Posts Tagged malpractice
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.
Making a diagnosis is difficult. And, doctors sometimes get it wrong. “Wrong” is often harmless, usually expensive, and sometimes deadly.
An article about incorrect diagnosis appeared this month in the British Medical Journal Quality and Safety which has been widely reported, including by the Wall Street Journal. Dr. Tehrani and his co-authors correlated health insurance claims (diagnosis) with malpractice suits. They found “diagnostic errors appear to be the most common, most costly and most dangerous of medical mistakes.”
One might think the errors happen because the underlying problem is very rare. On the contrary, the bulk of errors happen with common conditions.
Another article this month in JAMA Internal Medicine by Dr. Singh and co-workers reported on common types of diagnostic errors — many of which were common in primary care: (italics are blog examples)
- no chest x-ray for cough and high fever
- no chest x-ray for cough and high fever
- Decompensated congestive heart failure
- no BNpeptide checked
- Acute renal failure
- no check of basic metabolic panel for fatigue
- ignoring Mammogram findings or blood in sputum
- Urinary tract infections
- not checking urinalysis or treating soon enough
The flaw in the process that contributed to the wrong diagnosis included:
- Inadequate patient encounter (too short or not focused on problem)
- Not seeking referral when needed (like not getting a cardiology consult for chest pain)
- Patient related factors (not returning for follow-up)
- Not taking risk factors into account (like family history of colon cancer)
- Losing track of test results (urinalysis report filed but not viewed)
- Not getting the right test (not getting a chest x-ray for shortness of breath)
Problems at the time of patient encounter are a major contributor:
- Poor history taking (provider did not listen or ask questions)
- Inadequate examination (provider did not examine problem area — like a breast nodule)
- Inadequate testing (not considering a colonoscopy for blood in the stool)
When a person has a health problem the whole idea is to connect the dots …problem…diagnosis…treatment. If the diagnosis is not correct then good treatment is disconnected.
Providers often do not consider enough possible causes for abnormal findings. Those possibilities are called the “differential diagnosis”. There are books and several free sites on the Internet that provide such lists. One such site is DiagnosisPro. If you like other sites leave a comment please. Some electronic record applications include a differential diagnosis automatically — nice feature which should always be installed.
So, what is the solution? Most experts agree, the quality of the provider-patient interaction must improve. Providers need to follow known guidelines plus use differential diagnosis aids. Patients need to look out for themselves by using the Internet or books to understand symptoms and test results. The best solution is a stronger partnership between patients and providers. See earlier posts in this blog about shared decision-making and patient centered care.
Can all errors be prevented? NO. To err is human. The point is to minimize the errors, and there is obviously a lot of room for improvement.
Laura Landro of the Wall Street Journal reported on a growing trend in US hospitals. The trend is the “Observation Unit”. In hockey terms it is the penalty box where hospitals put patients they can’t send home but can’t admit, at least for a few hours.
The origin of this idea may have come from English hospitals. Those hospitals run at almost 100% occupancy. So, when a patient from the ER needs to be admitted there is a delay to wait for a room. Those patients get put in a big room next to the ER with several gurneys, a few nurses, and lots of curtains (the observation unit). The patients do get tests and treatments but they wait for a room. As it turns out, some of the patients get better and don’t actually get admitted — they go home — the rest eventually go to a hospital room. In England hospital care is free and the hospitals don’t have to worry about insurance or Medicare rules that separate outpatient and inpatient charges.
US hospitals have plenty of beds available but US hospitals do have to worry about insurance and Medicare rules. Care is not free and if a hospital makes a mistake (like admitting for indigestion) they don’t get paid. And, if a doctor makes a mistake and sends a patient home who should have been admitted (for a heart attack) they could be in legal trouble. Consequently, unlike the English hospital that needs to hold patients to wait for a bed the US hospitals need to hold patients because of red tape and legal worries! It’s hard to tell which is worse.
The Wall Street Journal article puts a positive spin on the “new” idea: “when operated efficiently observation units have been shown to reduce health-care costs and improve treatment”. Obviously there is a balance of forces between the Hospital that makes money and the insurance company that looses money with each admission. Regulators try to develop rules to speed evaluation and treatment so some patients can go home safely without a hospital admission and the huge associated costs. Any patient who can bypass the hospital will also avoid the risk of hospital errors and exposure to hospital acquired infections.
Patients have two main concerns:
1) Getting the right care the first time and not coming back sick. The unit may provide a little longer time to get test results and see if treatment is working which is good unless unnecessary tests are being done.
2) Minimizing out of pocket cost. A person without insurance would get a lower bill by avoiding the hospital but having both the cost of observation and hospitalization is a real possibility. The current trend for insurance is to shift a higher percent of outpatient charges to the patient compared to inpatient charges. So, depending on what a person’s insurance covers, there might be higher out of pocket expense for using observation.
The following is extracted from data presented by the Dartmouth Atlas.
Data about high ranking academic medical centers is plotted above. On the vertical axis is the patients rating of their experience at the hospital — the higher the percent the better. On the horizontal is the rate of a severe infection complication of tubes put in the veins (which should be taken out periodically) — the lower the rate the better. The hospitals in the lower right have the highest rate of undesirable “line” infections AND the lowest rating by patients. The hospitals in the upper left have the lowest rate of such infections AND the highest satisfaction.
The point is: the hospitals are all over the map (poor reliability). Worse yet, patients seemed to give some hospitals high marks for poor performance. To be fair, very few patients actually get line infections so the negative effect on overall satisfaction is small. It would be interesting to evaluate satisfaction of patients who had line infections (if they survive).
So, you say, hospitals need to work harder. That would be true but where are the guidelines for removing these problematic vascular catheters? The CDC and others describe how to care for the catheters but leave it to “judgement” when to take them out. The problem is “judgement” is not conducive to reliability.
Make a rule and follow the rule! Sure there are exceptions, like it’s the last vein the patient has — judgement is when you state why you are not following the rule. The specter of malpractice litigation is here. Although the rule of law is doctors are not held responsible for a well considered judgement (which later may prove to be wrong) it often does not work that way in court. So, a good defense would be that a national guideline was followed — if it existed.
What causes medical malpractice suits for health care providers and hospitals? The simple answer is ERROR. The most serious errors happen in hospitals but the most frequent errors happen in outpatient clinics.
James Reason (“Human error: models and management.” Bmj 320.7237 (2000): 768-770) is well known for his study of the causes of human error. He breaks error into 3 main categories:
- Skill based error (not paying attention to the right things)
- Rule based error (not following the right rule or following an incorrect rule)
- Knowledge based error (not knowing or incorrectly concluding)
Health care providers make human errors all the time. When the error actually causes injury the injured party will sometimes seek compensation through the legal system.
If humans “do the best they can” performing a task the error rate is about 10%. For example, if a nurse is to administer a medication to a given patient there will be an error 1 out of 10 times. Wrong patient, wrong medication, wrong dose, or wrong time just to name a few possibilities. The goal in error reduction is an error rate in the 1 out of a million range. Humans alone can not do that! Prevention of errors absolutely requires systems — sometimes as simple as a checklist or sometimes as complex as a robot that packages medications with a barcode and later scanning of the code before drug administration to a patient.
Medical malpractice suits (excluding the presence of legal malpractice) arise out of a failure to have adequate systems to control error. But, malpractice suits are only the tip of the error iceberg. All interventions in health care must have active quality monitoring and error prevention systems. Health care providers, to their patient’s detriment, yearn for simpler times — just the good old doctor-patient relationship in a small office with low overhead costs and no malpractice lawyers. Without a focus on quality and standards the good old days were really the bad old days of medical care.
The cost of medical malpractice to the US healthcare system is estimated at $55 billion or 2.4% of the overall system cost. However, the statistic misses the point. How much is spent on preventing errors? A wonderful trade-off would be to spend that much money to prevent errors in the first place rather than paying compensation for errors after they happen. Lawyers say they see the same errors over and over. One patient, one error, one trial then repeat with no intent to stop the cycle. This is a major flaw in the US justice system. Each settlement and each trial should result in some change to the system where the error happened. The usual outcome is “it’s your fault”, “try harder” and “do the best you can” — which are clearly failed quality strategies.
Prevention of errors is a costly endeavor (although well worth the cost). The following are examples of systems to reduce errors:
- Electronic medical records
- Electronic prescribing (computer checks for mistakes)
- Checklists for surgeons
- A strong quality management program both inpatient and outpatient
- Standardized orders in the hospital
- Standardized protocols for outpatient treatment
- Mandatory involvement of health care providers in quality improvement
- Development of a culture of safety for health care providers
- Formalized hand-off when changing shifts or going off call
- Barcoded medication administration
- Robotic packaging of medications
- Hourly nurse rounding to prevent falls
- Include the patient in the effort to improve safety
The above list is seriously incomplete. Health care is complex and changing. The systems to prevent error need to be adapted to the circumstances and to our changing understanding of treatment.