Punishing the provider
Fear of tort system is driving some doctors away, thus limiting choices
Recently, we’ve heard stories of air traffic controllers falling asleep on the job, which fortunately caused no one any harm; and of a bus driver speeding out of control, which killed 15 people on Interstate 95 in New York state.
There was also another story that scares many of us—that of a surgeon operating on the wrong eye of a young child in Portland, Ore. Fortunately in that case, the doctor caught her mistake and switched the surgery to the correct eye before serious damage had been done. And she admitted her error to the boy’s mother immediately upon emerging from the operating room.
In all candor, that’s not usually what happens. A recent study by Dr. David Classen of the University of Utah School of Medicine showed that hospitals and a government reporting system record only about 10% of the “adverse events,” including complications such as infections and outright errors, that actually occur while a patient is hospitalized. According to HHS Secretary Kathleen Sebelius, one-third of all patients admitted to hospitals in this country suffer some harm during their stay. Eight percent of those who experience an adverse event require a life-saving procedure to correct it, face permanent injury or die.
Admitting mistakes is the first step in correcting them. But because of the U.S. legal system, many in the medical world see admitting an error as a step on the road to professional and financial ruin. However careful and wellintentioned the practitioner was, and however forewarned the patient and family were about potentially unfavorable outcomes, the doctor and the hospital are at serious risk for a malpractice lawsuit.
Fear of lawsuits and, especially for obstetrician/gynecologists and surgeons, incredibly steep malpractice insurance premiums, have driven some doctors either out of the profession or into other specialties. This limits choice and the availability of care for patients who need it.
It also has driven up costs, as doctors practice defensive medicine, ordering tests and scans their experience tells them are not needed or warranted, but whose absence in a patient’s file could be spun in a litigious setting as malpractice.
In many ways, the power to make decisions based on their education and experience is taken away from medical practitioners and given to dueling lawyers. Thus, a physician’s attorney, advocating zealously for the client, must tell the doctor never to admit anything adverse, while a plaintiff’s lawyer will attack on every level to win the biggest jury award or insurance settlement possible.
That’s not to disparage the attorneys, who are doing their jobs. But it does point to the main problem—the system of tort law and the excessive monetary resolutions that have emerged from our courts.
Nobody would deny a patient who has been harmed the financial support needed to get the appropriate care. However, a legal system that permits huge punitive awards on top of justifiable damages casts a large shadow over our ability to admit and correct our mistakes.
In May, for example, a Connecticut jury returned a $58.6 million verdict, the largest medical malpractice award in the state’s history, against an obstetrician and his practice over the tragic birth defects that left a child unable to walk or talk. Some $8.6 million of the award was for economic damages for the child, who will need special care throughout his life. But $50 million was in noneconomic, or punitive, damages.
The lawyers on both sides are still disputing the facts, and an appeal is planned. There was no evidence, however, that the doctor had been intentionally negligent. Yet, as some stories have noted, his liability, thanks to an outof-control tort system, probably far exceeds his insurance coverage. The doctor may lose his practice, have to put his employees out of work and never again be able to give the care that has helped thousands of other families give birth to healthy, happy children. He does not deserve to be punished to the tune of $50 million.
Would it not have been better to put this incident through a system that assured the affected child adequate lifetime care? Rather than litigating the facts before a jury of laypersons, wouldn’t it have been better for medical experts to investigate the case and help this physician and others understand where things went wrong and how to guard against it happening again?
The federal government has recognized the problem and this fiscal year began a pilot program for states to evaluate alternatives to the tort system. These alternatives would encourage quick and equitable settlement to malpractice cases, and at the same time, take steps to ensure that medical errors are reported and their causes corrected. A report is due to Congress by Dec. 31, 2016.
Many professionals— air traffic controllers, bus drivers, neurosurgeons—have lives entrusted to them every day. They have a duty to perform their jobs in the best way they can to ensure the safety of those in their care.
But sometimes, despite their best efforts and without harmful intent, something goes wrong. Punishing the practitioner neither cures the original ill nor helps fix the cause of the error. Only knowledge can do that. And today’s system merely pushes the problem further from the light of understanding.