Ezra kindly responds to my post from Friday with a more reasoned stance than “just don’t commit malpractice.” His response, however, boils down to two main theses:
- Frivolous Lawsuits are not as common as generally thought, and
- Standardization can reduce the opportunity for error and thus decrease the frequency of medical malpractice suits.
Well, yes, but I’m not sure that addresses the typical physician’s complaints regarding the current med-mal system.
For example, the “frivolous” moniker is a pretty ambiguous term, especially to doctors’ loose understanding of legal terminology. To a physician, a “frivolous” case is one in which there was no error — where the standard of care was met, but perhaps the outcome was bad. Or to put it another way, doctors tend to feel that when they are vindicated in court, it’s prima facie evidence that the case was frivolous. This conviction is bolstered by the little-recognized fact that physicians win the vast majority of cases that actually go to trial, and the vast majority of claims filed do not result in a financial settlement.
So physicians who go through the wringer of even a successful malpractice defense cannot be blamed for coming away with the feeling that the whole exercise was frivolous. On the other hand, the more accurate definition of a “frivolous” case is that it was a case with no merit whatsoever, a much more stringent qualification. This would require, for example, no patient injury, or a suit against a physician who truly did not provide relevant care to the injured patient. These cases are in all likelihood quite uncommon and it does not help the dialogue between frustrated physicians and policy wonks that we each seem to be using the term frivolous differently.
What bothers physicians more, however, about the current system, is the disconnect between actual negligence and compensation. Ezra cites himself, circa 2006, which links an NEJM study I’d reviewed at the time but had since forgotten [PDF link]. It’s interesting that the conclusions of the authors would be diametrically opposed to those of a typical physician (especially a physician defendant). The authors conclude that “Claims that lack evidence of error are not uncommon, but most are denied compensation.” Which, as far as that goes, is good. Mostly.
But the problem is that the sensitivity and specificity — the accuracy, in non-med-stat-speak — of the system is quite poor. Of cases where the reviewers felt there was evidence of an error, only 73% were compensated. Call those the “True Positives.” And of cases where there was no evidence of physician error, only 72% were resolved without compensation — call those the “True Negatives.” Is there a medical test in use which has a sensitivity and specificity of only 72%? No! That’s better than flipping a coin, but not by a lot. In more than a quarter of cases this study tackled, the system got the outcome wrong. Physicians are used to substantially more accuracy than in the tools we use in our daily practice, and it’s maddening to be judged by a system which is so terribly imprecise. (Some of us cynics might suspect that the real-world performance of the system is even worse than 72%.)
This is why physicians are so adamant about the need for medical malpractice reform. There is a disconnect between actual negligence and the likelihood that you will have to pay an award. The docs’ reflex is just to cap awards so the financial risk is limited. But that does not address the problem of verdicts simply being wrong — both ways. That would require a more fundamental solution like special health courts. That sort of reform would have the great benefit of protecting physicians from unjust verdicts, but would also better ensure that injured patients were justly compensated.
Further, Ezra hits the nail on the head with his caveat “this debate is poorly served by the term ‘malpractice.’” Malpractice is a term used very loosely by different writers, as shorthand for “doctors who injure patients.” Unfortunately, there’s a lot of conflation of the three separate ways physicians can hurt patients, and each requires a different level of concern and a different mode of redress:
- Systemic Errors
- Medical Errors
Systemic Errors are the ones that get me most interested, and are possibly the most lethal things health care workers do. Consider the ICU nurse who does not practice good hand hygiene and blithely spreads MRSA among the several patients she may care for in a given day. Or the lazy ER doctor who doesn’t bother to drape the patient and scrub his hands before putting in a central line. Ezra made note of the huge advances anesthesiology has made in addressing these errors and, resultantly, reducing patient harm and malpractice liability over the years. It’s a pity this approach hasn’t spread to the rest of the house of medicine more rapidly, but the truth is that the aviation metaphor applies most aptly to anesthesia: they do the same thing every time, day in and day out, and standardization is relatively easy. It’s only in the last few years that smart people like Peter Pronovost have realized that there are things which can be standardized in the ICU and the OR in the same way, with huge benefits. We’re even looking at these measures for the ER, but that is more challenging give what a chaotic environment it can be and how infrequently we see certain pathologies. Having said all that, systemic errors are not malpractice and in most cases are not appropriate for compensation by the medical liability system. More on that later.
Medical Errors are harder to define, but there are certainly cases where the doc did something that seemed right at the time but it turned out terribly wrong. A real example: I once saw a woman with a headache. She had a history of chronic migraines, came to the ER frequently for them, and this seemed more or less typical for her. I gave her some pain meds and sent her home with no work-up. Turned out it was a ruptured aneurysm, and I saw her again the next day before sending her to the neurosurgeon. There were a couple of little clues there, but honestly, there was no way on earth that I could have figured it out on the first presentation. Fortunately, the ending was happy for both of us. This, however, seems to fit the IOM Definition of an error: “Failure to complete a planned action as intended, or the use of an incorrect plan of action to achieve a given aim.”
My plan of action: analgesia & observation, was incorrect. It was incorrect for reasons that may not have been preventable, in that they were due largely to “patient factors,” but it fits the definition nonetheless. The prevention of these errors is as huge as the entire scope of medical knowledge; it defies elimination as long as doctors are fallible human beings. With attention and commitment, I think that the house of medicine is making progress, and I can’t decide if they are huge strides or baby steps. But we are working on it. Again, however, these errors are also in many or most cases not malpractice and should not be compensated in the courts.
Negligence is something different and should be considered as beyond a simple error. Different states define the term differently, but in general it might be defined as “the failure to do something which a reasonably prudent person would do under like circumstances.” Of course, what is prudent and what is negligent varies greatly in the eye of the beholder and based on the details of a given case. But the key is this: the absence of negligence does not require perfection, just prudence. Or, as the old line in medical risk management goes: “You’re allowed to be wrong, but you’re not allowed to be negligent.” A bad outcome or even the presence of a medical error as defined above are not in themselves demonstrative of negligence. Systematic errors almost by definition cannot be negligent in that it presupposes that everybody in a given system was imprudent and unreasonable (at least in the case of evolving science and quality standards; once industry standards are well in place, deviation from those could be negligent).
Negligence is supposed to be a higher degree of screw-up, the sort of thing that when another doc hears about the case they say, “Oh no, he didn’t really do that, did he?” It’s not just an error, it’s a flagrant error. At least that’s how it’s supposed to be. And it’s negligence that is supposed to be addressed in the medical liability system.
My point in breaking out these different types of injuries is this: the first two classes of patient injury, those due to systemic errors and those due to medical errors, are not in and of themselves “malpractice” and should not be compensated in the tort system. Negligence is required before it is malpractice. Unfortunately the extreme subjectivity of that term and the variability from state to state and county to county, in addition to the randomness of juries makes it hard to draw a line in the sand and separate the two.
The specific details of any given case, of course, are highly determinative of whether negligence was present. But it would be very helpful to the dialogue and to the possibilities for health care reform as well as medical malpractice reform if those of us who write about health care related issues were more precise in our terminology and if we could all avoid lumping all these problems together.
*This blog post was originally published at Movin' Meat*