The U.S. tort system as a solution to compensation for medical errors is an abysmal failure. It’s unfair to doctors and it’s unfair to patients.
Here are a few statistics to make the point:
- Every year 400,000 patients are killed by medical errors and even more are injured. But, less than 2% receive compensation through suits. 98% never file suits.
- 80% of suits against doctors fail.
- 50% of compensation awards are paid to lawyers.
- The average time from filing suit to winning compensation is 3.5 years.
The practice of “defensive medicine” is well known. The fear of suits has caused many doctors to order more tests than are necessary. Even the AMA estimates the unnecessary tests cost between $84 and $151 billion each year. Worse yet is the effect on medical records: doctors make records “look good in court” by leaving out embarrassing details — making the job of quality improvement much more difficult.
There can be no other conclusion: the U.S. justice system is incapable of providing compensation to the vast numbers of injured patients and it stands in the way of quality improvement.
Other countries have much better systems. One that really stands out is Finland. They have separated compensation from accountability and quality improvement. Compensation is decided by a compensation board — compensation is often paid in as little as 2 weeks. Physicians can readily admit an error and say “I’m sorry” and go a step further and actually help patients get compensation.
The Fins have a strong quality improvement program which can change the medical system that allows errors to happen and force practice changes as needed — the primary goal is to reduce errors, not to punish doctors (except for criminal behavior).
The money spent in the U.S. for malpractice insurance both by doctors and hospitals, and the fees for lawyers would be much better spent in a compensation system like Finland. Current efforts at U.S. “tort reform” are aimed at reducing suits and thus reducing compensation. The suits remain unfair to doctors and inadequate to serve injured patients. “Tort reform” should be changed to “tort elimination” then replaced with a compensation board type system.
This is an excellent time to change the tort system because the U.S. is on the verge of universal health insurance. The question of who will pay the cost of health care error is “insurance” rather than bankruptcy court. By setting up a compensation system more attention can be directed to fair compensation and much stronger quality improvement.
It’s difficult to understand how one person coming to the U.S. with Ebola constitutes a crisis. The 75,000 patients per year that die of hospital acquired infections looks more like a crisis. The 443,000 deaths per year related to smoking is clearly a crisis. CNN and Fox news seem to be able to stir panic with constant “we’re all going to die” mentality. The most helpful suggestion from the media is to quarantine Texas.
Helene Cooper of the New York Times was featured on PBS 10/19/2014. She recently returned from a reporting trip to Liberia where she concluded Liberians show less panic than people in the U.S. She attributes this to Liberian’s having a better understanding of how the disease is transmitted. The observation rings true since most US news reporting does not attempt to educate, just analyze incomplete information. When this is all over congress will owe CDC director Dr. Thomas Frieden a massive apology for their rabid questioning … do they ever apologize?
The disease is transmitted by bodily fluids, usually by touching a person (see picture) with symptoms (vomiting, diarrhea and fever) or touching their secretions. In Liberia the population avoids touching each other. But, the real risk is for healthcare workers — because people with symptoms go to the hospital. The patient who came from Liberia with the disease died in a Dallas hospital but his fiancé and other people he lived with did not get sick! It is the nurses who are at risk and two of them (so far) have contracted the illness.
It’s good to hear the U.S. military is erecting mobile hospitals in West Africa — hopefully more countries will help.
The U.S. Navy Submarine Service is attributed with the development of a communication technique for critical situations. The technique is to standardize a message from one person to another in the order of Situation, Background, Assessment and Recommendation. For example in a submarine:
- Situation: Captain this is #1, we are having difficulty maintaining our speed
- Background: We are near a fishing fleet
- Assessment: I think we may be entangled in a fishing net
- Recommendation: I recommend we surface and cut away the netting
The captain says “make it so” or perhaps he says “no, all stop, send out divers”
About 15 years ago the method came to the attention of patient safety experts. It had several great features: 1) The person on the front line (like an ER doctor or nurse) could make a report quickly 2) the method was easy to learn and was consistent even when emotions were running high 3) It leveled the hierarchy so the person on the front line made a recommendation with situational awareness that the person receiving the message might not have. In a medical situation SBAR might sound like:
- Situation: Doctor this is the ICU nurse, your patient John Doe has become comatose and is breathing very slowly.
- Background: He has lung disease and was just admitted 2 hours ago
- Assessment: I think he is in respiratory failure
- Recommendation: I recommend we intubate as soon as possible.
The critical care doctor says: “Get me a scope and a tube, I will be right there”
Those health care professionals who embraced the method found it very helpful and it is still being used at many institutions. But, the idea has not had universal success for reasons that were not clear at the outset:
- Fear. Recommendations might be rejected.
- License: Some felt their license did not allow an assessment which was the equivalent of a diagnosis.
- Semantics: The word assessment means physical exam to nurses but it means diagnosis to physicians.
- Litigation risk: Some felt if a recommendation was followed and later proved to be an error they would be blamed and possibly sued.
Improved communication in critical health care situations is very important to the patient in distress, in fact, poor communication is responsible for many in-hospital errors. The SBAR technique is more difficult that one might think. And, implementing it requires more than just saying “wow, this is great, do it”. Techniques for implementation include some of the following:
- Audio or video recordings of the technique in use
- Practice sessions including both doctors and nurses.
- Role playing — the doctor giving the nurse a report and visa versa.
- Explanation of why the technique works
- Examples of errors in communication and how patients might suffer
- Emphasis on teamwork and not blame. A single negative comment by a physician or supervisor can take a great deal of effort to correct.
- Understand a critical assessment is not a final diagnosis but just a step in the right direction. The assessment is made at the training level of the person stating it. Some might say “breathing difficulty” some might say “respiratory failure”.
- Continued education and reinforcement. All new members of a medical team need to be instructed. This is an ongoing process.
Good communication improves patient safety especially when quick action is needed. SBAR is a framework for communication. Other methods may do the same thing but the history and success so far suggest it has wide applicability. Users of the technique express satisfaction (1). Communication always involves two parties — both must be accepting and well trained to use the technique. The World Health Organization has included SBAR in some of its publications (2) so wider use of the technique is expected.
Personal experience with SBAR
(1) Beckett, C. D. and Kipnis, G. (2009), Collaborative Communication: Integrating SBAR to Improve Quality/Patient Safety Outcomes. Journal for Healthcare Quality, 31: 19–28. doi: 10.1111/j.1945-1474.2009.00043.x
(2) Haig, K. M., Sutton, S., & Whittington, J. (2006). SBAR: A shared mental model for improving communication between clinicians. Journal on Quality and Patient Safety, 32 (3), 167–175.
(3) Anonymous (2007) Communication During Patient Hand-Overs. WHO Collaborating Centre for Patient Safety Solutions,Patient Safety Solutions,volume 1, solution 3, May 2007
Just calling a patient on the phone does not prevent patients from being re-admitted!
Hospitals are very interested in preventing a patient from returning to the hospital (called a re-admission) within 30 days from discharge due to the financial penalties from Medicare.
For example, if a patient is hospitalized with a serious problem called congestive heart failure (fluid retention that causes shortness of breath) the hospital will be penalized financially if the patient gets the condition all over again and has to return.
The government idea is to force hospitals to be more accountable – it’s like a 30 day guarantee from an auto repair shop! So hospitals are looking for ways to improve their performance (and avoid paying money).
There is no question frequent visits to a physician can reduce re-hospitalizations. However, a recent hospital study found that hospital nurses who talked to patients before discharge and who called them after discharge did not help the readmission problem — if fact there were more re-admissions!
a) How can this be?
b) Do well meaning nurses actually make the problem worse?
c) Does this mean hospitals should not be penalized?
The answers are: a) bad science b) yes and c) no, perhaps they should be penalized more!
The “bad science” part is because there was no intervention to adjust medications or treatments that might prevent readmission. A hospital nurse only has one option for a telephone intervention: “you better get checked at the ER”. The conclusion from the study should have been stated “chatting with a patient does not prevent re-admission” — brilliant deduction.
The outpatient care provider’s office is where action can be taken to stop re-admissions. That’s where medications can be prescribed. If the hospital wanted to prevent re-admissions they should have made an appointment and given the patient a coupon for a taxi ride to and from the outpatient office. This is not rocket science.
- use good judgement — nice
- revere your teachers — nice if you are a teacher
- order a good diet — still a matter of question
- don’t hurt or damage people — really or just statistically?
- don’t poison people — makes sense to me
- comport oneself in a Godly manner — doctors have no problem here
- don’t do surgery if you don’t know how — duh
- doctor visits should be for the advantage of the patient — patient centered care is nothing new
- keep medical information private — HIPPA before its time
Doctors often take some revised or modernized version of the Hippocratic Oath. Sadly, the idea that doctors have some responsibility for the care provided by other doctors is missing. The idea is front-and-center in most work on quality improvement — where the idea is indeed to improve everybody’s care. Doctors should have 2 responsibilities: 1) care for the patient and 2) improve the quality of care for all.
Most doctors don’t accept item #2, instead the list is: 1) care for the patient and 2) care for personal finances. In essence, doctors shun quality improvement because “I’m not paid to do that”.
How many doctors participate in quality improvement activities? Meaning, find a problem, make a plan, do something, study the result, then act to improve the plan and repeat the cycle. This is not rocket science. A physician is not expected to do molecular biology research in the office but there is an expectation they will improve waiting time and reduce prescribing errors — things easily within their grasp. How many physicians have a quality improvement meeting each morning or at least once a week — I dare say less than 1%.
Systems of care are very important. But, the lack of physician involvement in quality improvement is a serious deficiency in many health care systems. In some respects this is a structural issue for health care — it’s not a process, and it’s not an outcome. It’s like a foundation for a house — no foundation means the house will not last.
Healthcare in the past has shunned “conveyor-belt” surgery, “cookie cutter” treatments and “cookbook medicine”. But, the disdain for efficiency, as honed by manufacturing, has put the spotlight on medicine and surgery as very inefficient with a huge hidden or wasted capacity. Patients and healthcare providers are asking for the training of more healthcare professionals — they can’t manage the wave of baby-boomers needing care or the influx of new patients using the methods of the past. So, let’s not use the methods of the past, it’s time to learn from industry, from Toyota, from Ford.
The key principle is “lean” – definition of Lean, as developed by the National Institute of Standards and Technology Manufacturing Extension Partnership’s Lean Network:
“A systematic approach to identifying and eliminating waste through continuous improvement, flowing the product at the pull of the customer in pursuit of perfection.”
Here is a translation for healthcare:
“A systematic approach to identifying and eliminating waste through continuous improvement, providing health care as needed by the patient in pursuit of perfection.”
Here are the 8 “wastes” to be eliminated, as might be applied to a medical office:
- Overproduction — From a medical office standpoint this is excess staff at certain times — indicated by an appointment schedule that is not full. Staffing must be adjusted to patient load.
- Waiting — Patients waiting for appointments, providers waiting for test results. Ideally the when patient arrives the provider is ready to begin. Needs to be monitored with visual controls all the time. Solving patient problems on the phone prevents clogging the system with unnecessary visits and reduces excess inventory.
- Transportation — equipment (like gowns and syringes) need to be at the point of use not transported around the office.
- Non-Value-Added-Processing (reworking) — having to review patient data because the problem was not resolved initially. Sometimes multiple workers collecting the same information (very common when patients are admitted to the hospital) And, excessive medical documentation, a common problem with speech to text systems.
- Excess Inventory — No room in the appointment schedule because it is all filled up, patients want to be seen but no staff are available. Represents a failure to hire adequate providers and staff. Larger organizations are better able to make staff flexible, like sending them to a branch office if several staff are missing due to vacations or illness.
- Defects (do it right the first time) — Following evidence based guidelines and using checklists reduces error in treatment and diagnosis. Errors may result in legal action. But, less severe errors end up requiring correction or at least explanation.
- Excess Motion (poor workflow and documentation) A huge problem. If offices don’t have labs, x-ray, a pharmacy, physical therapy, and commonly needed specialists it causes wasted patient and staff time.
- Underutilized People — offices don’t often let nurses or scheduling departments make common sense changes. Small offices fail to hire computer consultants or patient educators.
Much of the waste currently is due to lack of scale for many providers — they just don’t have big enough facilities. Also, on a larger scale many towns have excess capacity in certain specialties. Like supporting one neurosurgeon when all the neurosurgery should be done at a regional center to keep the providers busy and competent. Likewise, not every hospital should be a high level trauma center. Not every town or hospital needs a cancer treatment center.
Simply treating more patients over the phone is probably the greatest method to find hidden capacity. If a visit is just to consider a blood sugar record that can be done without an office visit. The second best efficiency boost is to incorporate NPs and PAs as team members. Third, a high functioning computer record helps to prevent reworking and reduces excess motion. Above all, constant monitoring of efficiency and quality with continuous improvement is essential.
Corruption 101: medical device makers. It’s unbelievable that in the same week we get reports of device makers paying physicians billions of dollars to use their products while the FDA approves devices with skimpy rules and secret files.
To pay cardiologists to “research” how a pacemaker works after the device is mass produced is like giving a coupon to a housewife to “research” a new laundry detergent. Except, the laundry detergent costs $5 whereas the pacemaker costs $30,000. This is a kickback and it is unethical (because the doctor gets the money and the patient gets no benefit).
The idea the FDA can and does approve new models of pacemakers without proof they are safe is beyond comprehension. Many of the recent recalls involve defective pacemaker electrical leads — new models are OKed without materials testing or prolonged flexion testing that most engineers would expect. Even Consumer Reports lab could do a better job. A car recall is one thing, but cutting a patient open and jerking out a defective pacemaker wire from the heart is something hugely different.
Self policing of device makers has failed — we need regulations with teeth. In addition to safety regulation a limitation on device profit is badly needed.