One of the contentious issues in the health care reform debate surrounds malpractice suits, how they are driving up health care costs, and how to fix the problem. The issues:
Lawyer: Very high premiums for insurance carried by doctors
Nurse:Which, in some cases, forces MD’s out of practice or to cheaper areas or specialties, as you can see looking for an OB in Pennsylvania!
Lawyer: Also, “defensive medicine” – unnecessary tests and procedures performed for fear of being sued if something is missed.
Nurse: Which is part of the reason healthcare costs have spiralled so seriously out of control– see Gawande’s article on this in a recent New Yorker, and a NYT article by Pauline Chen a few weeks ago about the demise of “hands-on” doctoring.
Lawyer: All these suits also lead to limited discussion of previous mistakes, which prevents improvement.
Nurse: They sure do! Hospitals still do hold closed-door “morbidity and mortality”, or “M&M,” meetings for medical staff, where issues, cases, and yes, mistakes, are to be discussed candidly– but in some cases, hospital staff are instructed not to say “I’m sorry” because it could be construed as an admission of fault!
Lawyer: It’s so hard to use the law to change the culture. But “I’m sorry” has to be taken back to mean what it says: sympathy, not responsibility. (Take it from the Italians: mi dispiace, literally, it displeases me, vs. mi scusi, excuse me, my bad.) And we still definitely need a system to preserve (and improve!) patient safety.
Capping jury awards in malpractice suits (favored by doctors and republicans)
Lawyer: Yes, this reduces the costs born by doctors and can protect them from being punished outlandishly for mistakes, but it also restricts patients’ legal rights.
Nurse: It could be more fair if specific awards– like for pain and suffering– are capped simply because different juries can make vastly different awards for something like this that really isn’t quantifiable. Part of the argument in favor of capping is that it will diminish frivilous lawsuits– but who knows?
Limiting lawsuits by providing protection for doctors who follow established guidelines
Lawyer: An interesting plan, especially if the guidelines are written taking into account evidence-based practices. Doctors who followed established guidelines could not be sued for their actions, but doctors who made legitimate errors or who disregarded the guidelines (or accidentally violated them) could be sued.
Nurse: This is interesting, but pretty sticky! It seems like a slightly more codified version of what we already have. There are established guidelines– standards of care– and the doctor/patient relationship constitutes a duty. Failing to follow standards of care represents a breech of duty.
Lawyer: But that’s not the only way doctors get sued. Again, we need a cultural shift here — and a change like this would have to go with a public education campaign to that people would realize that just because they didn’t get a good outcome doesn’t mean their doctor was in the wrong.
Alternative programs, including that outlined in the MEDiC bill (discussed in NEJM here), a Hillary Clinton and pre-Presidential Obama-supported program that, if it had succeeded, would have provided for empathy, open discussion and negotiation of fair compensation as a provider’s response to a medical error .
Lawyer: I like these because they’re not limiting lawsuits, they’re aiming to reduce the situations that cause them to begin with. This kind of program can and should also focus on facilitating doctor/patient communication throughout the relationship – patients are much less likely to sue if they understand all along what they are being offered, and what choices they and their doctors are making.
Nurse: True dat, double true. I have cared for numerous patients who had no idea that they had choices. A woman I cared for recently asked me fearfully one night if they would be whisking her off for open heart surgery in the morning. She had not even spoken with a surgeon yet– she was under the impression that it was his choice, and she was powerless to make her own decisions. Although even now, patients are to have the options explained along with the risks and benefits, doctors often don’t see it this way– they thrust a form in your face and say, “get consent for this.” The doctor has a plan he wants to carry out, and the patient’s opinion is only an obstacle. (This isn’t everyone, but. . . it’s widespread!)
Lawyer: I totally understand democrats’ opposition to capping jury awards – who’s to say from where we stand now what might or might not be appropriate for some terrible occurrence in the future? This is why we have a court system – so that judges and juries can decide what’s appropriate on a case-by-case basis. It also does little to improve patient safety, since doctors’ risk is decreased for any and all decisions, not just reasonable ones.
Nurse: I am not sure I agree with the opposition to capping. I think it could make things a little more fair– it’s the amorphous things like emotional distress, or suffering, that may be awarded outlandish sums in some cases but not in others, and it’s not that they shouldn’t be compensated, but it leaves a lot of room for a convincing witness to pull at some heartstrings when it’s not necessarily legally the right thing to do.
Lawyer: I’m not sure what you mean by “legally the right thing”. Legally, the jury gets to decide. And large awards like that aren’t wrong legally. What’s legal isn’t always fair, etc, etc… so a system that puts the decision into the hands of citizens can be really frustrating in situations like this, but that’s how our court system is built, and for a good reason.
What I don’t understand is people’s (mostly democrats’) providing protection to doctors who follow established guidelines. It looks to me like that would eliminate suits based on the merely unfortunate (a doctor made a reasonable judgment call, which leads to a patients suffering harm that theoretically might have been preventable but not within reasonable standards) while still permitting real errors that should’ve been prevented to be brought to court. In other words, it separates judgment calls from real medical errors. Doctors are them free to order appropriate tests and procedures, rather than batteries of tests that are exhaustive as possible with dubious potential benefits.
Nurse: This isn’t really a big change from the current system. Of course this doesn’t mean people don’t sue and win when a reasonably prudent doctor treated them without making a grave error– they do. But a lot of these suits are thrown out. (Incidentally, most settle out of court, because it’s cheaper and less embarassing. Plans that address the incentive to sue in the first place could help prevent this.) To write guidelines incorporating evidence-based practice would hard, too– either it would be a constant, broad effort to keep legal codes up to date, or it would require doctors to have an individual broad base of current research across the board– which could include other specialties, obscure studies. . . a plan like this would need to be flexible and very carefully crafted if it will be helpful.
Lawyer: I’ve never bought “it’s hard” as a reason not to do something. I think there are many, many variations on this plan, some of which would help and some of which wouldn’t, but the idea of saying “These are clear boundaries, I am clearly inside them” could save a lot of headaches. As it is now, the boundaries don’t seem that clear? Maybe? To me? I’m thinking of the octuplets case where we discussed standards of care.
Nurse: The problem is, medicine is in large part judgement. A lot of things that actually are medical errors are judgement calls. Clinical decision making is at the heart of medicine, and there is really not a clear line between judgement call and error. Aside from the obvious (complete failure to recognize obvious symptoms, dismissing of ominous complaints, cutting off the wrong leg–) where can we put this line?
Lawyer: Oh, why can’t people see that they’re hiring doctors to give it their best shot, not to fix everything with a 100% guarantee? You’re not taking your car to the mechanic here, people. I just think that having clearer guidelines — or at least more widely understood ones — would be a good way to begin drawing that line.
Nurse: I think people have a tendancy to thing about malpractice in terms of individual sad stories– and that can actually be kind of destructive to reforming a system where most of the cases are very different from the high-profile ones.
Lawyer: Note: I have referred almost entirely to doctors here – and so has the majority of the debate. Do nurses get sued for malpractice? How does that work? What are the separate issues there?
Nurse: Nurses do get sued for malpractice– but very rarely compared to doctors. Usually we could be implicated in a suit, but it’s very easy to show, if you document your care well, that you have followed the standard of care. Nurses are also frequently protected by their employers– we work for the hospital, or the practice, or whatever– where as doctors have a different arrangement. Also, I have personal malpractice insurance (the hospital covers me while I am on duty there, but not if I volunteer–) and a year cost me. . . . drumroll please. . . $59. That’s not a typo.