Essays
Medical Malpractice in Oregon
Author: Samuel Metz
Date: 01/28/2006
Last year, Oregonians voted
down a cap on portions of medical malpractice awards. Had
this cap been enacted, it would have reduced the maximum
amount of money a jury could award to an injured patient
and possibly have reduced medical malpractice premiums in
the state. Was voting down this proposal wise?
A recent medical malpractice
trial in Oregon provided an answer, although neither
obvious nor simple.
The plaintiff’s husband,
otherwise healthy, underwent an operation for abdominal
pain. He died of a heart complication afterward. The legal
decision hinged on information that may have altered the
patient’s outcome if, before the operation, the
anesthesiologist had known about it.
As an anesthesiologist, I
took a keen interest in this case. Some issues jumped
out.
First, our method of
compensating medically injured patients is abysmal. This
family was left without a breadwinner and clearly needed
financial help. Would they join the small minority of
medically injured patients to receive any help at all, or
be left bereft because no negligence was involved?
A bigger issue is how little
money collected in malpractice premiums ever reaches a
patient family. Nationwide, attorneys (both plaintiff and
defense), medical experts, and miscellaneous bureaucratic
friction consume 60% of the $7 billion insurance premiums
annually paid by physicians. This figure does not include
court costs to deal with the deluge of law suits or the
$50 billion (estimated in 2004 by the Washington Post)
spent by physicians to prevent lawsuits rather than to
improve care.
In comparison, Workman’s
Compensation (not exactly a model of bureaucratic
efficiency) returns 80% of fees to injured workers, and
does so without requiring a trial.
Second, medical errors are
predominantly clerical: transcription mistakes, misread
numbers, lost pieces of paper, etc. What other life and
death industry routinely circulates critical information
on hand-written scraps of paper stuffed in a multi-inch
stack of papers in hopes the right person will discover
it? Would you fly into Portland if air traffic control at
PDX were like this? Would you want a nuclear reactor in
your county if the only barrier to nuclear meltdown was a
harried safety officer sorting through a mound of bad
handwriting?
Ironically, the Veterans
Administration is at the vanguard. All medical records are
electronic. Finding information takes no more than the
equivalent of Googling a chart. In 0.3 seconds, 15,000
pages of medical information can be scanned for relevant
information. Don’t you wish your physician could do that?
Third, errors are not
negligence. Every physician makes errors. Most errors do
no harm, but some do. When the family of an injured
patient sees an error, it is hard to accept that
perfection is an unreal expectation. Patients seeking care
from error-free physicians can pick freshly graduated
medical students, too junior to have committed their first
error. Quality improvement means creating a system that
minimizes errors, not one that ejects anybody who commits
one (i.e., everyone).
Fourth, we physicians do a
less than adequate job of policing ourselves. We know all
physicians commit errors (a difficult concept to swallow
when signing a surgical consent), but a small minority of
physicians practice dangerously. How do physicians
identify these rare colleagues? How do we identify risky
practices? How do we react to these problems? The answer
is: Not well enough to dramatically improve care and
certainly not well enough to reassure our patients.
Rightly or wrongly, the
public believes our medical malpractice system is their
only protection against bad care. Whether our malpractice
system provides any protection is debatable, but
physicians face a more important question? What have we
done to win public confidence? What have we done to
convince patients that we actively identify and remediate
bad medical practice before patients are injured?
Reflecting on this trial, it
was clear that capping malpractice judgments misses the
point. Our medical malpractice system cannot be fixed; it
muse be discarded and replaced. Oregon needs a method of
compensating injured patients without pitting physicians
against patients and without overwhelming our courts. And
we need a better method of improving medical practice.
First, a program that
compensates injured patients fairly, efficiently,
promptly, and without litigation should be based on family
need, not physician fault. This program would coax
physicians out of the contentious relationship with
patients that our current system fosters, and convert them
to patient advocates when an injury occurs.
Second, a program to improve
medical care must begin with us physicians. Oregon needs a
transparent, credible, and effective quality assurance
project to restore public confidence and improve medical
care. Our National Transportation Safety Board is an
excellent model: an impartial panel of experts to review
every critical incident with the intent of finding
remediable errors. No witch hunts; no blame assignments;
just a search to improve competence and safety.
Until injured patients
receive fair compensation, Oregonians should not tamper
with access to courts. After all, it may be the only way
some patients receive financial help. And until physicians
take over their own peer-review process, the public cannot
be denied their only perceived opportunity to improve
medical care.
By the way, the jury found
the anesthesiologist negligent for not reviewing a piece
of paper he didn’t know existed. That lawsuit taught him a
lesson he will never forget. But I don’t know what that
lesson was. Do you?