by Dawn J. Lipthrott

Part 3: Repair –– compensate and support patient and physician through the process

Compensation, Deterrence and the Current Medical Malpractice Litigation System:
One of the alleged purposes of litigation is to deter the 'responsible party' from committing the 'offense' again. Because most injuries are not the result of negligence or malpractice, even the majority of those actually filed in claims, physicians feel like they, too, are victims of the system. Unfortunately, as often happens in relationship, the positive INTENT of something can have a negative EFFECT. When that happens, instead of insisting on how right we are in intention and sticking stubbornly to our position, we have to take in the reality of the other . . . what happens to the person on the receiving end of our behavior. That is the nature of relationship. It is not just about one person or group. It considers the wellbeing of both. The current medical malpractice litigation system, while having very positive intents, has had disastrous effects on injured patients, non-injured patients, and on physicians, nurses and other healthcare professionals.

Instead of deterring error, the current system has deterred physicians from providing needed and highly skilled services because of fear of risk, or because of the increase in cost of malpractice premiums if they perform those services. (See Patient Safety - Just Compensation and Medical Liability Reform, by Randall R. Bovbjerg, principal research associate in the Health Policy Center of the Urban Institute, and Brian Raymond, a senior policy consultant with the Kaiser Permanente Institute for Health Policy. Sections IV and V discuss patient safety and shortcomings in deterrence, January 2003)

I, one middle-class ordinary person, know one OB-GYN who retired early because he was fed up with excessive paperwork, decreasing reimbursement, and mostly the threat of litigation. I know another OB-GYN who closed her practice because she could not afford to keep it open with the enormous yearly increases in malpractice premiums here in Florida, combined with steadily decreasing reimbursement from insurance. I know an orthopedic surgeon who stopped doing surgery because of the malpractice system combined with decreasing reimbursement. Taking the risk on a daily basis wasn't worth it, emotionally or economically. I know a cardiologist who has stopped doing any surgical procedures for the same reason. So the intent of deterrence has increasingly become the deterrence of good physicians and the restriction of vital care.

Patients are damaged by the fact that many who have been injured and should be compensated for medical expenses that are not covered and for economic loss when indicated, do not have their cases accepted because they are not determined to be strong enough or lucrative enough. They feel betrayed by the system, and by their physicians. Other patients are damaged when they simply want help for hardship that occurs as a direct result of the injury, but do not want to sue their physician because they believe the physician is competent and the injury was not due to negligence. They find themselves having to step into an adversarial position when they just want help. Injured patients who do file are damaged by the lengthy, contentious nature of the process, and the fact that any award is delayed for years from the time of the injury. Patients are damaged by the reactive and blaming emotional climate fostered by the process. Everyone is damaged when the fear of litigation prevents open, honest evaluation of errors and their causes. Everyone is damaged when physicians order tests and procedures based simply on the fear that if they cannot document that they ordered it, it will be used against them. (See the Fear of Litigation Study) Everyone is damaged when the costs of malpractice threats and litigation cause good physicians to re-locate, close their practices or stop performing procedures that carry more risk. One need only look at the number of obstetricians in their own community who have stopped delivering babies. Patients are damaged even in those few instances where there are physicians who repeatedly perform at substandard levels, have been found guilty of malpractice several times, and yet do not receive helpful intervention or needed discipline by state regulatory boards.

Physicians are damaged when they are unjustly accused. They are damaged when an error, or even a negative outcome or adverse even beyond their control, is turned into an attempt to prove they are incompetent. They are damaged by the fact that to receive compensation, patients must allege that they provided substandard care, when most physicians pride themselves on their care and their competence. Physicians are damaged by a sense of betrayal and extreme stress during litigation that drags on for years. Physicians are damaged when they work with the threat of litigation hanging over their heads at every moment. They are damaged when malpractice premiums increase at rates that are impossible to cover and the practices are jeopardized. They and patients are damaged when they stop providing important procedures to help patients because of the high risk and potential for claims. They are damaged when they cannot obtain insurance because they practice in a high risk specialty or simply have been named in a suit, even if they are later dropped from the case.

Compensation:
As stated above, many injured patients do not and cannot receive compensation under the current system of adversarial litigation. Others are over-compensated for less serious injuries.The administrative costs of the tort system can cost up to 60% instead of the 5%-30% of other compensation programs liked Workman's Compensation or Social Security Disability. (Sources: Lawthers AG, Brennan TA, Laird NM, Hebert LE, Peterson LM, et al. Relation between malpractice claims and adverse events due to negligence. Results of the Harvard Medical Practice Study III. N Engl J Med. 1991; 325:245-51. [PMID: 2057025]; Weiler PC, Hiatt HH, Newhouse JP, Johnson WG, Brennan TA, Leape LL. A Measure of Malpractice: Medical Injury, Malpractice Litigation, and Patient Compensation. Cambridge, MA: Harvard Univ Pr; 1993. )
All of us pay for a very inefficient system.

An Ethical Approach to Repair in Medical Injuries:
When I attempted to find alternatives to litigation for medical injury, I found several proposals.

1. One is for medical courts which would take decisions out of the hands of juries and create a kind of administrative hearing with a panel of medical experts and specially trained judges to better determine whether negligence has occurred. While that may be fairer i some instances to physicians, it does not solve the problem for patients who are injured and cannot obtain compensation. It also does not guarantee fairness to physicians. Physicians are often more judgmental about a colleague's decisions than a jury would be. This is especially true when they know the outcome of the treating physician's care has resulted in an injury. It seems to replace one form of second-guessing with another without solving some of the core issues already mentioned.
Another variation would be a court of specially healthcare trained judges who could hire neutral experts instead of the current 'expert-for-hire' approach. This would be a modification of the current system.

2. Another option presented is arbitration / mediation. While this is better than going straight to trial, can be quicker and less contentious, it still does not address some of the core defects of the tort system. It is still based on individual blame and focused on negligence. I do think it does offer more opportunity for patients and physicians to communicate more effectively about what happened . . . if you have a skilled mediator. Variations of this are early-offer approaches and statewide administrative resolution.

3. A third way is some variation of an administrative compensation system. When I read brief descriptions, I did not think this would address concerns either, but as I've read more, this one makes the most sense to me. One approach to a modified 'no fault' involves 'early offers' by the physician or other person(s) involved. An administrative board system would allow institutional healthcare providers to offer reasonable compensation to injured patients. A good example of a detailed "Early Offer" approach can be found in A Proposed Remedy for Medical Malpractice Miseries by Jeffrey O'Connell and Samuel H. McCoy, II, Professors of Law at the University of Virginia. This also seems to be what the VA system uses, as mentioned above.

The second administrative compensation system is what is often referred to as 'no fault'.

No Fault Approach:
In summary no-fault systems have the following benefits:

* Injured patients have only to show that their disability was caused by the way they were treated, rather than by the actual disease process for which they were being treated. In Sweden, one of the requirement is that the injury was 'avoidable'.Therefore, it improves access of injured patients to economic help for medical and other loss related to the injury. In one study it was estimated that it make 67% more injuries available for compensation in Utah and 95% more in Colorado and yet could be compensated within budgets that are similar to or less than the costs of the current tort system. (Studdert and Brennan, No Fault Compensation & Error Prevention)
* Removes any need to prove negligence.
* Removes the contentious adversarial climate of attempts at compensation.
* Creates a climate of openness to identify, discuss and change errors, including near misses, and ways to improve systems for patient safety without fear of litigation for anything said. Provides more transparency on patient safety issues.Studdert and Brennan also point out that the number of claims brought would be larger than incidents reported currently and would lead to root cause analysis of more errors. The responsibility for that investigation would belong to the institution where injury occurred. The results would be forwarded to a central state based agency that would monitor patterns and provide data for patient safety programs.
* Reduces the frequency of overpayment for less serious injuries.
* Significantly reduces administrative costs of running the system and obtaining relief.
There is precedent for no-fault approaches in auto accidents, worker injury. Limited no-fault approaches have been used in medicine related to birth injury. There are also no-fault systems in Sweden and New Zealand.

How It Might Work:
In Sweden one of the key elements is that the injury resulted from treatment (not the disease itself) and it was avoidable. There is no need to prove negligence or substandard care. When the injury is determined to meet the criteria, claims are paid in a uniform way by using a fixed compensation schedule which includes both economic and noneconomic damage components. In Sweden, the injury has to be serious enough to have either resulted in 10 or more days of hospitalization or more than 30 sick days. This helps eliminate the minor injuries that would make no-fault approaches cost prohibitive if all were paid.

In trial projects in the United States, they have channeled providers and hospital into one larger entity which created more 'enterprise liability' and also provided a more consistent experience rating (which puts some financial pressure on employers to pursue safety in the whole system). Those with higher experience ratings, pay higher premiums. According to Studdert and Brennan that would mean that a hospital would pay more in a given year if there was a higher occurrence of injuries and less if quality improvement programs reduced the incidence of injuries. Since most errors are system based, that would be a more sensible approach than the current tort system to blame the individual and claim negligence.

The proponents and researchers of no-fault approaches suggest a step by step approach to reform, rather than a sudden system-wide change. Some of the considerations are outlined in the Studdert/ Brennan article listed below. Some issues that would need to be addressed are the role of existing malpractice insurance carriers, informed consent for patients who participate in a no-fault system and realistic choice alternatives, rights of appeal, etc.. There would also be enormous opposition by those with vested interest in the current tort system. Hospitals and systems who become part of demonstration projects could outpace their competitors by offering patients the chance to both opt out of the current system while having access to fairer system of compensation, and a deeper commitment and willingness to take action to address safety issues in the system.
Some trials have limited the no-fault approach to certain specialties. When used in combination with channeling approaches of hospitals and physicians, can provide even greater incentive to do everything possible to promote patient safety.

Explanations of the process, benefits, costs, and more can be found in the following reports:
Patient Safety and Medical Malpractice: A Case Study Troyen A. Brennan, MD, JD, MPH and Michelle M. Mello, JD, PhD, MPhil, 19 August 2003 | Volume 139 Issue 4 | Pages 267-273    Annals of Internal Medicine
Malpractice Liability and Medical Error Prevention: Strange Bedfellows? Paper Prepared for the Council on Health Economics and Policy Conference on Medical Malpractice Practice in Crisis: Health Policy Options March 2003 Michelle M. Mello, J.D., Ph.D., M.Phil. Article is linked on Kaiser's site at: http://www.kaisernetwork.org/health_cast/hcast_index.cfm?display=detail&hc=796

Policies to Foster Patient Safety Michelle M. Mello, J.D., Ph.D., M.Phil. Assistant Professor of Health Policy and Law Department of Health Policy and Management Harvard School of Public Health

Can the United States Afford a "No-Fault" System of Compensation for Medical Injury?
David M. Studdert, Eric J. Thomas, Brett I. W. Zbar, Joseph P. Newhouse, Paul C. Weiler, Jonathan Bayuk and Troyen A. Brennan.† Cited: 60 Law & Contemp. Probs. 1 (Spring 1997)

No-Fault Compensation for Medical Injuries: The Prospect for Error Prevention. Studdert, DM and Brennan, TA, JAMA July 11-2001, Vol 286, No., 2.

The biggest opposition and obstacle to the plan is the lobby of trial attorneys since it essentially cuts medical malpractice claims out of the system. In one attempt in Utah and Colorado to implement a trial project, the primary opposition was led by attorneys. Malpractice insurance companies were also not interested in supporting the reform. (Source: Mello, Michelle M. and Troyen A. Brennan (2002), "Deterrence of Medical Errors: Theory and Evidence for Malpractice Reform," Texas Law Review 80: 1595-637.)

We must not let those obstacles prevent us from working to implement this and other solutions. It makes sense to start on a small-scale basis to determine effectiveness. The well-being of patients, physicians, through more ethical health partnership, even in the most difficult circumstances, must become our priority.

Support of Patient and Physician or Nurse when Injury Occurs:
Physicians and hospitals need to make every effort to provide support for the patient who is injured. That means helping them through the medical process and through subsequent interactions with you in an ethical and compassionate manner. Whether that involves on-going or subsequent care, offering referrals, being available for questions related to the injury, the recovery process, living with the disability, or even informing about changes in procedures that have come about as a result of their injury. Patients need information and caring from beginning to end. They need to know that they matter as human beings and that what happened to them matters.

As stated, injuries to patients can have a profound effect on the physician(s) or nurse(s) most directly involved. These professionals also need systems of support from colleagues, the hospital, and sometimes availability of professional support. In talking with physicians who had been sued, researchers found that the isolation and lack of expressed support by colleagues was a very painful part of the process.

Sorry Works: A Similar Alternative:
Sorry Works! is an Illinois-based coalition just starting a major push for change. The group was started by Doug Wojcieszak, a public relations professional after working on malpractice issues in his work and after losing his brother because of a medical error. He and the family sued to try to find out what happened and trying to ensure it would not happen again. They describe the the main elements of the program as:
a) Every adverse event is reviewed by hospitals and physicians.
b) Physicians and hospital administrators meet with patients and families to explain what happened.
c) If a mistake was made, the doctor and hospital apologize and offer the family fair compensation if investigation reveals there was medical error.
d) They also explain how the problem that caused the error will be corrected.
For more information see Preventing Lawsuits: Coalition Pushes Apologies and Cash Up-front.

4. Improve the system of care based on what is learned from the injury

When injury occurs and the process of repair is accomplished through compassionate communication, speedy compensation, support of physician and patient through the process, there is one more very important step which brings the process full circle -- using the injury to change the system to prevent future injuries of others. Not only does this improve patient safety for all patients, it also helps give meaning to a painful experience for the patient, and sometimes for the physicians or nurses involved in the care of the patient.

Specialties probably already know many of the most common injuries for their particular area. Identifying the most common and creating action plans for reducing those areas are vital and are a proactive way to improve safety, care of the patient, and self-care. For example, if injury to the common bile duct is one of the most common injuries, why is it not a standard of care to use cholangiograms to identify not only stones in the duct, but the structure of the biliary tree to help prevent injury? Or perhaps, there is another way in teaching surgeons the technique of laparoscopic surgery how to reduce risk of that injury.

The Future We Co-create:
It is time for something new, something that transcends what we have instead of simply placing bandaids on it. It is time for fairness and justice for patients and for physicians, nurses and other healthcare professionals. It is time to bring mutual respect, compassion and valuing of all partners back into our relationships and interactions with one another -- even in the most difficult of circumstances. It is time for all of us to act with integrity. We are all responsible for making it so.

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Part 1:  Preventing Injury -- system vs. individual error, patients as partners in safety
Part 2:  When injury occurs -- honest, open and empathic communication--the beginning of repair 
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