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Changing the Medical Malpractice System to Align With What We Know About Patient Safety and Quality Improvement

Sklar, David P. MD

doi: 10.1097/ACM.0000000000001733
From the Editor

Several years ago, I was sitting in a courtroom, trying to offer support to one of my colleagues who was a defendant in a medical malpractice lawsuit. The case involved an intoxicated driver of a motor vehicle who had injured his neck, leading to quadriplegia. As I watched the drama play out, hearing testimony, scanning the faces of the jurors and the witnesses, I kept thinking: “There has to be a better way. This is so painful for everyone.” The questions of error and fault depended on judgments of medical experts. One medical expert declared that errors had occurred from an inadequate physical exam of the patient. This expert pointed to lack of documentation in the medical record about the neck examination and the neurological examination; he also suggested that during the examination there had been too much movement of the neck. The other medical expert disagreed, noting that the physical exam had been well conducted and that the neck had been immobilized properly. The two experts and the lawyers argued about legal concepts such as standard of care and negligence, the cause of the paralysis, and whether any movement of the neck constituted malpractice. Yet I knew that the standard of care was not a sharp line; circumstances and resources could affect the best approach to a problem. I also knew that many bad outcomes, such as the paralysis this patient had experienced, were not due to negligence but instead were delayed results of an injury that occurred during the crash and that appeared during the delivery of medical care, due to swelling.

Such arguments are common in malpractice trials, where experts routinely disagree about errors and the standard of care. But shouldn’t experts who look at the same facts and the same medical literature reach the same opinion, just as experts usually do during our hospital’s case reviews when possible errors have occurred? The malpractice system, despite its dependence on the opinions of selected experts, seems to conflict with the principles of evidence-based medicine, which should lead to consensus.

As I watched the proceedings, my eyes moved back and forth between the plaintiff in the wheelchair, barely able to move his fingers, and my colleague, dressed smartly in a suit and accompanied by his attorney. I felt compassion for both of them: the man in the wheelchair, with a difficult life ahead of him requiring much support, and my colleague, with his anxiety, self-doubt, shame, and frustration with the long, difficult legal process. He was one of our best faculty and devoted to the needs of the poor and underserved. He had to sit in the room and listen as lawyers argued about whether he had been careless, dishonest, incompetent, uncaring, or lazy. Residents testified, but their memories were vague; the case had occurred three years before in the middle of the night. The notes in the chart were sparse. As the plaintiff’s attorney hammered away at the lack of documentation about a neurological examination, I watched my colleague on the stand tremble and stutter. I looked at the jury and wondered how a group of teachers, janitors, college students, clerks, and businesspeople could really understand what it was like to be in the emergency department and whether they could make sense out of the differing opinions of experts.

Eventually the case concluded, and the jury conferred for six hours before deciding that there was no malpractice. While my colleague was relieved, he never was the same again. Several months after the case finished, he left my hospital and stopped practicing for a time, worked in other countries, and traveled. Eventually he came to terms with what had happened and began to practice medicine again, but the trust that he had always given freely and completely to his patients had been replaced with wariness. The residents who had been involved had been similarly affected. And the patient was still a quadriplegic and would need assistance for the rest of his life. There did not seem to really be any winners.

I present this story about a malpractice case because I believe it represents an outmoded way of thinking about medical error, patient safety, and quality of care that has serious ramifications on our ability to improve our health care system. Malpractice is an adversarial system in which the goal is to find someone to blame for a bad patient care outcome associated with medical care and provide compensation.

If this process of identifying negligent doctors led to better health care, fewer errors, and compensation to those who were harmed, it might be worth the many consequences it causes such as high costs for malpractice insurance premiums, psychological trauma to those who are sued, defensive medicine, unnecessary testing, and mistrust between physicians and patients. But there is little evidence that the malpractice system has reduced errors or improved quality of care.1 In fact, fear of malpractice likely leads to a reluctance to identify errors that could result in better health systems and individual improvement.

Studdert et al2 have described the waste from high costs, inaccurate adjudication, and long time frames of malpractice litigation. In their study of 1,452 claims they found that the average time from injury to resolution of a claim was five years. Only 63% of claims involved an error. Payments were made in 10% of cases without errors, and no payment was made in 16% of cases with errors. Litigation consumed 54% of the dollars allocated to a malpractice case. Thus, the current malpractice system is costly and inaccurate in its allocation of damages, and much of the money expended goes to lawyers and other costs of litigation.

But costs of malpractice go beyond the money spent on a lawsuit. The malpractice liability system also increases defensive medicine, accounting for 2.4% of health care spending according to estimates by Mello et al.3 Malpractice litigation and fear of malpractice have deleterious effects on physician well-being, causing anxiety and depression, particularly during the trial.4 Fear of malpractice likely affects physician–patient communication and contributes to a lack of disclosure and review of errors. Rather than recognizing that many errors are the consequence of inadequate information, unpredictable events, and suboptimal workplace conditions, errors become something for physicians to fear and hide from. West et al5 have described how errors lead to resident distress and loss of empathy. Fear of malpractice also inhibits communication and affects the use of shared decision making with patients because a shared decision about care might deviate from current standards of care.6

How might we change our current approach to malpractice and find a better way to address medical error? I have three suggestions. They involve embracing medical error as an opportunity for learning and quality improvement (QI) in health care, building better support systems for physicians involved in a bad patient care outcome or medical error, and engaging in advocacy to change the malpractice system so that it aligns with patient safety principles.

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Embrace Error as an Opportunity for Learning and QI in Care

Medical education has a complex relationship with medical error. Medical education has been built on the theory that we learn from experience. Errors are a natural part of experience. The journey from novice to expert requires deliberate practice in which errors and feedback are integral components.7 In Kolb’s8 cycle of learning, students use experience to reflect and construct meaning, and they must experiment with new ideas to learn. Errors are often part of the experience, experimentation, and learning. Yet, in medical education, errors can harm patients. Supervision of trainees has been the major mechanism to limit harm to patients in educational settings, but supervision is a delicate balance in which increasing the independence of the learner too quickly can lead to errors. It is also clear that errors are sometimes a function of the work environment, which needs to be continuously reviewed and improved. Myers and Nash9 have suggested that engagement of residents in quality improvement and patient safety (QIPS) activities could help change the institutional culture at academic health centers to prioritize QIPS, but there are significant barriers. Wu et al10 have shown that when learners make errors, they often do not discuss them with their supervisors. In this issue of Academic Medicine, Butler et al11 note that residents are “unclear, unsure, and not in agreement about the purposes and meaning of QI initiatives as part of their training.” Butler et al go on to explain that residents feel that the aims of QIPS initiatives are often in conflict. Also, they compete with the work activities related to patient care and are not valued as academic pursuits. The authors suggest that to overcome this resistance from residents, there needs to be mentorship of residents by faculty, better information about quality projects and their purposes and successes, and incentives for residents to participate in QIPS initiatives.

Morbidity and mortality (M&M) conferences can provide an open forum for disclosure of errors. However, M&M conferences are often provider focused and can lead to shame and embarrassment. The systems issues that contribute to an error or bad outcome may not receive the attention and follow-up that they require. Fortunately, there have been recent examples of the integration of education and clinical care leadership in M&M conferences.12,13 This should become standard practice so that health care providers share what they know about errors with administrators who have responsibility and control over care systems.

Simulation can also provide a way for students to make errors without harming patients. Barsuk et al14 have demonstrated the efficacy of mastery learning in simulation for preparing residents to perform central line insertions in the intensive care unit. Investment in simulation and development of models for procedural mastery are proactive ways to reduce errors during education. However, not all errors can be prevented by better procedural training. Errors also occur from misdiagnosis, communication gaps, incorrect administration of medications, physician fatigue, and interruptions of workflow. Technology currently in use for patient monitoring could provide opportunities to evaluate some of these processes. Barry et al15 in this issue describe the use of telemedicine video recordings in the intensive care unit to evaluate communications during patient handoffs. If we can use clinical information such as this to pinpoint vulnerabilities in health processes, we may be able to recognize errors as signposts on the way to excellence in health care. Errors could help improve health systems, but that will only happen if we identify them, analyze them, and develop a plan of action that will usually involve education. Initiatives aimed at the malpractice system must also focus on medical error. And the most likely way for that to happen is through support of medical education linked to QIPS.

Finally, just like students and residents, practicing physicians face the challenges of continuing to develop expertise, learning new skills, and improving the health systems in which they work. They have to decide which innovations to adopt and which old practices to abandon. When they make errors, the processes of QI, continuing education, and medical malpractice may take separate tracks, frustrating efforts to reduce errors in the future. Kitto et al16 have described the opportunities for better integration of continuing education and QIPS that could address errors made by practicing physicians and could be helpful for efforts to reform the malpractice system.

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Build Better Support Systems for Physicians Involved in a Bad Patient Care Outcome

Because physicians care for people with serious health problems, there will inevitably be tragedies, suffering, and death associated with that care. Sometimes errors may contribute to the tragedies and suffering. Physicians and residents experience anxiety and stress when they are involved in a case where error is possible. If an error leads to a malpractice allegation, the process of review and litigation can go on for many years.

Shapiro and Galowitz17 have described the creation of a peer support network for physicians who experience adverse or stressful events, “especially one that involves a medical error [or] malpractice litigation,” to build a culture of “shared organizational responsibility for clinician well-being and patient safety.” Residents may experience shame when they present cases with errors and bad outcomes at M&M conferences. Bynum and Goodie18 have discussed the need for recognizing the feelings of shame and guilt that may accompany an error and how to support learners through acknowledging the emotional reactions of shame and guilt, avoiding humiliation, and providing feedback.

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Use Advocacy to Align the Malpractice System With Patient Safety Principles

It may also be time to consider reform of the current malpractice system through advocacy at state and national levels. Kessler1 describes several options for reform: the use of guidelines as a defense against a questionable claim of negligence; movement toward an enterprise liability that would hold institutions, rather than individuals, responsible for malpractice; binding alternative dispute resolution; and administrative compensation systems such as no-fault systems that could provide compensation to more patients with far less overhead. Mello and Kachalia19 offer a detailed analysis of options for malpractice reform that include state approaches such as caps on noneconomic damages. The authors provide a useful matrix to evaluate the options related to reform. For each option, they identify the effects on claims and frequency of costs, overhead costs, and liability costs; on defensive medicine; on supply related to physicians and health insurance premiums; and on quality of care.

Malpractice reform could lower insurance premiums, improve access to high-risk specialties, and lower costs of care from defensive medicine. But to secure public support for reform efforts, there would likely need to be a linked commitment to error reduction and the identification of providers who may be practicing poor-quality medicine. Unified advocacy efforts by patient care groups, medical specialty organizations, and academic health centers could align around patient safety and improved value. Medical education could provide the tools for students and residents to participate in both patient safety and advocacy efforts.

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Health Professionals Must Take Ownership of Medical Error and Malpractice

It is time for medical malpractice to come out of the shadows where it can cause isolation, shame, burnout, and depression, as well as great wastes of time and money. By embracing error as a natural part of the learning and improvement processes and prioritizing the identification, analysis, and resolution of errors as a way to integrate our clinical and educational systems, we can support our health professionals and our patients. Health professionals must take ownership of medical error and malpractice rather than ceding it to lawyers. Health professionals need to be able to discuss errors freely and openly, take responsibility, and use errors to improve care. When errors occur, health professionals need to recognize the significant psychological damage errors cause to their fellow health professionals and give them the support they need to discuss what happened and to learn from it. There is also a need to support patients and families injured by medically related events, and to help those patients gain compensation and access to needed ongoing care so that medically related harm does not turn into a financial disaster for them. Finally, the malpractice system needs to be reformed so that it aligns with what we know about causes and prevention of medical error. This will require an effective and organized advocacy approach.

Malpractice reform can lead to more effective physician–patient relationships, lower costs for health care, better quality of care, and a healthier workforce. Such reform can also help prevent destructive courtroom situations such as the one described earlier. When errors occur, reform can lead to a focus on improvement rather than blame. Equally important, reform can ameliorate the psychological, financial, and time costs for all involved.

Medical education has key roles to play in malpractice reform. As mentioned earlier, initiatives aimed at the malpractice system must also focus on medical error by supporting medical education linked to QIPS. Also, the integration of education and clinical care leadership in M&M conferences can help improve health systems. Finally, medical education can also provide the knowledge, skills, and motivation for a successful advocacy approach and help bring about the culture change that will be needed to accompany malpractice reform so that errors become linked to learning and safety rather than blame and shame.

David P. Sklar, MD

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© 2017 by the Association of American Medical Colleges