On Liability

As an attorney and a paramedic, I’ve definitely got opinions on medical malpractice and liability.  As some of my devoted minions (well, all two of you outside of family), I’ve experienced my own issues with healthcare liability, not all of which I’ve blogged about.

First, my legal profession deserves a huge chunk of blame for this.  We’ve convinced the public, either deliberately or by omission, that a bad outcome automatically equates to malpractice.  This just isn’t true.  No one in the medical world is able to work miracles or reverse irreversible processes.  We will all die of something eventually and sometimes, even in the best settings, there is nothing that can be done for that.

However, the medical world bears some fault as well.  The medical world regularly fails to understand how the legal system works and as such, probably makes things worse.   The things I see most often are administrators and risk managers who try to mitigate risk down to zero.  As such, good medicines, good interventions, and good clinical judgment get banished in the name of “patient protection.”  The acceptable/tolerable risk to the healthcare liability watchdogs, accrediting bodies, and risk managers becomes ZERO.  As but a simple example of that, look how Phenergan (promethazine) has greatly been displaced as an anti-emetic in the emergency and prehospital settings by Zofran (ondasterone) because of the concerns about vascular damage.   Yes, the danger exists, but there are steps to mitigate the risk.  However, for the people whose livelihood is made by “protecting” clinicians from the lawsuit bogeyman, zero risk is tolerable.  So, when you have a patient who’s vomiting up their Zofran orally-dissolving tablets, thank risk management.  <GRIN>

Additionally, the risk management types like to hide transparency or accountability behind the fear of litigation.  As such, we end up with “peer reviews” where medical misadventures are hid behind laws that shield the providers from accountability.  These inspire a belief amongst laypersons that the professional community shields its own.  Even if the provider receives discipline or remediation after a peer review, it’s considered confidential by law (at least in Texas). In my opinion, this limits transparency and accountability and enhances the “coverup” feeling that patients and/or their families sometimes feel.

Many people who’ve experienced a bad outcome come to lawyers in the hopes that the bad outcome can be explained.  Granted, some come for the litigation jackpot, but there’s also a great number of people who seek legal counsel because of an honest desire to find out what happened.

My solutions are simple.  It’s getting them into place that would be the hard part.

Step 1: Accountability and transparency.  First, any explanations or apologies provided by healthcare providers should be excluded, as a matter of law, from serving as evidence of liability.  Second, peer review confidentiality should be waived to the extent in the event that a provider does receive remediation or a loss of privileges that the complaining party is informed.  However, this waiver still should not be admissible for purposes of establishing liability.

Step 2: Judges should start dismissing frivolous claims.  Period.  This alone would go a great deal toward fixing the frivolous lawsuit issue.  Judges already have the power, but many are afraid to use it because campaign contributions often come from the same lawyers who file the suits.  For the plaintiffs’ lawyers out there, this has got to be preferable to tort reform statutes that limit access to the courts.

Step 3: Here’s my solution to the litigation lottery jackpot.  I’d establish healthcare liability courts in addition to the current court system.  If you want to file your suit in the “regular” courts and try to persuade twelve people who couldn’t get out of jury duty of your righteous anger, then by all means file in “regular” court.  Just understand that damages will be capped at a certain amount and that you won’t get a windfall for “pain and suffering” or other unquantifiable claims.  Healthcare courts would exist without any damage caps.  Here are the two catches.  First, no juries.  Your case will be heard and decided by a judge with expertise in medical liability.  Second, the court can also appoint its own expert to examine the facts of the case and issue a report to the judge. To me, this would lessen the influence of the “hired gun” expert witnesses used by both plaintiffs and defendants.

The pendulum of medical liability constantly swings back and forth between two extremes.  I believe that both extremes fail to satisfy justice.  The legal community needs to understand that bad outcomes aren’t automatically to be associated with wrongdoing. And the medical community owes it to the public it serves to accept responsibility and accountability when something does go wrong.  It goes back to preschool — there’s a great deal of healing power in a simple, sincere apology.  “I’m sorry” goes a long way.


  1. Mike Smertka says:

    A solution I think is even easier is if doctors actually spend time talking to their patients. These conversations need to include more than just “which option would you like A, B, or C”? One of the things I have found tremendously helpful is asking patients what their expectations and goals are. I have had people tell me everything from “keep doing what I was doing before” to ” I want to live long enough for my granddaughter to be able to remember me.” This simple question allows for preemption of unrealistic possibilities and outcomes, which is definitely needed when hospitals advertise perfection like used car salesmen in order for you to buy from them. Another thing it permits is tailoring treatments more to individuals. The treatments and techniques for attempting to return people to full function are sometimes different than guidelines for elusive levels of “cure.” This conversation also facilitates talking about things that concern the patient who is not a medical provider. I have seen world renown surgeons, whose medical knowledge and surgical ability are legendary, have a realistic conversation with elderly people regarding returning to work, living on their own, how much it all costs, and the like with patients. Sometimes it meant telling them certain things would not be likely or even possible. Honest answers to important questions goes a long way in my opinion. Perhaps what I am getting at is that there are things doctors, and by extension all healthcare providers, cannot change. So rather than waving around rubber chickens and sacrificing good medicine in exchange for defensive medicine to supposedly make one litigation proof, the solution is to make people not want to sue you to begin with? After all, I will be the first to admit, some doctors deserve to be sued and make giant payouts. So do some hospitals. In the words of a very wise and capable doctor I know: “Make every patient your friend. You would never sue your friend. You would gladly sue your enemy.” Of course for doctors to do this, they have to be able to connect with people and understand more than scientific study. They also have to spend more than 8 minutes on average with patients and endlessly refer them to different providers.

  2. Steve Pike says:

    One other thought: plaintiffs’ attorneys perhaps should be forbidden to charge the plaintiff a percentage of the recovery. They should be required to charge a flat hourly rate plus expenses. This might discourage ambulance chasers from seeking absurd damages solely to increase their own turn at the litigation lottery.