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PERSPECTIVEThe Medical Liability Crisis Of 2003: Must We Squander The Chance To Put Patients First?
Medical liability reform should be aligned with a patient-centered, systems-based approach to preventing injury. Lessons learned about medical risk are now buried by the legal system, and communication about risk is haphazard among health care providers and across the interfaces of our legal, regulatory, and health care systems. Tort reform can be a vehicle for breaking down systemic barriers. Proposed reforms include (1) requiring disclosure of medical errors and restricting the use of information disclosed as evidence of guilt; (2) outlawing confidentiality agreements when malpractice cases are settled; (3) abolishing the National Practitioner Data Bank; and (4) establishing a national patient safety authority.
Given our nation’s growing awareness of medical error as a major public health problem since at least 1999 and our increasing post-9/11 consciousness of the inherent riskiness of life in the complex, modern world, one would hope for some movement forward in considering more thoughtful reform proposals.1 As William Sage discusses in the preceding paper, neither maintaining the legal system status quo nor enacting reforms that restrict claimants’ legal remedies are solutions reasonably calculated to achieve the articulated goals of the civil justice system, one of which clearly is to promote patient safety. Slowing the increase in physician premium costs does nothing to improve the legal system’s deterrence of medical error. Fomenting anger against providers may produce larger jury verdicts—and, not incidentally, larger contingency fees—but it doesn’t improve safety. Effective prevention of medical harm in this, the first malpractice crisis of the new century, requires thinking that keeps pace with the increasing difficulty of managing medical risk. Every new peak in this cyclical crisis encounters a health care sector that treats sicker patients, is more operationally complicated, and, therefore, according to safety science principles, is more prone to accidents. It follows that more patients are exposed to harm with each successive lost opportunity to upgrade our public policy approaches for producing consistently safe care. Organizations that manage complex, dynamic risks reliably do so by flushing out information about the risks of failure. So-called high-reliability organizations are dedicated to constant learning, realizing that the infinite combinations of causal factors that produce accidents in complex work cannot be comprehensively foreseen.2 The inevitability of human error and the proneness to systems failure are accepted as "normal."3 These cultures do not scapegoat humans who err while acting in good faith. They do punish complacency, cover-ups, or other failures to contribute to the community effort of identifying and managing risk. Indeed, organizational praise or reward for the report or admission of error often serve as incentives for a commitment to systems "transparency."4 Far from encouraging transparency in health care, our adversarial legal system has normalized hiding information about risk. Victims’ rights advocates continue to express intolerance for error that is totally inconsistent with a scientific understanding of human and complex system performance yet are much too lenient in accepting the sealing of court records when cases are settled.5 What results is a health care culture that lives in fear—or often denial—about the ability to prevent errors completely yet is complacent about or afraid of doing what is possible to contribute to systemwide learning and injury prevention. Accidents attributable to error will never be eliminated, but many sectors have engineered dramatic reductions.
Let us consider these stories as we reconstruct our approach to tort reform. Medication mix-up. In December 1995 seven-year-old Ben Kolb died during elective surgery at Martin Memorial Hospital in Stuart, Florida, when identical dishes containing different medications were confused by the surgical team. As a result, concentrated adrenalin was administered instead of lidocaine, the anesthesia agent Ben was meant to have. To the hospital’s credit, it fully disclosed the course of events to Ben’s parents and, with their permission, promised to publicize the analysis of the accident so that other health care systems could learn. In 1996 and 1997 Ben’s doctors and the hospital’s chief executive officer and risk manager spoke at patient safety conferences, published their story in numerous venues, presented it to the Institute of Medicine as that body developed national patient safety policy, and saw their lesson learned anchor a New York Times Magazine cover story.6 Yet in January 2002 a Dateline NBC investigation reported that hospitals across the country continued to have the same dangerous process in place, that operating room nurses were not aware of the risks, and that hospital accreditors had not addressed the process defect in their standards.7 Failure to identify and treat. In March 1995 Cal Sheridan was born a healthy full-term infant in a major birthing center.8 On his sixth day of life Cal suffered severe and preventable brain damage called kernicterus, caused by the failure to treat his neonatal jaundice.9 His parents were told that Cal’s injury no longer happened in the United States, that it was eradicated in the 1970s by advances in modern medicine. For a number of systemic reasons, at least 125 children suffered kernicterus across the country, beginning in the 1990s.10 These cases were well known in plaintiffs’ attorney and expert witness circles. Most of them were litigated, and the vast majority settled pursuant to confidentiality agreements that prevented the litigants from discussing their claims. However, the health care system remained largely unaware of the reemerging risk as anything other than anecdotal for years, until parents of the injured children began speaking publicly—usually against their lawyers’ advice—in late 2000.11 Medication overdose. In 1994 Boston Globe reporter Betsy Lehman died at the Dana Farber Cancer Institute after a fourfold overdose of chemotherapy. In the highly publicized aftermath, the institute developed a policy of full disclosure of errors, established patient advisory committees to work in partnership with providers to prevent error-related injuries, and became a national model for transparent operation.12 Yet it remains an exception in doing so.13 Few health care organizations have followed a similar path, although the Johns Hopkins Medical Center appears to be moving rapidly toward transparency following the 2002 accidental death of pediatric patient Josie King.14
As each of these cases illustrates, systemic communication about risk is shockingly haphazard among health care organizations, much less in the interfaces between our legal, regulatory, and health care systems. Tort reform can be a vehicle for breaking down some of the barriers. We propose that the reform provisions outlined below be more centrally integrated into current discussion of tort reform. Designed to spur dissemination of risk information throughout the health care system, these provisions also would foster a cultural shift away from focusing on error per se and toward complacency about error as the more pernicious social evil. Require disclosure. Providers should be required by law to explain adverse outcomes to patients or their designated representatives; those explanations and apologies should be shielded from being introduced in court as admission of malpractice. Despite long-standing ethical directives for physicians and Joint Commission on Accreditation of Healthcare Organizations (JCAHO) standards imposed on health care organizations in 2001, disclosure remains the exception, not the rule.15 In 2002 Pennsylvania was the first state to include such a provision as a patient safety title in new tort reform legislation. All of the states should follow suit.16 Outlaw confidentiality agreements. Confidentiality agreements that bury analyses of health system failures as a condition of litigation settlement should be outlawed immediately. So-called gag clauses are anathema to a systems approach to safety because they inhibit our ability to identify newly emerging risk and prevent future injuries produced by similar causes. Abolish the national data bank. The National Practitioner Data Bank (NPDB) should be replaced with a requirement that every medical liability claim filed trigger a report to and at least a cursory investigation by the agencies with responsibility for licensing the organization and the defendants named in the claim. Focused as it is on malpractice claims settled by individual clinicians, the NPDB is a failed program that perpetuates blame and holds systems-thinking back. Litigation data would be better used as an early warning system of health care risks that initially manifest as liability claims. Regulatory authorities should then be accountable for follow-through in addressing both systems issues and individual performance concerns. New Massachusetts law that groups professional licensing boards under the coordination of the state’s Department of Public Health, which already was engaged in systems-based investigations of health care accidents, is a promising model.17 Establish a national authoritative body. A national body with the authority and capacity to monitor medical injury risks should be created. Our position is not so much that consumers have a right to know about individual accidents than it is that someone must know. Had Ben Kolb been strangled by the cord on the blinds in his living room, or Cal Sheridan injured as the result of a poorly designed toy or a defective car seat, nationally coordinated consumer protection processes would have ensured that those risks were addressed. Safety in those arenas is driven by a commission, agency, or other authority that consumers know about, report to, and hold accountable for acting expeditiously. The accumulation of more than 125 preventable brain injuries like Cal Sheridan’s would be a completely unacceptable outcome in other domains, as it should be in health care. Were an entity functionally in charge of patient safety, public alertness to medical risk could be effectively fostered through provider and consumer awareness campaigns. It is also reasonable to believe that any resistance to the kind of cultural transformation accomplished by organizations like the Dana Farber institute would be more expeditiously overcome, without each health care setting having to experience its own Ben Kolb, Cal Sheridan, Betsy Lehman, or Josie King case to motivate change. As we urge national policymakers and lobbying interests to shift their perspectives, we also call upon patients and families affected by medical error to look beyond the role of victims entitled to justice. We too have responsibility for making health care safer, and that responsibility is rarely discharged by litigating or blaming. Let us not squander opportunities to effectively partner with those parts of the health care system that are willing to include us in their safety improvement work.
Martin Hatlie is president of the Partnership for Patient Safety and a cofounder (with Susan Sheridan) of Consumers Advancing Patient Safety; he is located in Chicago. Sheridan, of Eagle, Idaho, is president of Parents of Infants and Children with Kernicterus. Health Affairs invited their comments on the preceding paper by William Sage.
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Case Histories: Haphazard Risk...
Tort Reform Proposals
