What do surgeons and liability attorneys want for patients and the health care system? Their answers are likely more similar than is frequently acknowledged.
Commitment to safety
Both surgeons and patient attorneys are committed to patient well-being and the relief of patient suffering, and both have a vested interest in patient safety. They demand high-quality surgical care for patients, meaning that the right patient gets the right operation at the right time done in the right way by the right surgeon.
Yet that ideal cannot always be met. When things go wrong, when patients get hurt through no fault of their own, when looking back we can see the patient’s injury was entirely preventable, physicians and patient attorneys share two additional goals: to ensure that medical errors are not repeated and to correct the harm that was done.
Surgeons and liability lawyers believe that the causes of medical errors must be identified and discussed so that health care professionals know how to prevent injuries in the future. American surgery can pride itself on its spirit of accountability and perpetual improvement, evident for instance in the tradition of regular morbidity and mortality conferences. From a trial lawyer’s point of view, liability cases are equally powerful tools for promoting reflection, re-education, and reform in medical practice. Injured patients are aware of this already when they seek legal counsel for their medical case. Indeed, anecdotal evidence suggests that many patients pursue lawsuits largely as a means of preventing harm to others. They see a lawsuit as their only means of making the medical system safer for other patients. Many liability lawyers are motivated by a similar conviction.
Surgeons and patient attorneys also share the belief that injured patients should receive care that improves their conditions or some other type of reparations. For surgeons, this often means providing patients with the most appropriate medical or surgical services immediately after an error has been made. Attorneys and our civil justice system address patient harm through compensation, using money as an inadequate but necessary substitute for loss of health or life.
Surgeons belong to an ancient and esteemed profession; every day, surgeons cure disease, relieve pain, and make lives better. Attorneys see themselves as members of another healing profession, helping to restore to broken lives some measure of independence and dignity. Indeed, the word “compensation” is derived from the Latin “pensare,” meaning to weigh one thing against another. To compensate injured patients thus means, quite literally, to restore a balance in their lives.
Part of the legal healing process that health care providers should want to encourage is restoring the patient’s trust in their caregivers. When injured patients are treated fairly in the legal system, it helps restore their trust by facilitating communication between the clinician and the patient and providing clarity about a potential error and how it occurred. Finally, liability cases and fair compensation are means of honoring patients. Because they draw attention to patient suffering and physician error, they help ensure that the opportunity to prevent harm to another patient will not be lost or wasted.
Essence of civil justice
Democracy, Winston Churchill once said, is definitely the worst form of government, “except for all those other forms that have been tried from time to time.”1 Likewise, the civil justice system is easy to criticize. It’s too expensive. It takes too long to reach resolution. It can be emotionally difficult on all the participants. But it’s not broken. And like other democratic institutions, nothing better has been invented for the fair resolution of disputes. Our system is fair to the participants in the following fundamental ways:
- The system is even-handed; the same rules apply to both sides.
- The system respects the uniqueness of each litigant. Patients have the opportunity to demonstrate the full dimensions of their injury and suffering without barriers like caps on damages (at least in some jurisdictions) or payment schedules, and health care providers can justify their treatment decisions by demonstrating the uniqueness of a patient’s case.
- The American civil justice system respects and maximizes the freedom of the litigants, enabling each side to run its own lawsuit as it sees fit. Litigants hire whatever lawyers they want, pay whatever fee they negotiate, and hire whatever expert witnesses they want. Then they present their cases in courtrooms over which professional judges trained in neutrality preside and to juries drawn from a cross-section of their communities. Even in other Western democracies, these freedoms do not always exist.
In the spirit of honoring patients who have suffered injury, several patient cases are described here. It is tempting to view liability litigation and reform from 40,000 feet; these patients represent the view from sea level.
- A backhoe operator lost median nerve function after undergoing a brachial plexus “cut down” for asymptomatic subclavian atherosclerosis. On repeat operation by a different surgeon, the area of nerve damage matched the width of a retractor, indicating how the nerve had likely been killed. At the trial, two vascular surgeons testified in defense of the patient’s original surgeon, defending the surgeon’s clinical prerogative even as they acknowledged unfamiliarity with the technique he used and the absence of literature advocating the “cut down” technique. In this case, as in many others, the defense defended indefensible care.
- Another patient, a diesel engine mechanic, underwent what was supposed to be a routine cholecystectomy. His surgeon, however, severed the common bile duct and, when he realized the mistake two days later, performed a Roux-en-Y repair. The surgeon had no hepatobiliary expertise but chose not to refer the patient to an internationally renowned surgical center a short distance away. The patient later died of liver failure due to recurrent, ascending infections from the new, too short “bile duct.” Again, surgeons testified in defense of the responsible clinician.
- A home builder underwent a revision mastoidectomy by a general otolaryngologist. After the operation, he had difficulty reading and recalling friends’ names. A computed tomography scan clearly indicated that a surgical instrument had been inserted into his temporal lobe from the operative site in the mastoid cavity. The surgeon’s strategy throughout the case was deny and defend—claim that nothing had gone wrong and argue that the procedure was performed appropriately.
Incentivizing high-quality care
Although the incidents previously mentioned are not representative of the vast majority of operations performed in the U.S., the “deny and defend” response from physicians is quite common. This reaction may be due in part to the perverse and dangerous incentives that characterize the American medical system. For instance, the fee-for-service model provides a disincentive for less-qualified surgeons to refer patients to trained specialists. Also, until the recent establishment of Medicare “never events,” hospitals were actually paid more for worse care in that they received payment for treatment of complications.
Finally, the common model of independent medical and surgical practices means that there is often no employer with the authority and incentive to ensure appropriate credentialing of employee physicians and to oversee the delivery of high-quality care.
One legal reform could go a long way toward fixing this problem. If surgeons were employees of their hospitals and not independent contractors, the employer would have both the muscle and the financial motivation to better supervise individual practitioners. It’s called “enterprise liability.” Military and Veterans Affairs hospitals already have this policy in place, and it has been beneficial to both patients and providers.2,3 Enterprise liability also lowers litigation expenses, because there is one defendant, the institution, and one defending legal team. Enterprise liability facilitates equity in insurance premiums, as the institution can determine which percentage of global insurance fees can reasonably be borne by a small number of high-risk subspecialists. Outside the government, medical practice is becoming more corporatized, and so enterprise liability fits into a trend that is already happening. Surgeons in particular would stand to benefit from this practice model.
A related concept is “enterprise notice.” Under this policy, the plaintiff’s attorney brings a notice against an institution where the patient suffered apparent harm, stops the statute of limitations “clock,” and can then carefully determine which clinicians ought to be included. This practice prevents lawyers from using the “sue everyone who touched the patient” tactic, especially when they are faced with a limitations deadline for filing suit.
Given the aforementioned strengths of the U.S. civil justice system, patient attorneys are confident that the tort system is the best method for the resolution of medical disputes and the compensation of patient injury. Nonetheless, some currently proposed liability reforms could be effective adjuncts to the tort system. A malpractice attorneys’ perspective on several of these approaches follows:
Disclosure and offer (D&O) programs
D&O programs might be summarized as acting openly and honestly with the patient, and no new laws or legal reforms are needed to enable physicians to be upfront and honest after harm has occurred. Furthermore, insofar as the civil justice system promotes fairness and truth, it already fulfills some of the central goals of D&O programs.
Nonetheless, lawyers tend to be receptive to early offer and apology programs, with several key conditions. First, participation of all hospital staff, including non-employee physicians, must be mandatory. If not, patients may misread a clinician’s failure to apologize as an indication that whatever happened was not a preventable, compensable error. Second, patients must have the right to hire their own attorneys, and lawyer presence should be encouraged. Just as physicians, hospitals, and health care systems have their own counsel, so too should patients. Equal representation will ultimately protect hospitals from accusations of undue influence or fraud. Third, any clock for legal deadlines should be stopped for the duration of the patient-hospital talks. Patients should be offered fair compensation, and patients who decline early offers must not be penalized. Finally, whereas apologies should be protected from use in court, the facts behind them should not.
Although the safe harbor principle may be touted as a novel proposal, features of it are already written into law. Federal Rule of Evidence 803(18) states that clinical practice guidelines and other authoritative professional literature may be discussed at trial by either side with a sponsoring expert witness to explain them. Plaintiff and defense attorneys already use guidelines to support or defend the claim. However, the safe harbor concept becomes unacceptable if it allows guidelines to be used as a “get out of jail free” card. Guidelines must be useful in exonerating and implicating clinician wrongdoing.
Acceptance of one-way guidelines would foster a “race to the bottom” in terms of the quality and clinical utility of those guidelines. Safe harbor legislation would incentivize only minimalistic standards of care. In addition, guidelines vary in quality. Different professional groups endorse different guidelines, often in keeping with their own professional interests, and not all guidelines are based on the gold standard of randomized controlled trials.
Clinicians will appreciate that guidelines do not always apply to an individual patient’s care. Physicians would not be necessary if medicine were solely a matter of guidelines and algorithms. Why should clinical guidelines be legally conclusive if they are not always conclusive in real-life medical practice?
In the eyes of many attorneys for injured patients, compensation schedules are “a solution in search of a problem.” Clinicians may favor compensation schedules in part because they often tend to overestimate average lawsuit payments to plaintiffs and similarly underestimate juries’ favor of physicians. Indeed, research studies have shown that even among cases that insurance companies have classified as “indefensible,” plaintiffs win only half the time.4 It is also important to note that the occasional outlandish verdict/award is invariably revised and reduced by the trial judge or the appellate court. The better approach is what the system already has: individual decisions on appropriate damages, with the jury acting as the “conscience of the community” and judges providing oversight.
Many clinicians favor the implementation of health courts, in which a judge with special training in medical liability determines the verdict instead of a jury. However, this scenario may be less favorable to clinicians than they think. Are juries biased? Absolutely, but not against physicians, as the medical community tends to assume. Juries have a very heavy thumb on the scales of justice favoring the physician defendant. Indeed, it is unlikely that a health court—and a judge trained in medical law and impartiality—will be as biased in physicians’ favor as juries tend to be. In veterans’ and military hospitals, for instance, where life-appointed federal judges from both political parties decide cases, the plaintiff’s win rate is considerably higher than it is for equivalent cases before juries.5
Additionally, a shift from negligence to preventability as the legal standard solves no problems. The system must maintain and enhance accountability for errors, and avoid conflating harm due to error with unavoidable clinical risk; if we compensate all harms in hospitals, even non-preventable ones, the system loses all connection to accountability for doing a poor job. Furthermore, the goals of the medical liability system should not be to compensate all patients who suffer harm, but to compensate those individuals who have injuries that were preventable and are severe. It’s the disabled, maimed, paralyzed, brain-damaged patients, and family members of those killed who need a system that tries to bring some measure of justice to what’s happened to them. The health court system must not divert resources from the compensation of relatively few severely injured patients to that of many mildly injured patients. The system must serve those who have suffered the greatest harm and greatest loss.
In discussing health courts, safe harbors, and other reform proposals, surgeons should consider the following litmus test of fairness: Is this reform one you would advocate if the tables were turned, and instead of speaking for physicians you were advocating for a family member injured by care at a medical institution other than your own?
Patient safety initiatives
Patient safety is a priority for medical liability lawyers and clinicians alike. It has been demonstrated that patient safety initiatives result in healthier patients and dramatic savings for insurers and hospitals.6 For those clinicians who have little sympathy for patient injury attorneys and their work, this should be a particularly appealing solution. Furthermore, patient safety is a strategy that does not require the participation of the plaintiff’s bar or state or national legislatures.
The statistics regarding medical error are dramatic and dire, but the numbers themselves are not the point: behind each number is a patient, a person, and a family whose lives were broken by preventable medical errors. These people deserve to be treated honestly and fairly by our compensation system. Just as importantly, these patients want assurance that their suffering has not been in vain; they want to help make sure that the same thing doesn’t happen to other people. Indeed, this is the charge for both the legal and medical professions.
- Langworth R, ed. Churchill By Himself: The Definitive Collection of Quotations. New York, NY: Public Affairs; 2011.
- Peters PG. Resuscitating hospital enterprise liability. Missouri Law Review. 2008; 73:369-397. Available at: http://www.law.missouri.edu/lawreview/docs/73-2/Peters.pdf. Accessed January 23, 2013.
- Abraham KS, Weiler PC. Enterprise medical liability and the evolution of the American health care system. Harvard Law Review. 1994;108(2):381-436.
- Peters PG. Doctors and juries. Mich Law Rev. 2007;105(7):1453-1495.
- Cohn TH. Federal Tort Trials and Verdicts, 2002–03. Washington, DC: U.S. Dept. of Justice, Office of Justice Statistics; 2005.
- Grunebaum A, Chervenak F, Skupski D. Effect of a comprehensive obstetric patient safety program on compensation payments and sentinel events. Am J Obstet Gynecol. 2011;204(2):97-105.