TUESDAY, FEBRUARY 15, 2011 AT 12:48PMMedical malpractice litigation is intended to deter wrongdoing by healthcare providers, determine who has been injured by medical error and who has not, and provide fair compensation to the injured. However, it accomplishes these purposes too imperfectly, and it is notoriously costly and inefficient.
Post-adverse event disclosure and apology is a policy that is designed to address what the tort system fails to accomplish. Consider this a crash course in litigation versus disclosure and apology:
Read these four articles for a solid introduction to medical malpractice and related issues.
Kachalia, Allen and David M. Studdert. “Professional Liability Issues in Graduate Medical Education.” Journal of the American Medical Association 292.9 (2004): 1051-1056.
The authors discuss the collective responsibility that is shared between resident physicians, attending physicians, and GME institutions. The law does not offer concessions in the quality of care provided at GME facilities; resident physicians are generally held to the same standard of care as attending physicians in their specialties. Attending physicians can be found liable not only for the care they provide, but for the care they direct, the negligence of resident physicians, or the lack of proper supervision. What constitutes adequate supervision is not clear, but there continues to be a divergence between customary medical practice and legal perspectives.
Available at: http://jama.ama-assn.org/content/292/9/1051.full.pdf
Studdert, David M, Michelle M. Mello, and Troyen A. Brennan. “Medical Malpractice.” New England Journal of Medicine 350:3, January 15, 2004. (NOTE: subscription required for full article)
Studdert et al provide a succinct analysis of the medical malpractice system. The malpractice system is intended to fairly compensate the wronged party while deterring future wrongdoing on the part of care providers. However, the system is failing at both of its intended aims. The authors review the history of the malpractice liability system and examine its efficacy in terms of the disconnect between injuries and claims. From the data reviewed, the authors conclude that the system is woefully inefficient, costing double the overhead rate of an average workers’ compensation mechanism. The authors also examine the culture clash between tort law and the patient-safety movement, suggesting that tort law undermines efforts towards improvement of patient care due to fear of liability. They discuss several tort reforms. including early-offer programs, administrative compensation panels, and enterprise liability.
Available at: http://www.nejm.org/doi/pdf/10.1056/NEJMhpr035470
Boothman, Richard C., et al. “A Better Approach to Medical Malpractice Claims? The University of Michigan Experience.” Journal of Health & Life Sciences Law 2.2 (2009): 125-159.
At the University of Michigan, the medical center has instituted an innovative program of disclosure, in an effort to change the attitudes and practices surrounding malpractice claims. When the only option for malpractice claims is litigation, a significant opportunity for clinical and system improvements is lost. The University of Michigan’s program provides support for patients and families who have experienced adverse events, including early offers of compensation, while also engaging caregivers and other hospital administrators in the process of analyzing and learning from mistakes. This system satisfies the financial and emotional needs of patients and families without having to resort to litigation, while also creating the means to use the feedback gained from patients and caregivers to improve patient safety.
Available at: http://www.med.umich.edu/news/newsroom/boothman%20et%20al.pdf
McDonald, Timothy, Kelly M. Smith and David Mayer. ““Full Disclosure” and Residency Education: Resident Learning Opportunities within the context of a Comprehensive Program for Responding to Adverse Patient Events,” ACGME Bulletin (2008): 5-9.
Full and open disclosure of medical errors in the context of a program of reporting, investigation, communication, apology, and improvement, is beneficial to the health care delivery system as a whole, including in the area of patient safety. It is also an ideal context in which to provide training and assessment in ACGME identified core competencies. The authors describe the disclosure program currently implemented at the University of Illinois Medical Center at Chicago and how residents are integrated into the program, as well as how the program components enhance residency training in each of the ACGME core competencies.
Available at: http://www.acgme.org/acWebsite/bulletin/bulletin5_08.pdf
Medical Malpractice Annotated Bibliography
If you're ready to dive deep into medical malpractice literature, download CIR's Annotated Bibliography, a compilation of 96 articles exploring medical malpractice, insurance, liability, disclosure and mediation.