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The Human Side of Malpractice: Speaking the Unspeakable

Explore the personal journey of a doctor who experienced the consequences of malpractice and the societal impact it had on his life. Learn about the history of malpractice in America and the legal goals it aims to achieve. Understand why certain physicians are more at risk for malpractice suits and the nature of human error in the medical field.

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The Human Side of Malpractice: Speaking the Unspeakable

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  1. Good Day

  2. The Human Side of Malpractice Speaking The Unspeakable

  3. Bryan… • ER Physician, married, two young daughters • Missed a minor change on an EKG • Sued, lost $2 million, had $1 million insurance • Abandoned and blamed by his community and church, began drinking… • Sued by his wife for divorce….

  4. High Risk (Surgery): 99% with a 90% probability before the age of 45 Low Risk (Family Practice): 75% with a continuous pattern throughout a career Gregory Pokrywka Cardiology Review , 33-34 February 2012

  5. The Human Side of Malpractice A Brief History There have been 6 periods of time identified with marked increases in malpractice suits: 1840-1860, 1890-1900, 1920-1930, 1960-1970, 1975-1985 and 2000-today. All periods have been associated with broad change in social and legal concepts of personal liability and social values that merely included medicine Today: A backlash against managed care and all things authoritarian

  6. The Human Side of Malpractice A Brief History of Malpractice In America • The First “Malpractice Crisis” occurred in 1840 • From 1840-1860, the number of reported cases rose 950% • This explosion of cases was actually part of a larger trend by the courts to allow greater access of the common citizen to the courts

  7. The Human Side of Malpractice A Brief History (continued) • Factors in the legal profession that caused an increase in suits included: • The Jury System (rather than experts; contrast the Napoleonic Code) • Tort Law Liability (rather than Contract Law, without the possibility of limited liability)

  8. The Human Side of Malpractice A Brief History (continued) • Legal reforms occurred as a reaction to the strict tort laws of England: • Contingency Fees were allowed • Rules of causation and who could testify about the standard of care were relaxed • Personal liability concepts were expanded to include pain and suffering

  9. The Human Side of Malpractice A Brief History (continued) • Medical Innovation and new cures brought with them new risks • Medical Standards allowed legal accountability • The Advent of Malpractice Insurance in the 1890’s made malpractice suits profitable

  10. The Human Side of Malpractice A Brief History (continued) Malpractice liability laws were initially viewed by the best physicians as a way to drive charlatans and amateur hacks from practice The absence of clear standards of practice resulted in open licensure of any and all, from “the woman down the lane who grew a few herbs to surgeons apprenticed in European hospitals.”

  11. The Human Side of Malpractice A Brief History (continued) Ironically, the development of published medical treatment standards allowed physicians to be sued, since the standards provided the norms against which a bad outcome could be measured “It is better to be without a diploma…to be able to say ‘I make no pretensions, I only gave my neighbor in his suffering what aid I could.’ ” William Wood MD, US Navy Physician 1849

  12. Commonly Stated Legal Goals • Compensate Injured Patients • Create Incentives to Reduce Errors and High Risk Behaviors • Increase Informed Consent and Achieve Patient Advocacy Goals

  13. Commonly Stated Legal Goals • Are these goals attained in the current system?

  14. The Human Side of Malpractice Which physicians are sued most often? • Highly trained, competent and skilled in either diagnostic or procedural disciplines (rather than chronic care) • In practice for more than 5 years • Somewhat less charismatic or personable • Typically not the “bad apples”

  15. To Understand why this is true it is important to look first at the nature of human error

  16. The Human Side of Malpractice Types of Human Activity • Skill-Based Activity: Driving an automobile • Rule/Knowledge Based Activity: Solving a new problem, something we have not encountered before, using a principle we have learned elsewhere; If/Then… Lucian Leape, JAMA 272:1851 (1994); Harold Kaplan J. Legal Med 24:29 (2003)

  17. The Human Side of Malpractice The Nature of Medical (Human) Error • Error in Skill-Based Activity: Inattention or “unavoidable” confusion of information…for example, locking the keys in your car when distracted by traffic or a child’s crying • Error in Rule/Knowledge Based Activity: Ignorance/Over-extension: not knowing what we do not know…for example, assuming a 4-way stop at a 2-way stop intersection

  18. The Human Side of Malpractice • Expertise in any human endeavor necessarily involves high levels of skill-based knowledge • The greater the expertise and experience, the greater the skill-based knowledge/performance As we become expert, knowledge-based errors decrease, and skill-based errors increase …Net Effect: the overall error rate falls and is quite low

  19. The Human Side of Malpractice • The Problem: a false sense of certainty • Behavioral experiments show that all humans overestimate their knowledge • Expertise in a given subject typically (1)decreases errors but also (2)increases overconfidence Even though wrong, we become more confident we are correct, making error analysis/error recognition more difficult

  20. The Human Side of Malpractice • Skill Based Behavior relies heavily on Pattern or Context Recognition • White Wine colored Red is tasted as Red Wine • Chocolate flavored yogurt is tasted as strawberry yogurt when told it is strawberry flavored Context/Pattern: The “Frame” something is in determines how we perceive it

  21. The Human Side of Malpractice • The part of our brain that governs conscious recognition is relatively small, and can only process 40-60 bytes/second • The entire cognitive processing capacity, including the visual and unconscious is estimated at 11 million bytes/second • The cognitive component allowing careful, considered decisions functions <5% of the time, the unconscious functions >95% of the time…

  22. The Human Side of Malpractice • Unconscious decision making is based on limited information, cues or signals… • Dominates over cognitive decision making when there is too much information, or when the person is tired, stressed or preoccupied, and tends toward impulsive behavior/decisions… • Guides our behavior at least 95% of the time… Deborah A Cohen Diabetes (July 2008) 57; 1768-1773

  23. The Human Side of Malpractice • The Nature of Medical (Human) Error • Most errors are systems problems, rather than knowledge- or skill-based (“Latent Errors”) • …”accidents waiting to happen” such as the Titanic which had inadequate lifeboats, no shakedown cruise, and no “lids” on the watertight bulkheads, inadequate radio systems to receive warnings • Design Problems… Lucian Leape, JAMA 272:1851 (1994); Harold Kaplan, J. Legal Med 24:29 (2003)

  24. The Human Side of Malpractice • When Systems fail and when Pattern/Context Recognition does not alert us to the unusual, undetected errors occur • It is only when outcomes differ from expected that we begin to see the problem

  25. The Human Side of Malpractice • Therefore: • Medical Errors that result in malpractice suits most often occur in situations that cannot be avoided, regardless of the personal concern, medical skill or high level of detailed “error proof” care given by the individual physician • Perfection is not possible

  26. The Human Side of Malpractice Remember: Negligent Error is not volitional error …There is no intention to harm

  27. The Human Side of Malpractice Negligent Errorusually occurs as a part of normal, ethical moral behavior…and is usually not due to a breach of personal or professional standards

  28. The Human Side of Malpractice Why do patients sue? Most suits are brought for (1)sudden, (2)unexpected bad outcomes that are (3)perceived of as (4)severe, either in (5)personal or (6)financial terms Sense of betrayal, seeking meaning and significance for their suffering

  29. To Err Is Human… Emotional/Personal Patient Goals… • Patients begin by asking “what happened?” • Become angry/distrustful when they find no answers… • …And seek ultimate answers in court to questions such as “why me?” and ultimate solutions such as “never again to another”…and still find no answers

  30. What Do We Know About Bad Outcomes? • “Bad Outcomes” • “Avoidable Adverse Events” • Medical Error • Criminal Negligence • Homicide

  31. The Human Side of Malpractice • “He uses statistics as a drunken man uses a lamppost…more for support than illumination” Andre Lang

  32. Do we compensate patients injured by medical errors? The Harvard Medical Practice Study: 1991 Disease Associated “Bad Outcomes” • 2% of all negligent injuries were filed • Only 1/6 of claims filed were for negligent injuries Iatrogenic without “fault” Iatrogenic with “fault” Filed Claims

  33. Do we compensate patients injured by medical errors? The Harvard Medical Practice Study: 1991 Disease Associated “Bad Outcomes” “Legitimate” Focus of Litigation Iatrogenic without “fault” Iatrogenic with “fault” Filed Claims

  34. The Harvard Medical Practice Study: 1991 21 of the 46 claims were settled in the patient’s favor over 10 years: • 10 (of 24) were for disease-related, non-negligent outcomes and averaged $98,700… • 6 (of 13) were for iatrogenic, non-negligent outcomes and averaged $98,000… • 5 (of 9) were for iatrogenic, negligent outcomes and averaged $62, 000

  35. Does Litigation Improve Quality of Care? The adversarial system virtually guarantees the medical errors are not discussed or examined to any significant degree…with the traditional legal advice of “deny and defend” We do not even have a good estimate of how much error exists (see Weingart and Iezzoni, JAMA 290:1917 (October 8, 2003)

  36. To Err is Human… Current Malpractice Litigation • Is seriously and fatally flawed… • It fails to achieve the social goals of (1) Compensating injured patients; (2)Creating incentives to reduce medical errors and resulting injury; (3) Interferes with quality medical care by decreasing open dialogue between the physician and patient, and by increasing cost and decreasing access

  37. Suggested Reforms Include… • From Physician Organizations: • Mediation rather than litigation • Limits on Pain and Suffering awards • Abolish or limit Joint and Several Liability • Certification of a case before filed (expert opinion)

  38. ABA Journal October 2006

  39. Plaintiff Bar: “My income has dropped to probably 10 percent of what I made in 2003.”

  40. Defense Bar: Tort reforms in Texas “…hit the defense side hardest first.”

  41. Other Suggested Reforms Include Efforts to Reduce Medical Error… • Greater protection of peer review from discovery • Protection of reported errors from discovery • Non-punitive and non-judgmental reporting of errors and the information gleaned from such studies • View errors as “pearls in the rough,” as part of the development of systems to reduce error • Adopt a pro-active attitude toward error

  42. The Personal Side of Malpractice • The Problem… • Few of these solutions solve the greater issue of the emotional injuries suffered by patients and physicians • Until they do, malpractice will impact the actual practice of medicine, increasing cost and interfering with the physician- patient relationship

  43. Physicians Liability Insurance Company of Oklahoma (PLICO) has been a pioneer in this movement… Oklahoma was the first state to have law allowing a physician to say “I’m sorry this happened” without liability

  44. Physicians are personally threatened… Our current legal malpractice system must assign blame and shame… Who did what terrible thing wrong?

  45. To Reform the System to one that recognizes the emotional injuries… Possible reforms include binding arbitration or mediation …based on “avoidable adverse events” rather than negligence… “No fault” reimbursements, modeled after Workmen’s Compensation, to reimburse “avoidable medical injuries”…

  46. A Proposal for Reform… A Theory of Law, the “Therapeutic Jurisprudence Approach” • Early Intervention Mediation1 • Arbitration 1Kraman and Hamm “Risk Management: Extreme Honesty May Be the Best Policy” Annals of Internal Medicine 131:963 (1999); Whitman, Park and Hardin “How Do Patients Want Physicians to Handle Mistakes?” Arch Internal Medicine 156:2565 (1996)

  47. A Proposal for Reform… “Therapeutic Jurisprudence Approach” Originally defined by David Wexler: “People should be better off after their contact with the law than they were before.”1 This includes psychological and physical well being 1Edward Dauer Journal of Legal Medicine 24:37ff (March 2003)

  48. However… The psychological brutality of our current system damages caregivers and does not answer any ultimate questions… for the patient or the physician…

  49. The Personal Side of Malpractice • Take a 10 minute break…

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