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 plaintiffís 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 patientís 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, Workmanís 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. Donít 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 didnít know existed. That lawsuit taught him a lesson he will never forget. But I donít know what that lesson was. Do you?
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