The Human Side of Malpractice Speaking The Unspeakable Bryan…



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  • Good Day

The Human Side of Malpractice

  • Speaking The Unspeakable

Bryan…

  • ER Physician, married, two young daughters
  • Missed a minor change on an EKG
  • Sued, lost $2 million, had $1 million insurance
  • Abandoned and blamed by his community and church, began drinking…
  • Sued by his wife for divorce….
  • High Risk (Surgery): 99% with a 90% probability before the age of 45
  • Low Risk (Family Practice): 75% with a continuous pattern throughout a career
  • Gregory Pokrywka Cardiology Review , 33-34 February 2012

The Human Side of Malpractice

  • A Brief History
  • There have been 6 periods of time identified with marked increases in malpractice suits: 1840-1860, 1890-1900, 1920-1930, 1960-1970, 1975-1985 and 2000-today. All periods have been associated with broad change in social and legal concepts of personal liability and social values that merely included medicine

The Human Side of Malpractice

  • A Brief History of Malpractice In America
  • The First “Malpractice Crisis” occurred in 1840
    • From 1840-1860, the number of reported cases rose 950%
    • This explosion of cases was actually part of a larger trend by the courts to allow greater access of the common citizen to the courts

The Human Side of Malpractice

  • A Brief History (continued)
  • Factors in the legal profession that caused an increase in suits included:
    • The Jury System (rather than experts; contrast the Napoleonic Code)
    • Tort Law Liability (rather than Contract Law, without the possibility of limited liability)

The Human Side of Malpractice

  • A Brief History (continued)
  • Legal reforms occurred as a reaction to the strict tort laws of England:
    • Contingency Fees were allowed
    • Rules of causation and who could testify about the standard of care were relaxed
    • Personal liability concepts were expanded to include pain and suffering

The Human Side of Malpractice

  • A Brief History (continued)
  • Medical Innovation and new cures brought with them new risks
  • Medical Standards allowed legal accountability
  • The Advent of Malpractice Insurance in the 1890’s made malpractice suits profitable

The Human Side of Malpractice

  • A Brief History (continued)
  • Malpractice liability laws were initially viewed by the best physicians as a way to drive charlatans and amateur hacks from practice
  • The absence of clear standards of practice resulted in open licensure of any and all, from “the woman down the lane who grew a few herbs to surgeons apprenticed in European hospitals.”

The Human Side of Malpractice

  • A Brief History (continued)
  • Ironically, the development of published medical treatment standards allowed physicians to be sued, since the standards provided the norms against which a bad outcome could be measured
  • “It is better to be without a diploma…to be able to say ‘I make no pretensions, I only gave my neighbor in his suffering what aid I could.’ ”
  • William Wood MD, US Navy Physician 1849
  • Commonly Stated Legal Goals
  • Create Incentives to Reduce Errors and High Risk Behaviors
  • Increase Informed Consent and Achieve Patient Advocacy Goals
  • Commonly Stated Legal Goals
  • Are these goals attained in the current system?

The Human Side of Malpractice

  • Which physicians are sued most often?
  • Highly trained, competent and skilled in either diagnostic or procedural disciplines (rather than chronic care)
  • In practice for more than 5 years
  • Somewhat less charismatic or personable
  • Typically not the “bad apples”
  • To Understand why this is true it is important to look first at the nature of human error

The Human Side of Malpractice

  • Types of Human Activity
  • Skill-Based Activity: Driving an automobile
  • Lucian Leape, JAMA 272:1851 (1994); Harold Kaplan J. Legal Med 24:29 (2003)
  • Rule/Knowledge Based Activity: Solving a new problem, something we have not encountered before, using a principle we have learned elsewhere; If/Then…

The Human Side of Malpractice

  • The Nature of Medical (Human) Error
  • Error in Skill-Based Activity: Inattention or “unavoidable” confusion of information…for example, locking the keys in your car when distracted by traffic or a child’s crying
  • Error in Rule/Knowledge Based Activity: Ignorance/Over-extension: not knowing what we do not know…for example, assuming a 4-way stop at a 2-way stop intersection

The Human Side of Malpractice

  • Expertise in any human endeavor necessarily involves high levels of skill-based knowledge
  • The greater the expertise and experience, the greater the skill-based knowledge/performance
  • As we become expert, knowledge-based errors decrease, and skill-based errors increase …Net Effect: the overall error rate falls and is quite low

The Human Side of Malpractice

  • The Problem: a false sense of certainty
  • Behavioral experiments show that all humans overestimate their knowledge
  • Expertise in a given subject typically (1)decreases errors but also (2)increases overconfidence
  • Even though wrong, we become more confident we are correct, making error analysis/error recognition more difficult

The Human Side of Malpractice

  • Skill Based Behavior relies heavily on Pattern or Context Recognition
  • White Wine colored Red is tasted as Red Wine
  • Chocolate flavored yogurt is tasted as strawberry yogurt when told it is strawberry flavored
  • Context/Pattern: The “Frame” something is in determines how we perceive it

The Human Side of Malpractice

  • The part of our brain that governs conscious recognition is relatively small, and can only process 40-60 bytes/second
  • The entire cognitive processing capacity, including the visual and unconscious is estimated at 11 million bytes/second
  • The cognitive component allowing careful, considered decisions functions <5% of the time, the unconscious functions >95% of the time…

The Human Side of Malpractice

  • Unconscious decision making is based on limited information, cues or signals…
  • Dominates over cognitive decision making when there is too much information, or when the person is tired, stressed or preoccupied, and tends toward impulsive behavior/decisions…
  • Guides our behavior at least 95% of the time…
  • Deborah A Cohen Diabetes (July 2008) 57; 1768-1773

The Human Side of Malpractice

  • The Nature of Medical (Human) Error
  • Most errors are systems problems, rather than knowledge- or skill-based (“Latent Errors”)
  • …”accidents waiting to happen” such as the Titanic which had inadequate lifeboats, no shakedown cruise, and no “lids” on the watertight bulkheads, inadequate radio systems to receive warnings
  • Design Problems…
  • Lucian Leape, JAMA 272:1851 (1994); Harold Kaplan, J. Legal Med 24:29 (2003)

The Human Side of Malpractice

  • When Systems fail and when Pattern/Context Recognition does not alert us to the unusual, undetected errors occur
  • It is only when outcomes differ from expected that we begin to see the problem

The Human Side of Malpractice

  • Therefore:
  • Medical Errors that result in malpractice suits most often occur in situations that cannot be avoided, regardless of the personal concern, medical skill or high level of detailed “error proof” care given by the individual physician
  • Perfection is not possible

The Human Side of Malpractice

  • Negligent Error is not volitional error
  • …There is no intention to harm
  • Remember:

The Human Side of Malpractice

  • Negligent Error usually occurs as a part of normal, ethical moral behavior…and is usually not due to a breach of personal or professional standards

The Human Side of Malpractice

  • Most suits are brought for (1)sudden, (2)unexpected bad outcomes that are (3)perceived of as (4)severe, either in (5)personal or (6)financial terms
  • Why do patients sue?
  • To Err Is Human…
  • Patients begin by asking “what happened?”
  • Become angry/distrustful when they find no answers…
  • …And seek ultimate answers in court to questions such as “why me?” and ultimate solutions such as “never again to another”…and still find no answers
  • Emotional/Personal Patient Goals…

What Do We Know About Bad Outcomes?

  • “Bad Outcomes”
  • “Avoidable Adverse Events”
  • Medical Error
  • Criminal Negligence
  • Homicide

The Human Side of Malpractice

  • “He uses statistics as a drunken man uses a lamppost…more for support than illumination”
  • Andre Lang
  • Do we compensate patients injured by medical errors? The Harvard Medical Practice Study: 1991
  • Disease Associated “Bad Outcomes”
  • Iatrogenic with “fault”
  • Iatrogenic without “fault”
  • Filed Claims
  • 2% of all negligent injuries were filed
  • Only 1/6 of claims filed were for negligent injuries
  • Do we compensate patients injured by medical errors? The Harvard Medical Practice Study: 1991
  • Disease Associated “Bad Outcomes”
  • Iatrogenic with “fault”
  • Filed Claims
  • Iatrogenic without “fault”
  • “Legitimate” Focus of Litigation
  • The Harvard Medical Practice Study: 1991
  • 21 of the 46 claims were settled in the patient’s favor over 10 years:
  • 10 (of 24) were for disease-related, non-negligent outcomes and averaged $98,700…
  • 6 (of 13) were for iatrogenic, non-negligent outcomes and averaged $98,000…
  • 5 (of 9) were for iatrogenic, negligent outcomes and averaged $62, 000

Does Litigation Improve Quality of Care?

  • The adversarial system virtually guarantees the medical errors are not discussed or examined to any significant degree…with the traditional legal advice of “deny and defend”
  • We do not even have a good estimate of how much error exists (see Weingart and Iezzoni, JAMA 290:1917 (October 8, 2003)
  • To Err is Human…
  • Current Malpractice Litigation
  • Is seriously and fatally flawed…
  • It fails to achieve the social goals of (1) Compensating injured patients; (2)Creating incentives to reduce medical errors and resulting injury; (3) Interferes with quality medical care by decreasing open dialogue between the physician and patient, and by increasing cost and decreasing access

Suggested Reforms Include…

  • From Physician Organizations:
  • Mediation rather than litigation
  • Limits on Pain and Suffering awards
  • Abolish or limit Joint and Several Liability
  • Certification of a case before filed (expert opinion)
  • ABA Journal
  • October 2006
  • Plaintiff Bar: “My income has dropped to probably 10 percent of what I made in 2003.”
  • Defense Bar: Tort reforms in Texas “…hit the defense side hardest first.”

Other Suggested Reforms Include Efforts to Reduce Medical Error…

  • Greater protection of peer review from discovery
  • Protection of reported errors from discovery
  • Non-punitive and non-judgmental reporting of errors and the information gleaned from such studies
  • View errors as “pearls in the rough,” as part of the development of systems to reduce error
  • Adopt a pro-active attitude toward error

The Personal Side of Malpractice

  • The Problem…
  • Few of these solutions solve the greater issue of the emotional injuries suffered by patients and physicians
  • Until they do, malpractice will impact the actual practice of medicine, increasing cost and interfering with the physician- patient relationship
  • Physicians Liability Insurance Company of Oklahoma (PLICO) has been a pioneer in this movement…
  • Oklahoma was the first state to have law allowing a physician to say “I’m sorry this happened” without liability
  • Physicians are personally threatened…
  • Our current legal malpractice system must assign blame and shame…
  • Who did what terrible thing wrong?

To Reform the System to one that recognizes the emotional injuries…

  • Possible reforms include binding arbitration or mediation …based on “avoidable adverse events” rather than negligence…
  • “No fault” reimbursements, modeled after Workmen’s Compensation, to reimburse “avoidable medical injuries”…
  • A Proposal for Reform…
  • A Theory of Law, the “Therapeutic Jurisprudence Approach”
  • Early Intervention Mediation1
  • Arbitration
  • 1Kraman and Hamm “Risk Management: Extreme Honesty May Be the Best Policy” Annals of Internal Medicine 131:963 (1999); Whitman, Park and Hardin “How Do Patients Want Physicians to Handle Mistakes?” Arch Internal Medicine 156:2565 (1996)
  • A Proposal for Reform…
  • “Therapeutic Jurisprudence Approach”
  • Originally defined by David Wexler: “People should be better off after their contact with the law than they were before.”1
  • This includes psychological and physical well being
  • However…
  • The psychological brutality of our current system damages caregivers and does not answer any ultimate questions… for the patient or the physician…

The Personal Side of Malpractice

  • Take a 10 minute break…
  • The psychological brutality of our current system damages caregivers and does not answer any ultimate questions… for the patient or the physician…

The Human Side of Malpractice

  • Common Misconceptions by Physicians
  • Engage in retrospective “second guessing” ie a bad result always means something better could have and should have been done
  • Believe that local standards or customs determine both the professional and legal standard of care..and there is really one best way to treat a problem
  • Believe that it is possible to practice error-free medicine, and only “bad physicians” commit errors

The Human Side of Malpractice

  • Common Misconceptions (continued)
  • All of the information needed to do the right thing was available before the error was made
  • If the error is not discussed, it will go away
  • If the error is discussed, my family, patients and colleagues will think less of me
  • This is the only serious error (or maybe the second one) I have ever made, and it will never happen again if I just pay better attention to what I am doing

The Human Side of Malpractice

  • Common Misconceptions (continued)
  • The physician is responsible for everything that happens, good or bad (“Captain of the Ship”)
  • “As I think about it, there’s this element of control and responsibility that’s infinite.”Christensen, ibid at 426
  • Perfection is Possible
  • “Our profession is difficult enough without our having to wear the yoke of perfection.” David Hilfiker, NEJM 310:118 (1984)

The Human Side of Malpractice

  • The physician who cares for a patient that has an unexpected bad outcome feels:
  • Isolation…from friends, family and colleagues
  • Deep Remorse and Grieving
  • Guilt (Moral Culpability)
  • Loss of Self-Esteem

The Human Side of Malpractice

  • …Whether or not he or she is sued
  • …Whether the “error” was in fact substandard care, preventable or something someone (anyone?) else considers error
  • JF Christensen, et al, J Gen Internal Med 7:424 (1992)

The Human Side of Malpractice

  • Emotional and Behavioral Changes include:
  • Self-Doubt in all areas of life
  • Change in scope of practice and paranoid behavior
  • Depression and anxiety
  • Alcohol and drug abuse
  • Divorce and relationship problems
  • Sexual dysfunction
  • Suicide

The Human Side of Malpractice

  • “We see the horror of our own mistakes, yet we are given no permission to deal with the enormous emotional impact; instead, we are forced to continue the routine of repeatedly making decisions, any one of which could lead us back into the same pit.”
  • David Hilfiker, “Facing Our Mistakes” NEJM 310:118 (1984)

The Human Side of Malpractice

  • The profession seems to have no place for its mistakes. Physicians are not trained or prepared to deal with mistakes. It is virtually impossible to get an honest opinion from consultants and other physicians.
  • Society has no place for the physician who commits an error
  • Errors are rarely admitted or discussed
  • Personal absolution, restitution or reconciliation with the patient is impossible

The Human Side of Malpractice

  • What Can Be Done?
    • First, realize the nature of most malpractice suits, and be less judgmental of ourselves and others
    • Develop and utilize effective physician counseling services
    • Support a colleague who is sued

Medical Malpractice Ministry

  • 3M …CMDA
  • Trained Physicians
  • Sued at least once and look at the experience as a growing experience
  • Calls to CMDA matched with physicians in other states
  • State Medical Association Committees

Depression…

  • Often begins in Medical School and Residency…
  • Malpractice triggers acute worsening
  • www.physiciandepression.com
  • Spiritual Strength and Support are consistently recognized deterrents to suicide…

Physician, Heal Thyself…

  • There is no substitute for personal moral and ethical development…
  • No reforms, blame shifting or intellectual discussion will prepare you the moment when you make your first serious error that harms another…
  • Or when you are sued for something you genuinely feel you did not do…

The Human Side of Malpractice

  • “It is an old and ironic habit of human beings to run faster when we have lost our way.” Rollo May
  • The reason for our suffering may have a lot or a little to do with us personally…
  • But all suffering is both hard and helpful “He jests at scars who never felt a wound” Shakespeare
  • The Human Side of Malpractice
  • Faith like Job’s cannot be shaken because it is the result of having been shaken” Rabbi Abraham Heschel
  • “Never pay back evil to anyone. Respect what is right in the sight of all men. So far as it depends on you, be at peace with all men. Never take your own revenge …vengeance is mine, I will repay says the Lord. Do not be overcome by evil, but overcome evil with good.” (Romans 12:17-21)

The Human Side of Malpractice

  • Always Seek What Is Ethically and Morally Right For Our Patients, Our Colleagues and Ourselves…The Highest and Best We Can Give

The Human Side of Malpractice

  • Thank You
  • Thank You
  • The Human Side of Malpractice
  • Good Rapport Takes Time, the opposite of managed care
  • Recognize the Essential Role of Forgiveness…
  • Alexander Pope (1688-1744) An Essay on Criticism
  • “To err is human, but to really foul things up takes a computer” Farmers’ Almanac “Capsules of Wisdom” 1978 (Anon)
  • “The computer is down. I hope its down with something serious.” San Francisco Chronicle 1984
  • A Proposal for Reform…
  • Legal Theory:
  • Therapeutic Jurisprudence…has as a central value that “[p]eople should be better off [physical and psychological] after their contact with the law than they were before”1
  • Early Intervention Mediation… restoration (correction of any consequences), closure (what happened), justice (accountability without liability) and future safety (non-repetition of any error)2
  • 1 David Wexler (July 2000); 2 Edward Dauer J Legal Med 24:37 (2003)


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