Navigating Healthcare – Patient Safety and Personal Healthcare Management

Litigation in Healthcare – The Two Sides to the Pond

Posted in Healthcare Policy by drnic on August 31, 2009

I like Dr Crippen’s blog and enjoy reading his posts and commentary. He typifies the long suffering British doctor in many respects. He rails into waste as in this post on the ridiculous expenditure by Essex health commissars (!!) insisting on spending who knows how much on educating the population that they should eat more fruit and nuts. As Dr Crippen says:

..most of all, it is a waste of money. The hospital is on fire, burning to the ground. Why is no one doing anything? Where are the fire-fighters? They are in the local school lecturing children on the dangers of matches

But in this recent post: Paranoid Doctors he is distraught that in the US attorney’s advertise their services and offer a “No recovery, No Fee” option. As he puts it

So I can stop my medication. And thank God we don’t live in America

Yes and no…… as one of the comments on his post put it:

How would you respond to a patient whose GP had been giving him Steroid eye drops on repeat prescription for 11 years without reviewing him and who was not under the care of an Ophthalmologist, who now has bilateral steroid induced glaucoma and steroid induced cataracts?

I bet you dollars to donuts that this is a real case not just a hypothetical and therein lies the challenge. While there is abuse (as there is in any system) the idea that making it so costly and difficult provides good protection for the patient is wrong. A very good friend of mine was treated for a complex fracture of radius and ulna at some local hospital. The gung ho orthopedic surgeon decided he was up the task of treating this set of fractures and left him with permanent disability and finished his tennis career. No amount of money will ever make up for that but without accountability that surgeon would continue his treatment of other patient instead of referring them to a specialist. This all the more worrying since it occurred in the NHS a system that does not reward by number of patients/procedures carried out

For a more detailed look at the state of medical litigation this piece by Atul Gawande in the New Yorker – The Malpractice Mess provides more detail and an interesting slant on the topic. The case under review was for medical malpractice from nine years ago but what makes this more interesting is the lawyer for the patient Barry Lang was an orthopedic surgeon for 23 years. He had even been an expert witness on behalf of other surgeons defending their treatment in court. He certainly did not do it for the money and ended up in his new career because as he described:

because he thought he’d be good at it, because he thought he could help people, and because, after twenty-three years in medicine, he was burning out

Part of his original intent was to be a defensive lawyer for his colleagues but nobody would hire him as he had no experience. But as he advertised his expertise as the “Law Doctor” he managed to carve out a business working on behalf of patients. He does not take every case and in fact takes only a small percentage of the cases that comes his way. For him there are two basic requirements

  1. You need the doctor to be negligent
  2. You need the doctor to have caused damage

Most fail on both but when they don’t he spends time investigating and applying his years of clinical practice and experience to understanding the case to determine if there is malpractice. Many factors contribute but he takes the risk on a case since his payment is dependent on a successful outcome. There is much to dislike about a system of accountability that can reward inappropriately but accountability and review is an essential part of any high quality system.

Somewhere in this mess there has to be a better balance and approach. Malpractice is not bad – it is the abuse of Malpractice that is bad. Consider the MGH physician Bill Franklin who’s son’s developed a lung tumor that had been identified on a Chest X-Ray 4 years previously but never followed up and acted upon. His attempt to understand the reason for the failure to prevent the occurrence happening again to some other patient were met with

The (hospital) director told him that he couldn’t talk to him about the matter. He should get a lawyer, he said. Was there no other way, Franklin wanted to know. There wasn’t.

He was left with no other course than to open a malpractice suit which was won. It left an indelible mark on the son and the father and changed the way both practice medicine. But the method is still unsatisfactory

litigation has proved to be a singularly unsatisfactory solution. It is expensive, drawn-out, and painfully adversarial. It also helps very few people. Ninety-eight per cent of families that are hurt by medical errors don’t sue. They are unable to find lawyers who think they would make good plaintiffs, or they are simply too daunted. Of those who do sue, most will lose. In the end, fewer than one in a hundred deserving families receive any money. The rest get nothing: no help, not even an apology

There have been many attempts and much like the healthcare debate the special interests weigh in quickly when they feel their turf and income stream might be threatened. One such system started for vaccines where a surcharge is made to the cost of the vaccine that is placed in a fund set aside for the purpose of compensating the small percentage of people harmed by side effects. Some countries have tried to instigate systems along similar lines – New Zealand which has a set of limits, clear defined liability and importantly quick payouts (within 9 months). There are better models and solutions. The answer lies in a fair timely system that helps those that have been hurt, identifies fault in an effort to prevent future errors without over burdening the system and the clinicians.

Malpractice or some variant of oversight is an essential part of our healthcare system and needs to be included in any debate of reform but as with all things balance and informed debate is the way to go


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