Archive for category Medical Legal Problems
According to a recent report in the BMJ medical errors are the third leading cause of death in the United States. The chart below shows where the estimated number of deaths from medical error fit into known mortality data. The article makes the remarkable observation “medical error” is not allowed as the cause of death to be recorded on death certificates. Indeed, when “medical error” is entered into the ICD 10 look up site for CMS here is the result: There are no ICD-10 Codes that match that fragment.
To be fair, the rule for death certificates is the cause of death must be the final cause. For instance, even though smoking causes heart disease which leads to a myocardial infarction (heart attack), the allowed cause of death is myocardial infarction rather than smoking, which is truly the root cause. That’s just how the system has worked for decades. So if a medical error causes a myocardial infarction the doctor must list myocardial infarction as the cause of death — in most states the qualifier “due to …” is allowed and smoking could be entered by the doctor. Interestingly, if “medical error” is listed the death would become an “accidental death” requiring review by the medical examiner (not something most physicians or families want).
251,000 deaths in the United States are caused by medical errors. This fact has been hidden, like many other underlying causes of death. The effect is that research into medical errors is lacking, the funding for research is lacking and the problem is ignored. Why should heart disease research be funded when some “cardiac” deaths are actually due to a nurse giving the wrong medication to the patient. The research really needed is to find how to prevent the medication error.
Although the graph above is bad enough, consider that the size of the bars for heart disease, cancer and COPD should all be smaller — because the real cause, in many cases, is medical error.
The number of medical errors is staggering. The errors that cause death are just the tip of the iceberg. Lots and lots of medical errors only have minor consequences. Every physician makes several errors each day. Every review of a medical chart reveals numerous errors. Care providers are astounded by this news. However, simple things like not seeing a lab report with a low blood count until the following day is an error even if nothing bad happened as a result. Of course, it would be malpractice if something bad did happen as a result.
The prevailing notion in quality improvement circles is, “don’t waste your time unless there was a bad outcome.” This notion comes from a lack of staff, and intense criticism when a provider is involved. “What do you mean there was an error, my care was excellent, nothing bad happened, you should be fired.”
Although there is a real tendency to want to blame an individual provider, both small and large errors are the result of poor clinical processes. Even errors due to provider fatigue and lack of sleep are truly process problems — a provider who worked during the night should not be working the following day. A provider sick with a cold should not be working, but so often they are.
What needs to be done:
- Just like alcoholism, the first step is to admit there is a problem.
- See medical care as a process. Strive to make sure the same problem gets the same treatment every time in every location. OR change the process.
- Stop seeing medical care as art. What work of art ever killed a person?
- Separate the compensation for medical errors from improving medical processes. Injured patients need quick compensation and medical care needs quick changes to improve. Lawsuits seem to have little impact on process of care — if lawsuits prevent errors why are we in this mess?
- Establish a non-profit foundation to advocate for reducing medical errors — something the public might be very willing to support. Sorry, Heart Association, Lung Association, Cancer Association — some money needs to go toward reducing errors. After all, if a wonderful heart medication is given to the wrong patient what good is that?
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 sounds like a paradox: science studying itself. But, that is exactly what is happening in medicine. Basic research has led to applications of the research and the applications are studied for effects, benefits and cost. For example: invent robotic surgery and apply it to patients, then set it up as a program in an operating room and try to improve the technique and patient selection, and finally evaluate the program to see if it meets stated goals of quality and cost and decide if it should continue and under what conditions.
This huge simplification helps with terms doctors and hospitals often talk about:
- Discover and apply — called research.
- Try to improve — called quality improvement (QI).
- Continue the effort? — called program evaluation (PE).
Patients can be subjects of research. But, participation in research requires explicit permission since the outcome is not known and it could be bad.
If we knew what it was we were doing, it would not be called research, would it? (Albert Einstein)
Patients are hopefully impacted by quality improvement since the purpose is to make things better and thus no patient permission is required. As part of QI a hospital may try to make sure antibiotics are given before surgery because there is research evidence the practice reduces infection. Quality improvement focuses on a cycle of planning, doing, study and revision. QI has become a huge area of study with numerous books and journals on the subject. Virtually every hospital has a quality manager who is charged with improving the care at a hospital.
Patients are only indirectly affected by program evaluation. Clinics and hospitals constantly evaluate programs for positive or negative effects. Whether programs continue depend on such studies. People may read about evaluation of medical programs like care at VA hospitals and may be impacted by decisions of policy makers based on such evaluations. PE is likewise an important and growing discipline.
The concepts of research, quality improvement and program evaluation do tend to overlap. One could imagine using QI techniques to improve the quality of research. And, one could imagine research to find the fastest way to do program evaluation. However, research is mainly for the purpose the researcher decides. Whereas QI and PE are mainly for patient care, business or institutional purposes.
Quality healthcare depends on QI and PE. Patients often don’t see these efforts in action. But, ineffective QI and PE are hazardous to your health. Although doctors and hospitals don’t like the idea: law suits are a warning flag of inadequate QI and PE.