by Dawn J. Lipthrott

As stated in the article on tort reform, legal medical liability reform is needed to stabilize the system and prevent additional injury to both patients and physicians, but it is not enough. I believe we need to stabilize the system as much as possible, yet at the same time, focus on designing a more fundamental and encompassing framework. How could we create an approach within the framework of ethical health relationships that would includes values of responsibility, justice, care and valuing of all partners, compassion, collaboration, respect and integrity?

Relationship is that physical, emotional, and spiritual space between us (Martin Buber). We constantly create the climate of that space by what we say or do, fail to say or do, and the way we speak and act -- individuals and as groups. How do we create a more just and ethical space of relationship for all involved when we are faced with serious injuries caused by the system?
Patient well-being is the purpose of healthcare, and physicians are the primary givers of that care. Nurses are also essential for both the patient and the physician. That core 'relationship space' must be valued and it must be continually supported and strengthened by all that impact that relationship. The health and well-being of physicians and nurses are also essential for quality healthcare to be sustained. Creating more ethical health partnership in this area would involve protection and care of that core. Physical and emotional safety for all is fundamental.

The Medical Liability Tort System:
The initial goals of creating a medical malpractice liability claims process through the judicial system were to compensate victims of injury resulting from negligence or substandard practice, to hold person(s) accountable for damaging actions (or failure to take action), and to deter physicians, nurses and others from committing negligence in the future. However, the current system fails to do all of those things in a fair and efficient way. In fact, in spite of its initial positive intents, it has created additional damage at many levels for both patients and physicians. It is time to create a more ethical approach.

Stages of Addressing Patient Injury:
To me, there are 4 basic phases to address regarding injury to patients:
      1. Prevent Injury
      2. Communicate in an honest, empathic, and open manner
      3. Repair, compensate (when appropriate) and support patient and physician through the process
      4. Improve the system of care based on what is learned from the injury

Meaningful reform must include focus on patient safety, acknowledgement of injury to patient with explanation and empathic communication, and prompt compensation limited to medical expense and economic loss not covered by other sources. Both patient and physician should be supported throughout the process of addressing the injury. Through analysis of the factors leading to the injury, changes should be made in the system in order to prevent future injury. This acknowledgement and plan for action should be communicated to the patient.

1. Prevent Injury:
First, each and every partner in healthcare must commit to creating and improving patient safety, each day, in all elements of patient care. By 'partner' I mean individuals and groups; physicians, nurses, technicians, therapists, pharmacists, administrative staff, hospital administration, pharmaceutical companies, government, insurance and health plans, patients and their families.
For several years, extensive data has been collected on medical errors. Most of the focus has been directed toward inpatient hospital care. However, several national associations of medical specialties, national associations of nurses, and other groups have created committees, collected data and some of implemented improvement plans. Patient safety has become a priority at both national and local levels.

System and individual error:
Through the current medical malpractice system, when injury occurs, the focus has been and continues to be on finding the individual doctor(s) and/or nurse(s) to blame and hold responsible for the injury. By the very nature of the legal system, the assumption is that injury occurs because someone was incompetent or uncaring. The attorney for the patient must work to prove negligence in some way, shape or form. Unfortunately, the accusation, shaming and blaming approach is especially damaging to physicians who are competent and caring.

Are physicians and nurses incompetent, uncaring, and negligent? A few are. In most cities, there are a small percentage of physicians that consistently provide substandard care. Hospital administration and professional regulatory boards need to do a better job of identifying and intervening with those individuals. Intervention may include a range of actions--supervision, additional training/mentoring, or removal from patient care.

While it is easy to blame an individual for an injury, evidence continues to mount that more often than not, errors are caused by breakdowns in the system, not the individual. These same conclusions have been found in other high performance and complex systems like aviation, nuclear power and others. The IOM report, To Err is Human, pointed out the obvious -- people will make mistakes, not because they are incompetent, but because they are human. But those other industries have focused on creating and modifying systems to catch the error before it becomes critical and causes significant damage.

Anesthesiologists lead the way in improving safety:
Human performance research shows that factors like prolonged stress, extended work hours, fatigue, reliance on memory lead to error in even the most competent individuals. The American Society of Anesthesiologists have become leaders in the medical field of using a systems approach to improve patient safety. In 1984 they voted to create the Anesthesia Patient Safety Foundation with the goal that no person shall be harmed by the effects of anesthesia. Their purposes were listed as:

* "to foster investigations that will provide a better understanding of preventable anesthetic injuries;
* to encourage programs that will reduce the number of anesthetic injuries; and
* to promote national and international communication of information and ideas about the causes and prevention of anesthetic morbidity and mortality."

They have looked beyond the individual to human performance factors, equipment improvements, standardized procedures and checks, recovery room monitoring, using mental maps and more. They have also focused on the "chain of accident evolution", looking at the linking actions or failures in action that can lead to accidents. As a result, they have dramatically reduced the risk of injury in general anesthesia. It does not mean that errors cannot happen, but the rate of adverse events and serious injury have dropped significantly. Raymond Ownby, MD, professor and director of the Center for Evidence-Based Clinical Practice (CEBCP) University of Miami School of Medicine gives the following example:

"The problem with the individual responsibility approach to understanding medical errors is that it doesn't work. Substantial evidence shows that errors arise in the context of systems that coordinate the behavior of several individuals. Assigning blame to one member of the system is not only unfair, it's dangerous. It ignores the larger context of the error that may be causative, leaving the dangerous system in place so that the same error is likely to occur again to another unlucky clinician.
This problem may be illustrated by an example. In one study of quality improvement in the ICU, investigators found that a substantial number of dosing errors occurred in the context of code situations when tensions were high and lines of responsibility sometimes blurred [15] . The simple intervention of having nurses repeat verbal orders for medications reduced errors significantly, with a consequent reduction in poor medical outcomes. In the individual responsibility approach, the nurse who administered the wrong dose of the medication might have been viewed as the responsible person; in the systems approach, he or she is viewed as one part of the system, comprising physician, other professionals, and the code situation. While it may be gratifying to be able to blame an incorrect dose on one individual, the blaming process wouldn't have addressed the real problem (communication during a stressful event in the ICU).
Similar problems arise when medications are named or packaged in similar ways. Here again, it may be simpler to blame the pharmacist for dispensing the wrong medication, but changing the packaging or name of the easily confused medications may have greater overall impact on errors. Wrong site surgeries can occur when standard procedures to clarify the correct site of surgery aren't in place or aren't followed. Here again, it may be simple to blame the surgeon or nurse for the error, but a consideration of its broader context is more likely to lead to changes in procedures that is more likely to prevent additional errors.
In the systems approach, errors are accepted as inevitable and are used to improve the system rather than punish the individual; they are seen as evidence of a problem with the way care is organized and delivered, rather than as a problem with an individual's character."
                                         (Source: Medical Error Prevention by Raymond Ownby, MD)

The High Costs of Wrong-Site Surgery by Karol DeVito, RN, Risk Management Consultant with MagMutual, identifies risk factors and common system causes of error such as absence of checklists, communication errors, incomplete pre-op assessment, etc. that have been shown to be causes that can be addressed system-wide to prevent the problem.

The good news about system error is that when the patterns and breakdowns are identified, corrections can be developed that can be easily adapted in similar systems. Every hospital does not have to re-invent the wheel. Each may need to adapt, but all do not need to start from scratch. Essentials of corrective programs can be standard procedures in similar environments. For example, medication errors are the leading cause of error in hospitals. Patients sometimes receive medication intended for another patient, or the wrong amount of medication. Medications given in hospitals sometimes interact with medications that the patient is taking prior to admission. Here is the way one hospital identified the breakdown in the system and developed procedures to help reduce errors. Reducing Adverse Drug Events by Improving Reliability: A Newsmaker Interview With Roger Resar, MD

The bad news with system errors, is that because it is NOT connected to one individual, it is easy in the pressure environment of hospitals for no one to take responsibility for creating and implementing procedures that would correct it. Physicians, nurses and hospital administration need to provide leadership in developing and insisting on specific, immediate and consistent implementation of procedures to correct those common systemic errors that they and others have identified.

Another difficulty with system errors, is that often they are not identified outside of larger systems like hospitals. A competent, caring physician's office may have breakdowns in procedure that create a greater risk for error, yet no one identifies it. Each physician needs to challenge themselves and their staff to look at their systems and procedures, identify and change those areas that contribute to failures in follow-up, notification, and other areas. Again, though time is a major factor, as is thinking systemically, there is an ethical obligation to protect patients in every way possible. However, while it takes time to change, ultimately those changes can save time AND protect both patients and physicians.

National physician and nurse associations need to identify those common sources of system error and develop standard procedures for addressing those common problems. Again, because system errors are often common across a group of systems, common difficulties are more easily identified and more standardized corrections can be developed. Another part of the commitment to creating a safe environment for patients, requires that hospital administrators, physicians, nurses and other healthcare professionals implement standards that can negatively impact human performance, including, but not limited to, number of consecutive work hours, working conditions, using checklists instead of relying on memory, etc.

Ethical health partnership requires action to make the healthcare space of relationship a safe one. Errors will happen, but many patterns of errors can be prevented.

Patients and their families as ethical health partners in patient safety:
In ethical health partnership, patients and their families also have responsibilities, including the responsibility for their role in creating patient safety. Here are ways to do that:

• Provide accurate and complete information at all times to physicians, nurses, technicians and administrative personnel.
• We also must assume OUR part of the responsibility to be informed about medications, procedures and to monitor those things whenever possible. We need to ask questions, and make sure we and our loved ones are getting what they need in the amount they need. (Download suggestions on Medication Safety.)
• Patients also must assume more responsibility for being adult partners with their physicians and nurses as a health care team. Part of that adult relationship means that we need to take more responsibility for true informed consent. This means we need to educate ourselves and ask questions about risks, benefits, common complications or injuries, what will be done to prevent that, and what reasonable expectations of possible benefit . . . knowing that there are always risks . . and developing reasonable expectations of the degree of benefit. Patients also need to know inform themselves about risks and benefits of NOT having the procedure or treatment before they make their decision.
• Follow-up on test results instead of assuming no news is good news. Some offices will still tell you that they will call you if there is any problem. Don't accept that. Follow-up is also YOUR responsibility as a patient.
• Get copies of your tests and keep a file at home.
• Following treatment and working with our health care team is essential. If you have concerns, or question the value of the treatment, it is your responsibility to discuss that with our healthcare team and if necessary, to get a second opinion, before you stop or change treatment. If you read something on the Internet or in a magazine that causes us to question our diagnosis or treatment, you have a responsibility to ourselves to discuss it with our physician.
• Every day patients put themselves at risk when they decide to stop medication/treatment or decide to take a reduced amount because of expense.When there is hardship to pay for a prescribed medication or treatment, we must assume our responsibility for informing our physician and exploring possible options. Silence or pride can have very serious consequences.

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Part 2:  When injury occurs -- honest, open and empathic communication--the beginning of repair 
Part 3:  Repair –– compensate and support patient and physician through the process
               Compensation, Deterrence and the Current Medical Malpractice Litigation System, An Ethical Approach to Repair in Medical Injuries
Full article for print (pdf) or (html)

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