June 1998 Bulletin

Malpractice laws focus on ‘hangings’

More constructive system would provide feedback to prevent future mishaps.

By Steven Alan Silver, MD

Worry about medical malpractice continues to beset the hearts and minds of orthopaedists in the United States. Malpractice "reform"-largely the limitation of awards-has been proposed, debated and shelved. Lost among the sound and the fury is the fact that the original intent of malpractice laws was to compensate those injured by medical malpractice, to regulate the medical profession and to provide feedback in order to prevent mishaps from repeating themselves.

Malpractice reform is the major lost opportunity of the recent failure of health insurance reform, because the window was briefly open in which we might have turned our attention from malpractice as a financial threat and concentrated instead on its potential as an instrument of quality improvement. Other countries have more constructive, and more successful, approaches to the problem, and we have bypassed our opportunity to learn from these systems to implement both malpractice reform and quality.

The Japanese long ago recognized the value of errors, and its utility as a tool for improving this products. In Japanese industry, errors are viewed as gems, because they provide opportunities for improvement. We ought to have learned, from the decades in which Toyotas, Hondas, and Sonys have gained hegemony in our markets, about the value of industrial quality. The medical industry is not so unlike other production processes that we cannot learn from, and apply some of the same fundamental principles to the way in which we practice.

Japan's industrial chicken soup is called kaizen, a word denoting quality that arises from bad systems, as opposed to bad apples. An underlying principle of kaizen is that for quality to flourish, managers must create an environment in which individuals are eager to identify problems and deficiencies, so that the workforce can join together to correct them.

In contrast, the admission of medical error in our current environment is a professional and financial death wish. We have too thoroughly and too literally accepted the premise that "we bury our errors." That which, in the realm of quality improvement, would be esteemed as a precious opportunity to learn something, in our system is repressed more often than it is shared. Information which could help physicians, hospitals, states, and insurers to avoid the endless repetition of avoidable errors is assiduously hidden.

We ignore an abundance of information concerning the complications of operative procedures. Even worse, we do not have an accurate perception of the rates of complications of procedures and do not accurately convey them to our patients. We simply do not have statistically significant samples with respect to the complications of operative procedures either as individuals or as institutions.

Our narrow focus on the issue of monetary payment for medical malfeasance has helped us to ignore the other objectives of regulation; feedback has been one of the most significant losses incurred along the way. In Sweden, despite it's no-fault system of compensation, all claims are referred to a central databank and published. If cases are found to be grievous, disciplinary action can be taken against the provider by the Swedish equivalent of the state board of registration of medicine.

In contrast, our current approach to malpractice resembles the system of "justice" in the Old West, where public hangings satisfied the public thirst for retribution and guaranteed that the hung man would not repeat his offense. We now provide these public hearings through occasional huge, and widely-reported, awards by juries to those who have experienced bad outcomes. A more constructive approach to medical malfeasance could provide physicians with information about the nature of medical errors, so that all practitioners could share information and avoid mistakes that others have made.

We are able to take this approach with airplane crashes, which like medical malfeasance, are rare but instructive events. We should be able to recognize that although airplane crashes are dissected, diagnosed and discussed in the public forum, most people continue to use commercial airlines to get where they are going. If medical error, too, could be an open process, openly discussed, I do not believe that we could find ourselves without patients, or more likely to be sued. In allowing malpractice reform to be sidetracked into arguments about limits on compensation, we have lost the opportunity to institute a more constructive system in which we might collect the "black boxes" of medicine in order to study the nature of medical error to look for patterns and problems with definable solutions.

Steven Alan Silver, MD is currently in private practice in Pittsfield, Mass. He is a recent recipient of a masters degree in Outcomes Research from the Center for Evaluative Clinical Sciences at Dartmouth Medical School.

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