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Anesthesiology:
Correspondence

Is the System at Fault, or Its Players?

Hogan, Kirk M.D.; Laravuso, Raymond B. M.D., J.D.

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To the Editor:—
We read with great interest the article and accompanying editorial describing the mismatch between potential and actual claims and remedies in anesthesia malpractice litigation. The authors conclude that the discrepancy resides either in the peer review process of the study or in the legal system. Despite use of residents in training as peer reviewers, the authors argue for the latter. Both pairs of writers decry the existing tort system and put forward proposals for its overhaul. As a third interpretation, we suggest that the problem lies not so much in the system of litigation society has adopted, as in the training and credentialing of its practitioners. To scrap a system that has accomplished much good (handicap access, gender equity, the tobacco settlement to name a few) would be unwise. To do so at a moment in time when the personal injury tort system and its incentives represent the physician’s best weapon in the battle for autonomy against managed care intrusions, would be foolhardy in the extreme. While the pathophysiology of contemporary malpractice litigation runs deep, we believe less radical solutions will be sufficient to meet the challenge of assuring heightened patient safety.
As a first step anesthesiologists must put our own house in order. Together with Liang and Cullen we share the call for a stronger focus on evidence-based medicine and safety outcomes, but this alone will fall far short. It is crucial that the principles of scientific medicine be introduced to first year medical students in depth, to include biostatistics, experimental design, hypothesis testing, epidemiology, and public health. Skilled use of these tools must be reinforced and sharpened during the years spent in residency and fellowship training. Wherever possible reliance on anecdote, peer pressure, appeal to authority, economic expectation, personal bias, and imposition from the boardroom must be abandoned before application of civil law instruments (e.g., expert witnesses, peer review) can be expected with maximal efficacy. Accusations of “junk science” in the courtroom ring hollow to the extent we are tolerant of junk science in the operating room, pain clinic, or intensive care unit.
Second, we advocate the founding of a Specialty Board of Legal Medicine. While comprehension of the framework of legal medicine must be part of every medical student’s education as a requisite to graduation, the magnitude and subtlety of relevant law, and explosion in biomedical knowledge, warrant full specialty status for legal medicine practitioners. Proliferation of board accreditation is not to be lightly countenanced for fear of fractionating medical specialties along the faultlines of conflicting agendas. But legal medicine, which penetrates every aspect of anesthetic practice as well as that of our colleagues, carries the unique potential to promote coherence and unity in the face of mounting external threats. Only practitioners with mastery of both medicine and law will be equipped to negotiate the tidal changes we now face; those versed in one but not the other operate with an arm tied behind their backs.
Third, efficient execution of the existing system obliges the legal profession to create a corresponding Medical Malpractice Bar, with documentation of an undergraduate degree in the life sciences, specialty training during law school, passage of a rigorous exam, and continuing legal education to retain the credential. Precedent for such a scheme may be found in the successful operation of the Intellectual Property Bar. Factual arguments before a jury selected from the community must be preserved, but with courts controlled by a specifically skilled and experienced judiciary.
In the survey, 13 individuals were harmed by deviations from standard care determined by peer review, yet none resulted in legal action. Were the circumstances of disclosure to these patients at the time of the injury investigated? Did the injured patients seek legal counsel but receive advice against taking action? Full disclosure accompanied by an informed decision under counsel not to file suit entails substantially different interpretations of the data (e.g., legal malpractice) than incomplete, delayed or failed disclosure (e.g., negligent or intentional medical cover-up). Do the authors and their peer reviewers believe these patients should now be contacted? If not, why not?
As medicine forgoes patient-centered decision-making in favor of population-based determinations aimed at marshaling scarce resources, physicians must be reminded that the legal system will not undergo a parallel transformation. If doctors and other caregivers believe their patients deserve at least the level of personal zealous representation available to a client in a law office, they must also perceive that a tort system, modified to increase the skill level of its actors, is their last, best defense. Society does not tolerate induction of a coma or neuraxial blockade by the unskilled. Should we be surprised when the bar to practice within a complex and evolving system is so low for physicians and lawyers alike?
Kirk Hogan M.D.
Raymond B. Laravuso M.D., J.D.

© 2000 American Society of Anesthesiologists, Inc.

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