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.