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Commentary: Medical Malpractice and Patient Safety: Tear Down That Wall!

Alper, Eric J. MD; Wachter, Robert M. MD

doi: 10.1097/ACM.0b013e3182086f14

Although medical malpractice influences the way that physicians learn to practice medicine, information related to malpractice cases is among the most closely guarded data in the hospital and is rarely available to training programs. In this issue, Hochberg and colleagues describe an intervention in which they used data from their hospital's closed malpractice cases as part of a training seminar for surgical residents on malpractice. The authors of this commentary believe that there is very low risk and great potential value to more openly sharing this type of information. They point to potential conflicts between the goals of the risk management discipline (as it has been practiced in some settings in the past) and those of the patient safety discipline as one reason such data are not disseminated widely, and they highlight what they believe to be hopeful trends toward greater transparency. They call on patient safety professionals and educators to use their hospitals' malpractice data to better prepare learners and improve patient care.

Dr. Alper is professor of medicine, Department of Medicine, and former patient safety officer, UMass Memorial Medical Center/University of Massachusetts Medical School, Worcester, Massachusetts.

Dr. Wachter is professor and associate chairman, Department of Medicine, chief, Division of Hospital Medicine, and Marc and Lynne Benioff Endowed Chair, University of California, San Francisco, California.

Correspondence should be addressed to Dr. Alper, Department of Medicine, University of Massachusetts Medical School, 55 Lake Avenue North, Worcester, MA 01655; e-mail:

Editor's Note: This is a commentary on Hochberg MS, Seib CD, Berman RS, et al. Perspective: Malpractice in an academic medical center: A frequently overlooked aspect of professionalism education. Acad Med. 2011;86:365–368.

None of us like to talk about malpractice. As providers, we respond to the topic with shame, fear, and often anger over the devastating effects malpractice cases can have on physicians' reputations and personal well-being.1 Policy makers and others who are concerned about the “cost curve” worry about the cost of defensive medicine in the United States, which is estimated to be around $40 billion per year.2 Even patients involved in malpractice cases find the experience deeply unsatisfying—both because lawsuits are confrontational in nature and because a substantial portion of any compensation awarded (often more than half) goes to pay expert witnesses and legal fees.

Medical malpractice has such a penetrating influence on the culture of medicine and the way we practice that it seems as if the topic would receive major attention in medical school and residency curricula, as well as within the quality improvement and patient safety arenas. But that is not the case. In this issue, Hochberg and colleagues3 describe an hour-long seminar they developed for surgical residents on malpractice issues using lessons learned from surgical malpractice cases at their academic medical center. Not surprisingly, residents' pretest knowledge of the most common causes of malpractice suits and the malpractice process was poor, and it improved after this relatively simple intervention. It seems logical to believe that actual malpractice cases would be effective teaching vehicles, given that such cases are usually dramatic, memorable, and, yes, good vehicles for instilling some fear and humility into our learners. But why is this article important?

Historically, malpractice data have been among the most closely guarded within the medical center, with access limited to a select few administrators and clinical leaders. Risk managers and administrators have worried that such information, if disseminated widely, could damage the hospital's reputation and referrals. Moreover, in an environment in which state and federal regulators and accreditors pass judgment on hospitals, administrators have worried that public disclosure of malpractice cases might trigger other types of scrutiny. Although sharing such information and discussing cases—particularly already settled cases—in a hospital conference seems to carry a low risk of generating a cascade of unpleasant consequences, many risk managers have seen their role as converting “low risk” situations to “no risk” ones for their employer. Given the financial stakes, this stance is not hard to understand.

Why has this firewall between the lessons of medical malpractice cases and the rest of the health care system been so hard to breach? We believe the answer lies in the cultural history of two linked but different fields: risk management and patient safety.

The sequestration of medical malpractice data represents a view of such data as being properly stored within a risk management framework. Since the genesis of the patient safety field in 2000,4 the contrast between this framework and the more open and transparent patient safety framework has become increasingly stark.

Although risk management has a long history in health care, the field really took off in the 1970s during a period of significant growth in the number of malpractice suits with high settlement amounts. Although most risk managers are committed to error prevention, the discipline exists primarily to protect the assets of organizations and their providers.5 Risk managers engage in a number of key tasks to that end: risk identification, analysis, control, and financing. These multiple roles place risk managers in a conflicted position. They must reduce risk to the organization by controlling the spread of information—the usual practice of parties engaged in (or potentially engaged in) litigation—but they must also reduce future risk. Sharing information about critical events may educate providers and help reduce future risk, but it also threatens the control of sensitive information which may result in organizational risk. Despite the existence of peer-review statutes in many states (which legally protect from discovery information that is used for internal analysis, review, and quality improvement), this information is typically shared only sparingly and cautiously.

In contrast, one of the key principles of the patient safety field is to encourage a culture of openness, allowing providers to learn from mistakes and improve dysfunctional systems. Patient safety professionals actively seek to spread information about how to best engineer care to prevent errors and how to learn from adverse events that have occurred. In the early days of the field, when such individuals tried to use information about serious adverse events to prevent future harm, they frequently encountered pockets of resistance—both from the risk managers, who worried about widespread dissemination, and from the physicians involved, who preferred to keep such information under wraps to avoid both legal risk and embarrassment. It was likely even more challenging when the same person served as both the risk manager and the patient safety officer, as was often the case (and remains common in smaller hospitals). That person had to strike a balance between two conflicting approaches—one tending toward openness and widespread dissemination of data, the other toward sequestration of information—in order to perform both jobs.

Important changes have occurred over the last decade, however, that have made hospitals more comfortable with moving toward transparency. Hospitals now routinely share quality-of-care data with regulatory organizations and the public.6 Ten years ago, such information, if even available to hospital administrators, was also closely guarded. Further, patient safety organizations have been established at the regional and state levels to aggregate and disseminate knowledge regarding adverse events and near misses. Finally, within health care organizations, new forums for discussing errors have sprung up, such as improved morbidity and mortality conferences and root cause analysis meetings, increasing the level of comfort with and perceived value of such discussions. All of these trends have been aided by a dominant theme in patient safety that holds that errors are usually the result of systems failures rather than individual carelessness,4 a paradigm that makes discussion of such cases less fraught with emotion and fear.

There are other trends that highlight the potential value of discussing medical malpractice cases to promote patient safety education. More and more organizations and journals are publishing analyses of pooled closed claims and providing important lessons from these aggregated data. This practice began with the key work of the Anesthesia Patient Safety Foundation in 1985,7,8 which has been emulated by other specialties recently.9 Moreover, hospitals are increasingly adopting policies of open disclosure of adverse events to patients and their families. Such disclosure, which is a regulatory requirement as well as ethically and professionally the “right” thing to do, has been found to lead to lower rates of claims, earlier resolution of malpractice cases, lower settlement amounts, and improved sense of closure for patients and families.10

Nevertheless, although these hopeful trends point toward more open discussions about malpractice experiences, we could identify few published papers reporting specific training around medical malpractice issues. This is one reason we applaud Hochberg and colleagues3 for their effort. The other reason is the data they share regarding surgical malpractice claims at their institution. We wish they had described some of the process involved in helping their risk management department agree to disseminate these data. In our experience, such discussions can be challenging. Others would also benefit from the experience of those who have successfully negotiated a more open approach.

Risk managers' concerns about sharing such data are understandable but may well be overblown. One of us (R.M.W.) has openly published hundreds of accounts of medical errors involving adverse events and even negligence.11–13 Although he has been warned repeatedly to be careful about the medicolegal implications of disseminating such information, he has never received even a single inquiry from an interested attorney. In the medical profession, therefore, we may have overstated the risk of openness and underestimated its value. Our judgment is that discussions of malpractice cases, particularly ones that have long since been settled or closed, carry a very low legal risk. In fact, we wonder whether stated concerns about the legal risk of dissemination are not, at times, convenient excuses to shield us from other risks: the shame and embarrassment that are often attached to medical errors.

Given the tort system in the United States, most of our current learners will be sued at some point in their careers, and those in high-risk fields like obstetrics–gynecology and neurosurgery will likely be sued several times. Educators must ensure that trainees understand the malpractice system, how they may avoid litigation, what may happen if they are named in a malpractice suit, and the nature of support available to providers who find themselves involved in a malpractice case.

However, the most important reason to open the black box of medical malpractice data is to finally expose the unique and powerful lessons that can be learned from these high-stakes events. Only by sharing such information more openly, and by synthesizing, researching, and teaching about it, will we be able to identify, accelerate, and spread improvements.

The patient safety movement is moving forward.14 In too many health care organizations, risk management continues to maintain one of the last remaining information silos. The danger of sharing information about adverse events and malpractice is likely overestimated, and keeping it secret almost certainly hampers improvement. It is high time that we tear down the wall that cloisters this critical patient safety information from our clinicians and trainees. As we do, it is crucial that clinician–leaders, medical educators, researchers, and those working in patient safety use this information prudently and effectively.

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Other disclosures:

Dr. Wachter reports having an equity interest and/or serving on paid advisory boards for PatientSafe Solutions, receiving support for helping to lead a leadership training program for IPC–The Hospitalist Company, receiving honoraria from the American Board of Internal Medicine for serving on its board of directors and executive committee, receiving honoraria for many speeches on patient safety and quality, receiving support from John Wiley and Sons for writing a blog, and receiving funding under a contract from the Agency for Healthcare Research and Quality for editing two patient safety Web sites and royalties from publishers from two books on patient safety.

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Ethical approval:

Not applicable.

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