01 October 2009

More on Malpractice

Ezra kindly responds to my post from Friday with a more reasoned stance than "just don't commit malpractice." His response, however, boils down to two main theses:
  1. Frivolous Lawsuits are not as common as generally thought, and
  2. Standardization can reduce the opportunity for error and thus decrease the frequency of medical malpractice suits.
Well, yes, but I'm not sure that addresses the typical physician's complaints regarding the current med-mal system.

For example, the "frivolous" moniker is a pretty ambiguous term, especially to doctors' loose understanding of legal terminology. To a physician, a "frivolous" case is one in which there was no error -- where the standard of care was met, but perhaps the outcome was bad. Or to put it another way, doctors tend to feel that when they are vindicated in court, it's prima facie evidence that the case was frivolous. This conviction is bolstered by the little-recognized fact that physicians win the vast majority of cases that actually go to trial, and the vast majority of claims filed do not result in a financial settlement. So physicians who go through the wringer of even a successful malpractice defense cannot be blamed for coming away with the feeling that the whole exercise was frivolous. On the other hand, the more accurate definition of a "frivolous" case is that it was a case with no merit whatsoever, a much more stringent qualification. This would require, for example, no patient injury, or a suit against a physician who truly did not provide relevant care to the injured patient. These cases are in all likelihood quite uncommon and it does not help the dialogue between frustrated physicians and policy wonks that we each seem to be using the term frivolous differently.

What bothers physicians more, however, about the current system, is the disconnect between actual negligence and compensation. Ezra cites himself, circa 2006, which links an NEJM study I'd reviewed at the time but had since forgotten [PDF link]. It's interesting that the conclusions of the authors would be diametrically opposed to those of a typical physician (especially a physician defendant). The authors conclude that "Claims that lack evidence of error are not uncommon, but most are denied compensation." Which, as far as that goes, is good. Mostly.

But the problem is that the sensitivity and specificity -- the accuracy, in non-med-stat-speak -- of the system is quite poor. Of cases where the reviewers felt there was evidence of an error, only 73% were compensated. Call those the "True Positives." And of cases where there was no evidence of physician error, only 72% were resolved without compensation -- call those the "True Negatives." Is there a medical test in use which has a sensitivity and specificity of only 72%? No! That's better than flipping a coin, but not by a lot. In more than a quarter of cases this study tackled, the system got the outcome wrong. Physicians are used to substantially more accuracy than than in the tools we use in our daily practice, and it's maddening to be judged by a system which is so terribly imprecise. (Some of us cynics might suspect that the real-world performance of the system is even worse than 72%.)

This is why physicians are so adamant about the need for medical malpractice reform. There is a disconnect between actual negligence and the likelihood that you will have to pay an award. The docs' reflex is just to cap awards so the financial risk is limited. But that does not address the problem of verdicts simply being wrong -- both ways. That would require a more fundamental solution like special health courts. That sort of reform would have the great benefit of protecting physicians from unjust verdicts, but would also better ensure that injured patients were justly compensated.

Further, Ezra hits the nail on the head with his caveat "this debate is poorly served by the term 'malpractice.'" Malpractice is a term used very loosely by different writers, as shorthand for "doctors who injure patients." Unfortunately, there's a lot of conflation of the three separate ways physicians can hurt patients, and each requires a different level of concern and a different mode of redress:
  • Systemic Errors
  • Medical Errors
  • Negligence
Systemic Errors are the ones that get me most interested, and are possibly the most lethal things health care workers do. Consider the ICU nurse who does not practice good hand hygiene and blithely spreads MRSA among the several patients she may care for in a given day. Or the lazy ER doctor who doesn't bother to drape the patient and scrub his hands before putting in a central line. Ezra made note of the huge advances anesthesiology has made in addressing these errors and, resultantly, reducing patient harm and malpractice liability over the years. It's a pity this approach hasn't spread to the rest of the house of medicine more rapidly, but the truth is that the aviation metaphor applies most aptly to anesthesia: they do the same thing every time, day in and day out, and standardization is relatively easy. It's only in the last few years that smart people like Peter Pronovost have realized that there are things which can be standardized in the ICU and the OR in the same way, with huge benefits. We're even looking at these measures for the ER, but that is more challenging give what a chaotic environment it can be and how infrequently we see certain pathologies. Having said all that, systemic errors are not malpractice and in most cases are not appropriate for compensation by the medical liability system. More on that later.

Medical Errors are harder to define, but there are certainly cases where the doc did something that seemed right at the time but it turned out terribly wrong. A real example: I once saw a woman with a headache. She had a history of chronic migraines, came to the ER frequently for them, and this seemed more or less typical for her. I gave her some pain meds and sent her home with no work-up. Turned out it was a ruptured aneurysm, and I saw her again the next day before sending her to the neurosurgeon. There were a couple of little clues there, but honestly, there was no way on earth that I could have figured it out on the first presentation. Fortunately, the ending was happy for both of us. This, however, seems to fit the IOM Definition of an error: "Failure to complete a planned action as intended, or the use of an incorrect plan of action to achieve a given aim." My plan of action: analgesia & observation, was incorrect. It was incorrect for reasons that may not have been preventable, in that they were due largely to "patient factors," but it fits the definition nonetheless. The prevention of these errors is as huge as the entire scope of medical knowledge; it defies elimination as long as doctors are fallible human beings. With attention and commitment, I think that the house of medicine is making progress, and I can't decide if they are huge strides or baby steps. But we are working on it. Again, however, these errors are also in many or most cases not malpractice and should not be compensated in the courts.

Negligence is something different and should be considered as beyond a simple error. Different states define the term differently, but in general it might be defined as "the failure to do something which a reasonably prudent person would do under like circumstances." Of course, what is prudent and what is negligent varies greatly in the eye of the beholder and based on the details of a given case. But the key is this: the absence of negligence does not require perfection, just prudence. Or, as the old line in medical risk management goes: "You're allowed to be wrong, but you're not allowed to be negligent." A bad outcome or even the presence of a medical error as defined above are not in themselves demonstrative of negligence. Systematic errors almost by definition cannot be negligent in that it presupposes that everybody in a given system was imprudent and unreasonable (at least in the case of evolving science and quality standards; once industry standards are well in place, deviation from those could be negligent). Negligence is supposed to be a higher degree of screw-up, the sort of thing that when another doc hears about the case they say, "Oh no, he didn't really do that, did he?" It's not just an error, it's a flagrant error. At least that's how it's supposed to be. And it's negligence that is supposed to be addressed in the medical liability system.

My point in breaking out these different types of injuries is this: the first two classes of patient injury, those due to systemic errors and those due to medical errors, are not in and of themselves "malpractice" and should not be compensated in the tort system. Negligence is required before it is malpractice. Unfortunately the extreme subjectivity of that term and the variability from state to state and county to county, in addition to the randomness of juries makes it hard to draw a line in the sand and separate the two. The specific details of any given case, of course, are highly determinative of whether negligence was present. But it would be very helpful to the dialogue and to the possibilities for health care reform as well as medical malpractice reform if those of us who write about health care related issues were more precise in our terminology and if we could all avoid lumping all these problems together.


  1. I don't really disagree with any of your thoughtful comments, and I sympathize with the average doctor who has to deal with malpractice issues, among many other hassles. But ...

    Most of my litigation experience is working as an expert on class action cases, where the device or drug manufacturer is the allegedly negligent party, and not on malpractice cases per se.

    But my experience does make me think that some of the thinking on malpractice reform is, well, backwards. People have often pointed out in the cases that I work on that "other countries don't have all these lawyers," or words to that effect. Which is true, but these countries also have universal health care, and other safety nets.

    It may be fuzzy in many malpractice cases whether the doctor is at fault, but one thing is usually much clearer -- it is not the patient's fault. What is a parent to do when a child is permanently disabled, and will require maybe $75,000 a year for custodial care -- likely for many years after the parent has died? Whether the injury is from a medical treatment, an auto accident, or whatever -- however repugnant the idea of litigating may be, the parent in our system has little choice except to sue somebody.

    Obviously, not all malpractice lawsuits are filed with legitimate claims of negligence, or injuries of this magnitude. But some are. And whether the injury was due to systemic error, medical error, or negligence, many patients -- or their families -- are in fact left facing devastating medical expenses, in addition to pain, suffering, and disability.

    In most, if not all, developed countries, their medical care, and often loss of income, will be taken care of. Here, they often have to sue.

    Yes, the current system is capricious, and sometimes claims get unfairly compensated, or unfairly denied. And yes, what one might call the Vince Lombardi solution of prohibiting or capping most claims has the advantage of treating everyone equally -- like dirt. But the principle of "do no harm" suggests that we might think about first, making sure every patient injured in the medical system can get care, and then second, worrying about malpractice reform.

    A requisite first step to enacting fair and effective malpractice reform would seem to be enacting meaningful health care reform.

  2. This is a fascinating insight. In other words, "someone" has to pay for the follow-up care for patients with bad outcomes. Since the US does not have universal health care, that someone defaults to the healthcare provider. The logical consequence would be that if there were true universal health care reform, the economic damage portion of med-mal would be greatly reduced.

    Interesting, but, I think, an oversimplification, and probably optimistic. The "jury sympathy" factor seems to influence awards more than true actual economic damages, and even universal health care won't alleviate lost income, earning potential, custodial care, etc. (custodial care is not typically covered in most health insurance policies.)

    Anyway, the gist of your argument (as I read it) is that the US would be better off with a more comprehensive welfare state, and to that I can only wholeheartedly agree.

  3. "Interesting, but, I think, an oversimplification, and probably optimistic. The "jury sympathy" factor seems to influence awards more than true actual economic damages, and even universal health care won't alleviate lost income, earning potential, custodial care, etc. (custodial care is not typically covered in most health insurance policies.)"

    What leads you to say this about the "jury sympathy" factor, Shadowfax? Do you have evidence, or is it a gut feeling?

    I do think that universal health care would lead logically to lower awards, as Teemo said. You might even see judges doing more cutting down of overgenerous jury awards. (I don't know whether custodial care will be available under whatever health care reform we get - if it is, that would further reduce awards.)

    By the way, thank you for identifying that "frivolous" is a term of art in the legal field. This is something that I have seen lawyers endlessly frustrated by in discussions with physicians. It's like patients who toss around "I'm allergic to x" because it gives them heartburn or something. Their understanding of the term "allergic" makes sense for their vernacular, but is totally contrary to the technical sense that doctors use.

  4. For me, the difference between error and malpractice is the difference between "making a mistake" and "fucking it up." It's subtle, but you know it when you see it. (Caveat: I am not a doctor. Nor a nurse, nor anyone with any medical training or education at all.)

    So, for example, the doctor who makes a misdiagnosis in the face of an unusual presentation or a confusing history? Well, that's just a mistake. People make them all the time. Even if the doctor misses something completely obvious, resulting in an ineffective or even harmful course of treatment, that's not malpractice. So, for example, if a healthy, late 30's male comes into the doctor's office with a fever of 104.7, a terrible headache, and a stiff neck, and the doctor diagnoses her Nth case of H1N1 without doing a flu swab (and thus sends home the patient with meningitis), that's a mistake. But it's not malpractice.

    Malpractice, to me, requires an almost deliberate abrogation of the standards of care, or an extensive pattern of errors. The mid-twenties female who presented to her PCP with increasingly severe headaches which moved from episodic to chronic over a period of four months, pain occasionally spiking to 9/10 and accompanied by ataxia, nausea, dilated pupils, and numbness and double vision on her left side, who was never given a head CT? That's getting closer to malpractice, but it's still not there. (That's a real case; it was a family member, she had a fist-sized grade III astrocytoma in her cerebellum, she's fine thanks to a miracle surgeon and some overwhelming luck.)

    No, malpractice is when a patient comes into his doctor's office with pain and swelling subsequent to having a compound fracture of the ulna repaired in the OR, and is sent home over and over again over a period of weeks, despite increasing pain, foul drainage, and an increasingly terrible smell. Only when the guy's wife had trouble sleeping because of the smell did she drive him to the ER, where obviously the wound was hideously infected and gangrene had set in and the arm had to come off. (Also a real case, friend of the family. The ER doctor took one look at his arm and said "I presume you're going to want copies of my notes for, ah, your own purposes.")

    So many people seem to look at a case where hindsight would have yielded a different course of action than foresight did and howl "malpractice!" But that's unreasonable, unfair, and impossible. Doctors don't have to be perfect in order to avoid committing malpractice, or even be average. They have to just not be spectacularly dumb, negligent, and indifferent to their patient care. That's one reason I totally support medical courts.

  5. In other words, "someone" has to pay for the follow-up care for patients with bad outcomes. Since the US does not have universal health care, that someone defaults to the healthcare provider.

    The fundamental economics principle recognized by the Coase Theorem is that "someone" always pays for every bad outcome. The sole use of the tort system is determining who pays: the injured party, the alleged tortfeasor, or someone else. In the societal picture, tort verdicts are a zero-sum game: wealth is neither created nor destroyed, just transferred (or not transferred).

    As I've blogged before, I don't see what the hoopla is about health courts. There's nothing suggesting that judges would be more "reliable" in their findings than juries.

  6. I just want to say 2 things:

    1. Kudos to Kathryn for spectacular use of the word "abrogate" - one of my favorites.

    2. I'm going to have to read Max's blog to understand his argument, because my memory is that health courts have demonstrable superiority in determination of fault in medical malpractice suits.

  7. The "systemic errors" cited in your example ARE malpractice and patients should be compensated. The nurse in your example undoubtedly knows she should wash her hands, but doesn't. That's malpractice. The same is true for the ER doctor who doesn't scrub. These actions meet your definition of negligence: "the failure to do something which a reasonably prudent person would do under like circumstances." The fact that many nurses or physicians might act the same way may make it systemic, but it is still negligence and malpractice. "Everybody does it" shouldn't excuse them from doing what is right and from liability if they don't.

    In fact, the aviation metaphor doesn't really apply, even to anesthesia. When the plane crashes because of the pilot's action or inaction, the pilot goes down with it, generally suffering the same or worse fate as the passengers farther back in the plane. When the patient crashes because of the doctor's action or inaction, the doctor goes on to the next patient. Pilots have a much greater and more personal incentive not to commit aviation malpractice than physicians have not to commit medical malpractice.

  8. I vote for health courts. There is no way a physician could get a jury of peers (unless peer=human being) here in the Land of Senate Seats for Sale.

  9. Tell Ira the biggest difference between the US and Canadian Medical Systems is their legal systems.

    America: lawyers can take cases on contingency and even if the defense wins, it still eats its own costs

    Canada: no contingency allowed and if a plaintiff loses, they pay all defense legal fees, etc...

  10. the author of this blog calls himself "progressive"-whatever

    in the er we are targets and defensive medicine is rampant. we see tons of patients whose neuroses manifest as chest pain, ha, tingling, and we have to work them up (i.e. admission, MRIs, CT's) because the system does not allow us to ever not immediately diagnose someone. It is really easy to be some trial lawyer(with an online JD) to look back and say "the nursing notes said severe chest pain" even though 99/100 solid EM physicians would have called a particular patient a spoof. what I'm saying is that the feds require us to see/treat all comers regardless of their citizen status, insurance status, or nastiness status. these players don't pay their bills but can still sue my family for millions of dollars for missing a diagnosis. we are like federal employees and yet get NO federal protection for the true infrastructure we provide-day or night. We should only be held liable for true aggregious acts and then maybe, just maybe we can start to act like the doctors we set out to become...

  11. Recently in Illinois, an infant was rushed to an emergency room by his parents for incessant crying and vomiting that prevented him from nursing. The emergency room physician diagnosed the infant with a gastrointestinal colic and sent the family home with instructions on how to cope with the colic. The next day, the infant suffered a painful death, due to a rare heart defect that the doctor could have discovered by ordering a standard chest x-ray. When the infant's parents hired Chicago medical malpractice lawyers and sued both the hospital and the emergency room physician, a jury found both defendants liable for $2,250,000. Multi-million dollar medical malpractice verdicts beg the question of how juries arrive at such numbers. What is the just measure of punishment for a doctor's error that can adequately compensate the loss of grieving parents? Obviously no amount of money could ever compensate parents or make them whole after the loss of a child. Visit Medical negligence claims to get more information about this.

  12. I'm going to have to agree with the anonymous poster above.
    "I vote for health courts. There is no way a physician could get a jury of peers (unless peer=human being) here in the Land of Senate Seats for Sale."
    I think it would be fair and reasonable.


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