative data.

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The Fine Print

Last week the American Medical Informatics Association (AMIA) released a position paper titled
“Challenges in ethics, safety, best practices, and oversight regarding HIT vendors, their customers, and patients: a report of an AMIA special task force.” The paper shines a bright light on the alleged contracting practices of EHR vendors and their notorious “hold harmless” clauses, which indemnify the EHR vendor from all liability due to software defects, including liability for personal injury and death of patients. What this means in plain English is that if a software “bug” or incompetency caused an adverse event, and if you (or your hospital) are faced with a malpractice suit, the EHR vendor cannot be named a co-defendant in that suit and you cannot turn around and bring suit against the vendor for failure to deliver a properly functioning product.

The AMIA paper also asserts the existence of contractual terms preventing users and purchasers from publicly reporting, or even mentioning, software defects, including ones that may endanger patient safety. The AMIA report goes on to challenge the ethics of both buyers and sellers engaging in such contracts, with an emphasis on the EHR vendors’ primary responsibility to shareholders and the bottom line in general.

As expected, the authors call for Government regulation of HIT products and processes and suggest that contracts should, of course, reflect a shared responsibility between vendors and customers and while public reporting should be allowed (or required) for certain types of software defects, users should be mindful of the vendor’s intellectual property. The interesting portion of the report is the rather novel recommendation for formal Ethics education amongst vendors and purchasers. Presumably, vendors and their customers need to be taught the difference between right and wrong and need to be informed that placing corporate profits (or personal comfort) ahead of patient safety is indeed wrong and therefore unethical. To borrow from the Windows 7 phone commercials, “Really?

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The Road to Repeal?

Emboldened by their victory in the Midterms, many Republicans are calling for repeal of the Patient Protection and  Affordable Care Act (PPACA). How likely is it that we’ll see changes any time soon?  Probably not very.  More cautious observers are expressing reservations about the prospect of any reversal in the near term.

Paul Ryan, R-Wisconsin, one of the Republican young guns, says, “You can’t fully replace this law until you have a new President and a better Senate. And that’s probably 2013, but that’s before the law fully kicks in on 2014.”

Michael Tanner, a senior fellow at the conservative Cato Institute, is more straightforward,”Repealing Obama care is just not going to happen while Obama is in office.”

In the meantime, expect the following events to play out over the next two years.

1. House Republicans will vote overwhelmingly to repeal Obama care, with modest Democratic support from those elected who opposed Obamacare.

2. Harry Reid, Senate Democratic leader, will refuse to bring the House repeal up for a Senate vote.

3. President Obama will insist, as he already has, that it is foolish to “relitigate” a law which he regards as set in legislative, historic, and ideological concrete.

4. They will call upon Kathleen Sibelius, Secretary of Health and Human Services, to explain why costs have risen sharply since passage and why so many insurers and businesses have dropped coverage.

5. They will summon Doctor Donald Berwick, Administrator for the Centers of Medicare and Medicaid Services, to explain his views and to justify why he should be reseated following his recess appointment.

6. They will seek to repeal the reform the provision calling for submitting of 1099 forms for every $600 of business expenditures – a possible item of compromise.

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The Shame of Malpractice Lawsuits

This posting is not about tort reform. It is not about defensive medicine (e.g., MDs taking too many tests to avoid the chance of lawsuit.) It is not about controlling costs or improving the quality of care. It is not even about whether malpractice lawsuits are fair. It is about the emotional effect on a doctor when he or she is sued for malpractice.

A friend of mine (I’ll alternate genders to help maintain confidentiality) recently found herself in this situation. By any measure, this person is an excellent physician. She has impeccable clinical judgment when it comes to both diagnosis and treatment. She has superb interpersonal skills and bedside manner. She is highly respected by her peers, by the nurses, and by all who know her.

Recently he found himself as a defendant in a malpractice lawsuit. The details and merits of the case don’t matter all that much. The patient had been under his care for many, many years and was always satisfied with the quality of care offered. After the patient died, the patient’s children sued.

Even though she knew that she had done nothing wrong, my friend’s main emotional response to the lawsuit was that she was ashamed. She did not want anyone to know about the case — whether colleagues in the hospital or social friends. I was stunned. Without knowing any of the evidence in the case, I was confident that this doctor had done her best in treating another human being and would be appalled to think she had done anything to create harm. I also knew this person to be as well trained and well intentioned as anyone I could imagine.

And, yet, he felt shame in being named as a defendant in a case that accused him of negligent treatment. As I talked to other doctors, I learned that this was a common reaction to such lawsuits. Another friend talked of the scars left from a case 20 years ago. He was found not to be at fault, but he could still vividly recall the weeks of shame he felt while the case proceeded.

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Hyperventilating about the Harvard/Health Affairs Malpractice Study

A new study from an interdisciplinary team at Harvard University reports that the medical malpractice system costs close to $60 billion annually. The study is published in the policy journal Health Affairs and is receiving lots of attention in the media. The attention is unwarranted. The study is old news, of questionable validity, and prone to misinterpretation. But that hasn’t stopped the medical lobbying complex from hyperventilating about the findings and renewing its call for massive tort reform.

The study provides no surprises to anyone in the health research or health policy arena who pays attention to malpractice. All of the data are in the public domain and most have been reported in previous studies. (For the past decade I have reported essentially the same findings in my health economics class.)

The most important component of malpractice costs is defensive medicine. The Harvard authors put this at $46 billion, or nearly 80 percent of the total, but this is pure guesswork. Researchers cannot agree on the extent of defensive medicine. The Harvard authors base their estimates on seminal studies by Kessler and McClellan. Their work is seminal largely because it was first, not because it was definitive, and later studies often find far less evidence of defensive practice. The Harvard authors try to be conservative by using the low end of the Kessler/McClellan cost estimates. But truth would have been better served if they had stated that the cost of defensive medicine could just as easily be $16 billion or $76 billion.Continue reading…

Do Patients Want to Punish?

There is a great debate set forth in the IHI’s Open School discussion of the wrong-side surgery case that  occurred at our hospital a few years ago. (I have written about this below, but there are some new postings.)

Kimberlee Ziga writes: I, as an RN working in an ICU, have also made mistakes. Thank God they have not been life threatening but nonetheless, they were mistakes. I was educated thoroughly and proven to be competent with testing. When I made that mistake, I was written up. I totally understood why. I am a licensed professional who is competent at her job, and that calls for accountability and responsibility. I believe all the medical staff involved should have been held accountable and disciplined accordingly. If that was my family member, I would have been irate for what they had to go through.

In contrast, Jessie Moon says: Paul Levy . . . made it out like it was a serious situation, but one that could happen to any surgery team. He* did not punish any one person, but instead he took care of the situation by asking, “how can we lower the chances of this ever happening again”, which makes the person and the family that this happened to feel better (or so I would assume), the public, as well as the workers in this hospital.

There are two parts to this question. What is the most effective way to reduce the likelihood of a similar event happening in the future? I have addressed this topic fully below. At heart, the answer goes to the definition of the “just culture” that has been adopted by a hospital.

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Trust Me I’m a Doctor vs. Physician Quality Report Cards

In Quality Measures and the Individual Physician, Danielle Ofri, MD, PhD, questions the usefulness of feedback report cards for individual providers. She states, “Only 33% of my patients with diabetes have glycated hemoglobin levels that are at goal. Only 44% have cholesterol levels at goal. A measly 26% have blood pressure at goal. All my grades are well below my institution’s targets.” (

It would be better for Dr. Ofri’s patients if these numbers were higher. I think even Dr. Ofri would agree with that assessment. And yet Dr. Ofri’s response to these low scores is that “the overwhelming majority of health care workers are in the profession to help patients and doing a decent job.” And more upsetting is Dr. Ofri’s conclusion where “I don’t even bother checking the results anymore. I just quietly push the reports under my pile of unread journals, phone messages, insurance forms, and prior authorizations.” (

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