Good Day

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Good Day
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The Human Side of Malpractice

• Speaking The Unspeakable

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(No Transcript)
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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.

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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
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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
Today A backlash against managed care and all
things authoritarian
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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

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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)

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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

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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 1890s
  made malpractice suits profitable

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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.
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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 diplomato 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
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Commonly Stated Legal Goals

• Compensate Injured Patients

• Create Incentives to Reduce Errors and High Risk
  Behaviors

• Increase Informed Consent and Achieve Patient
  Advocacy Goals

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Commonly Stated Legal Goals

• Are these goals attained in the current system?

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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

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• To Understand why this is true it is important to
  look first at the nature of human error

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The Human Side of Malpractice
Types of Human Activity

• Skill-Based Activity Driving an automobile

• Rule/Knowledge Based Activity Solving a new
  problem, something we have not encountered
  before, using a principle we have learned
  elsewhere If/Then

Lucian Leape, JAMA 2721851 (1994) Harold Kaplan
J. Legal Med 2429 (2003)
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The Human Side of Malpractice
The Nature of Medical (Human) Error

• Error in Skill-Based Activity Inattention or
  unavoidable confusion of informationfor
  example, locking the keys in your car when
  distracted by traffic or a childs crying

• Error in Rule/Knowledge Based Activity
  Ignorance/Over-extension not knowing what we do
  not knowfor example, assuming a 4-way stop at a
  2-way stop intersection

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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
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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
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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
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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 lt5 of the time,
  the unconscious functions gt95 of the time

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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
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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 2721851 (1994) Harold
Kaplan, J. Legal Med 2429 (2003)
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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

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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

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The Human Side of Malpractice
Remember
Negligent Error is not volitional error There is
no intention to harm
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The Human Side of Malpractice
Negligent Error usually occurs as a part of
normal, ethical moral behaviorand is usually not
due to a breach of personal or professional
standards
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The Human Side of Malpractice
Why do patients sue?
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
Sense of betrayal, seeking meaning and
significance for their suffering
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To Err Is Human
Emotional/Personal Patient Goals

• 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 anotherand still find no answers

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What Do We Know About Bad Outcomes?

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

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The Human Side of Malpractice

• He uses statistics as a drunken man uses a
  lamppostmore for support than illumination

Andre Lang
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Do we compensate patients injured by medical
errors? The Harvard Medical Practice Study 1991
Disease Associated Bad Outcomes

• 2 of all negligent injuries were filed

• Only 1/6 of claims filed were for negligent
  injuries

Iatrogenic without fault
Iatrogenic with fault
Filed Claims
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Do we compensate patients injured by medical
errors? The Harvard Medical Practice Study 1991
Disease Associated Bad Outcomes
Legitimate Focus of Litigation
Iatrogenic without fault
Iatrogenic with fault
Filed Claims
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The Harvard Medical Practice Study 1991
21 of the 46 claims were settled in the patients
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

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Does Litigation Improve Quality of Care?
The adversarial system virtually guarantees the
medical errors are not discussed or examined to
any significant degreewith 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
2901917 (October 8, 2003)
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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

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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)

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ABA Journal October 2006
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Plaintiff Bar My income has dropped to probably
10 percent of what I made in 2003.
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Defense Bar Tort reforms in Texas hit the
defense side hardest first.
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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

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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

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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 Im sorry this happened
without liability
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Physicians are personally threatened
Our current legal malpractice system must assign
blame and shame
Who did what terrible thing wrong?
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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
Workmens Compensation, to reimburse avoidable
medical injuries
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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 131963 (1999) Whitman, Park
and Hardin How Do Patients Want Physicians to
Handle Mistakes? Arch Internal Medicine 1562565
(1996)
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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
1Edward Dauer Journal of Legal Medicine 2437ff
(March 2003)
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However
The psychological brutality of our current system
damages caregivers and does not answer any
ultimate questions for the patient or the
physician
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The Personal Side of Malpractice

• Take a 10 minute break

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The psychological brutality of our current system
damages caregivers and does not answer any
ultimate questions for the patient or the
physician
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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

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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

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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, theres this element of
  control and responsibility thats
  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 310118 (1984)

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The Human Side of Malpractice

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

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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 7424
(1992)
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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

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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 310118 (1984)
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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

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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

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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
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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

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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

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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

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The Human Side of Malpractice

• Faith like Jobs 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 1217-21)

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The Human Side of Malpractice

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

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The Human Side of Malpractice
Thank You
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• Thank You

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The Human Side of Malpractice
Good Rapport Takes Time, the opposite of managed
care
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Recognize the Essential Role of Forgiveness
To Err is Human To Forgive, Divine.
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
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A Proposal for Reform
Legal Theory

• Therapeutic Jurisprudencehas as a central value
  that people should be better off physical and
  psychological after their contact with the law
  than they were before1

• 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 2437 (2003)