Decoding Health Care

Part 28: Medical errors and medical malpractice part two

Medical malpractice is defined as “an act or omission by a physician during treatment of a patient that deviates from accepted norms of practice in the medical community and causes an injury to the patient (An Introduction to Medical Malpractice in the United States - PMC).” For malpractice to have occurred, four elements must be proven:

1. There is a physician patient relationship, ie there is a duty to the patient.

2. The standard of care is not met.

3. There is injury to the patient.

4. There are damages.

Needless to say, I am not a lawyer. But when I first went into private practice, the senior member of my oncology group counseled me that “malpractice” occurs when a young patient has a bad outcome.

Medical malpractice lawsuits are very common. The AMA estimated that one of every three physicians is sued for malpractice during their careers. But the likelihood of being sued is much higher for some specialties. Surgical specialties run the highest risk (90% of them are sued at some point), with OB-GYN, Radiology and Emergency Medicine close behind. The most common reasons for malpractice lawsuits are misdiagnosis/delayed diagnosis/failure to treat, surgical errors, birth injuries and medical product liability.

There are about 20,000 malpractice suits filed every year in the US. Of these 90% are settled out of court. For the ones that make it to trial, physicians prevail in about 80%. Suits are usually settled within 2-3 years, although those that go to trial often take four or more years to be resolved. The average plaintiff award is between $250,000 and $500,000 but it is significantly higher if the award results from a trial verdict (often in excess of $1,000,000).

Arguably the two main reasons for medical malpractice lawsuits are to prevent the error from happening again and to compensate the patient. Is the system working? The data is far from clear.

There is scant evidence that malpractice suits reduce the likelihood of medical errors, though interestingly the safety initiatives outlined above resulting in fewer medical errors have reduced some malpractice lawsuits. That doesn’t mean that lawsuits don’t identify certain bad apples; I am sure they do but that is hard to document.

In fact, it is clear that malpractice suits are only brought in a tiny fraction of cases of medical errors that hurt patients. Depending on the reference you consult, the initial IOM estimate of 100,000 deaths due to medical error may only be 1/3 of all error related deaths each year. Why?

A big part of why is that patients do not always know when errors occur. There has been extensive debate about patient notification of medical errors. The plaintiff’s bar is all for it. Bioethical arguments aside, most doctors are not. Why? They are afraid of getting sued. In fact, the original IOM report suggested anonymous reporting of medical errors. Needless to say, that has not happened.

Another major part of why lawsuits haven’t succeeded in reducing medical errors lies in the adversarial nature of negligence litigation. In the US, medical malpractice lawsuits follow a certain recipe. For the purpose of this post, the critical features are discovery, the use of experts to support the case, and the awarding of damages. Discovery means a presentation of all of the evidence. And once the evidence has been collected to support (or refute) the case, experts are used to argue whether or not malpractice occurred. Should the plaintiff prevail, damage awards are arrived at and these awards typically include medical damages (like medical expenses and lost wages) and pain and suffering.

Those of us who have been through lawsuits (either as a defendant or a witness) find all of this artificial and threatening. Discovery is very oriented to what is on paper, in black and white. It lacks the nuance of medical practice. The old adage that if it isn’t documented it didn’t happen is the applicable rule here. Experts are almost buffoonish (on both sides of the argument). Having heard a number of plaintiff experts I can genuinely say that some doctors will do (or say) anything for money. And damages are the toughest of all. Certainly medical damages are understandable but pain and suffering is tough to get a grasp on. And the really really big malpractice awards are all about pain and suffering.

Then there is the issue of plaintiff’s attorneys…. There is no love lost between malpractice plaintiff attorneys and doctors. There are many reasons for this, but a big reason is that doctors think of many of those attorneys as ambulance chasers. For the most part, they are paid on contingency. If they win, they get about 1/3 of the award.

In addition, lawyers are very powerful politically and have fought malpractice reform tooth and nail. Malpractice laws are all managed at the state level. Many states have tried to limit awards, often by capping pain and suffering. This has happened to some extent in 26 states. But more substantial reform has invariably failed. In fact, in some states, reform has more typically expanded the opportunities for the plaintiff’s lawyer. I should know, I live in New York.

In truth, neither side is innocent. Plaintiff attorneys do advocate for the patient. And doctors DO commit malpractice, though all bad outcomes aren’t due to malpractice. So what is there to do?

A number of solutions have been proposed (Medical injury? Don’t call the lawyers. - Niskanen Center). In Massachusetts, malpractice cases are reviewed by medical tribunals consisting of a judge, a lawyer and a physician and they decide whether they should move forward (https://www.massmed.org/tribunal/about/). Interestingly, this gets rid of about 16% of cases because they have no merit.

Another proposal involves “no fault” adjudication of malpractice. In this system, cases are heard by an administrative body, like a health court (The Jury Is Still Out on Health Courts | Journal of Ethics | American Medical Association). This body is independent, collects the evidence ,and then makes a judgment about damages. These courts are far more efficient than our system. But the awards are a lot smaller. There is some evidence that if such a system were put into place 2-3X as many patients could get an award.

More importantly, I suspect such a system would do a lot to encourage more open dialogue about medical errors. The long desired transparency is much more likely to be achieved if the doctor isn’t afraid of being sued. Plus the medical tribunal system might once and for all separate true malpractice from all other bad outcomes.

Allow me to explain. Imagine I am caring for a young woman with breast cancer and I recommend she receive doxorubicin. I carefully explain to her (via informed consent) that there is a small risk of cardiac damage. I do all the right things. I monitor her cardiac function before and after treatment. I administer correct doses. But unfortunately, she develops congestive heart failure. Maybe she even needs a heart transplant. Despite the informed consent, I fully expect to get sued. Why? Bad outcome. But this is, without question, NOT malpractice. And in a no fault system compensation for this unfortunate outcome can proceed without all of the lawsuit baggage.

There are those who believe that this entire discussion is making a mountain out of a mole hill. They argue that doctors win almost all malpractice cases. It is estimated that malpractice costs represent about 3% of all health care costs, about $60 billion dollars a year, and so not worth the effort (Medical Liability Costs Estimated at $55.6 Billion Annually | Commonwealth Fund). To be fair, the AMA puts that number much higher, most of it due to defensive medicine. But I think those people are missing the point.

Malpractice litigation has neither reduced medical errors nor has it adequately compensated those injured by bad outcomes. It has poisoned the physician patient relationship. It has kept medical errors in the shadows. And it has made a lot of good doctors pretty miserable. As we discussed in the post on physician burn out, reducing physician stress is good for all of us.

In the interim, a lot has been written about how to minimize your chance of being sued (Medical Malpractice - StatPearls - NCBI Bookshelf). This should be mandatory course material in medical school and residency.

What should we do about identifying and weeding out the incompetent or impaired physician? There is little or no evidence that malpractice litigation accomplishes this. The best predictor of whether or not a doctor is going to get sued is whether or not they have been sued before (Prevalence and Characteristics of Physicians Prone to Malpractice Claims | New England Journal of Medicine). If a doctor has been sued more than 6 times, they are 12X more likely to be sued again, and the top 1% of the most sued doctors are responsible for about 1/3 of all awards.

In fact there already exists a mechanism to identify these physicians and intervene. All malpractice awards are reported to the National Practitioner Data Bank, an open source repository of this information. Whenever a physician applies for (or renews) a medical license or hospital privilege form the applicant must acknowledge any and all submission to the data bank. Unfortunately, rarely does this result in any action by the regulatory body. Many states also have an office of professional conduct that has authority to intervene when there is evidence of unethical or improper behavior. Although these agencies get involved in cases of impaired physicians or sexual misconduct of physicians they rarely get involved with delivery of poor medical care. Maybe they should. Good doctors hate having bad doctors around.

In my next post, I will discuss why we need to focus on keeping primary care doctors happy and productive, particularly how we need to change primary care.