Speaking Notes

March 3, 2010

PADM 5791

Dr. Neubauer

WHERE WE ARE:

Midterm examinations are ready to be returned.

We are in Chapter 7 of our textbook.

Selected aspects of Chapter 7 -- Medical Malpractice and Medical Liability

The word "iatrogenic" refers to medical problems that are a result of medical care.

• Defensive medicine produces more chances for there to be iatrogenic events.

The U.S. has an unusually high incidence rate of medal errors. There is large potential for savings in this regard. There are consultants and companies that specialize in helping hospitals and other providers prevent medical errors.

Some medical errors are the result of personal mistakes and/or negligence.

The origins of most medical errors are SYSTEMIC in nature. They are the result of COMPLEX work environments and complex PROCESSES.

There are some IT solutions such as EXPERT SYSTEMS that check for contra indications regarding combinations of medications.

I don't think this kind of quality assurance (QA) is exactly like industrial-type QA.

• HEALING is a natural process. When it goes well, the physician gets paid. When it goes wrong the physician may get sued. (This is not an attempt to push fault onto the patient.)
• Patients participate in decision making.
• Trust is a two-way street and at best the physician and patient are "in this together."

Clearly there are some medical errors that are the fault of a provider, including examples like the following.

• The right medical surgery applied to the wrong part (wrong eye, wrong knee).
• A medical procedure done to the wrong patient.
• A patient receiving the wrong drug or other treatment.
• Incorrect data being entered into a medical chart.
• A newborn baby going home with the wrong birth mother.
• A patient falling because bed rails were not set property.
• Patient neglect leading to physical or emotional distress.
• Sponges or other surgery supplies/tools left in the patient.
• Infections or other diseases acquired in a medical care setting.

There are many sources of medical errors and many possible means of prevention of medical errors.

• No outrageous use of medical interns.
• Proper screening and training of technicians and other employees.
• Physician not working under influence of drugs or alcohol.
• Proper cleaning of surgery packs.
• Frequent hand washing.
• Use of barcodes or RFID chips on patients and medications.
• Reporting of errors so that INSTITUTIONAL LEARNING is possible.
• Talking to patients and informing them of what is going on.
• Involving friends and family members when possible and appropriate.

PEER REVIEW AND REPORTING among physicians should help but physicians are very reluctant to "tell on" each other.

The available "lists" of physicians and their records is not usually easily available to patients.

State medical boards do not often share their data with one another.

Only a small percentage of errors result in law suits. Of those that do, most cases are settled before going to trial.

Certain kinds of medical practice (such as OB/GYN) have very high malpractice insurance premiums.

To be liable, a physician must have . . .

• deviated from generally accepted medical practice
• the injury must be the result of error and not the normal risks of medical treatment or the patient's prior condition
• the error caused the injury
• the patient experienced an actual loss or injury
• the assumed skill of the physician is assumed to be that of an average physician
• the quality of practice is judged by local community standards

Malpractice premiums are high for several reasons.

• The insurance company expects to make a profit. The aggregate of claims is quite unpredictable, so they naturally err on the high side.
• Knowing that physicians and hospitals have insurance may encourage patients to sue and seek high awards.
• Lawyers work on contingency and generally get one-third of the settlement. They have a personal incentive to run up the awards for "pain and suffering."
• Juries sometimes go to extremes in "compensating" and for "punitive" damages.

As is usually the case, a small percentage of physicians have frequent claims against them and most physicians have very few patients sue them. But the EMOTIONAL BURDEN of being sued can be very high and lead to anxiety, depression, and even suicide.

Increasingly the focus of litigation is SHIFTING from physicians to hospitals and MANAGED CARE PROVIDERS.

This kind of makes sense because managed care providers constrain what physicians can do for their patients. Plus, it give the administrator reason to think twice before "cutting corners" in ways that may jeopardize patients.

MAJOR KINDS OF PROPOSED LEGAL REFORMS.

• Place caps on non-economic damages.
• Shorten the statute of limitations
• Create special courts for these kinds of cases.
• Make the current system more transparent (so patients can easily gain information about physicians).
• Alternative dispute resolution methods
• Move the burden of liability onto organizations rather than individual physicians.
• Build malpractice insurance into the patient's insurance policies rather than the physician's insurance policies.
• Go to some kind of "no fault" system creating a pool of money from which to compensate victims of medical malpractice/errors.

This is BIG BUSINESS for attorneys and the attorneys have powerful lobbyists who argue that any constraints on malpractice litigation are unfair to patients. They argue that "bad" doctors and drug companies must be PUNISHED for misdeeds. They also argue a DETERENT EFFECT.

The deterrence argument and the punishment argument suggests an intent to injure. It is similar to the argument for the death penalty.

If the intent is to channel money from medical care into the bank accounts of attorneys the present system is well designed.

If the intent is to prevent accidents and weed out INCOMPETENCE then there are better ways of doing these things.