Pun­ish­ing the provider

Fear of tort sys­tem is driv­ing some doc­tors away, thus lim­it­ing choices

Modern Healthcare - - Opinions Commentary - Frank Corvino Frank Corvino is CEO of Green­wich (Conn.) Hos­pi­tal.

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.

Newspapers in English

Newspapers from USA

© PressReader. All rights reserved.