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Human practices are inherently plagued by the possibility of an error. In medicine, errors translate to patients being harmed. This research paper focuses on the attributes of medical malpractice, the ethical imperatives to minimize errors and to inform injured patients, and a short deliberation for and against changing the compensation scheme for harmed patients, including innovative regulatory models.
Professionals are expected to meet standards of practice. Performing below an expected standard is negligent, and in the medical arena it is termed “medical malpractice” [MM] (and in the UK “clinical negligence”). The ethical imperative underlying the legal concept of MM is Primum non Nocere – First, do no harm. Historically, malpractice has been treated as an ethical failing and legal wrong, established even by the Code of Hammurabi, which physically punishes physicians for not exercising a reasonable degree of skill and care. Moving to modern times, the 1992 World Medical Association Statement on Medical Malpractice deﬁnes malpractice as “the physician’s failure to conform to the standard of care for treatment of the patient’s condition, or a lack of skill, or negligence in providing care to the patient, which is the direct cause of an injury to the patient” (WMA 1992). Recent years have demonstrated a surge in patients’ claims of alleged malpractice, a phenomena known as the “malpractice crisis.” The results of this crisis, the focus of this research paper, are visible in all aspects of healthcare delivery.
Before discussing the ethical aspects of MM, a short sketch of the landscape invoked by MM is in order, as it pertains to many parties and several disciplines, including legal, insurance, regulation, civil rights, and more.
The following parties are involved when an error in caring for a patient takes place:
(a) The patient, who approached the healthcare provider for relief of his ailment and is left with an unnecessary, unanticipated harm.
The consequence is physical injuries and emotional distress, depending of course on the severity of the harm and the personal circumstances. For example, an avoidable loss of a womb at the age of 30 years carries a different burden than at the age of 60 on the injured person. The magnitude of avoidable injuries to patients is estimated as a leading cause of death in developed countries. In the USA, some 50–90,000 deaths are attributed to errors and malpractice. The social network for injured patients differs amongst jurisdictions, and if insufﬁcient, litigation is the patient’s only avenue for due compensation.
(b) The provider, aiming at her patient’s best interest has failed. As the indoctrination of young doctors for many years has been that an error is the result of unprofessional, “bad apple” practitioners (and not as we appreciate today that “to err is human”), a cognitive dissonance transpires, where peers’ denunciation plays a signiﬁcant role. The result is both emotionally and professionally devastating (depending of course on the degree of harm her patient suffered), leaving its effects for many years to follow. Expected outcomes include avoiding complex procedures or specialties, evading complex patients by sending them elsewhere, or even discontinuing medical practice altogether. Professional and ﬁnancial consequences are apparent – her premiums will rise, privileges reviewed, and possible disciplinary measures might be instituted, jeopardizing all she worked for. If litigation ensues, tarnished reputation and the public shaming adds-up to the personal toll of negligence.
(c) The hospital or organization in which care was provided has several interests at stake: it must maintain its reputation and credibility; it needs to make sure similar cases do not recur; it operates under national regulation and must answer to state authorities; and it needs to guard its ﬁnancial stability in face of expensive litigation or increased insurance premiums. From within, medical institutions must create a cultural change, where patient’s safety and standards are practiced not as a temporary attempt but rather a cultural transformation.
(d) The regulators (Department/Ministry of Health) at large should aim at systematic efforts to decrease the number of errors taking place, while maintaining the public trust in the quality of care rendered. To this end, regulators have several positive as well as negative incentives, including ﬁnancial, disciplinary measures, and regulatory action. The incentive to be committed to dealing with malpractice is sensitive to public uproar for noticeable, high proﬁle cases, available resources, and unswerving leadership. All these factors change over time and place, thus requiring a genuine cultural change.
(e) The insurance industry, which provides for compensation payments to injured patients, has created several mechanisms to meet the changing reality of malpractice liabilities, attempting to decrease payouts and increase margins of proﬁts. This practice should be acceptable, as insolvency of an insurer has wide-reaching implications, including leaving patients without compensation. These measures include increased premiums; refusing to insure practitioners, practices, or ﬁelds of practice; mandating risk management strategies; and seeking alternatives to the tort system such as alternative dispute resolution. The increasing involvement of the insurance industry in instituting and even mandating risk management protocols is a testimonial to the ethical failing of the medical profession for too many years, conferring underimportance to the medical error phenomena.
(f) The legal system plays an important role in the medical malpractice crisis, mostly dealt by tort law, providing compensation to some injured patients, if they succeed in court. According to tort law, ﬁnding a doctor negligent requires the following elements: that the doctor owed a duty of care to the injured patient (i.e., that a contractual/binding relationship was in place); that the duty was breached (i.e., that the performance of the doctor did not reach the standard of care of a reasonable peer under the same circumstances); and that the injuries were actually caused by the breach of duty (termed “causation”). Noticeably, breach of duty without injuries cannot be taken to the courts. In other words, “near misses” are not actionable, which is a major setback to efforts to reduce the prevalence of errors, irrespective if they actually caused harm.
However, tort law’s role of redressing injured patient has been the subject for increased criticism (Mello 2003). It was argued that the tort system lack sensitivity or speciﬁcity in awarding compensation: the vast majority of patients injured by negligent medical care do not receive compensation, while other cases, that do not appear to involve negligence, succeed. In some cases, it awards more damages than seems reasonable to many observers. Tort liability is not necessarily aiming at improving healthcare quality and safety, yet it is the driving force behind risk management initiatives and costly defensive medicine (Siegal et al. 2008). But, the greatest ethical failing of the tort system lies in transforming the patient and her provider into rivals, standing on opposite sides (Barbot et al. 2014). An injured patient that becomes a plaintiff distances himself from his provider in a harmful way. This aspect is discussed later, searching for alternatives to compensation schemes that are less harmful to patient provider relationship.
(g) The public at large is affected by the malpractice litigation crisis in many ways. Decreased accessibility to services that are deemed legally high risk (such as high risk maternity services) as professionals abstain or charge a much-higher price; a growing animosity between providers and patients (as each patient is a potential plaintiff); and resources that are shifted to legal purposes (fees, compensation) are deprived from an already constrained health system.
The most signiﬁcant development in the ﬁeld of MM took place in the 1990s of the previous century, when ﬁnally a systematic approach to medical errors took place. It took some 2000 years to realize that medical errors are not the result of an incompetent practitioner (“bad apple”) but rather the result of systematic ﬂaws. In other words, the adverse event is the result of aggregated errors in managing healthcare delivery, related to manpower, work environment, equipment, and management. Systems must have checks and balances to prevent errors, and materialized risks are errors that the “system” failed to prevent. After studies from Leape and colleagues at Harvard University, demonstrating the high prevalence of medical errors, the Institute of Medicine published its seminal reports: To Err is Human: Building A Safer Health System (1999), and Crossing the Quality Chasm: A New Health System for the 21st Century (2001), calling for the need to identify measures of risk reduction and management, to improve the safety of patients. The results of these changes are still in the making, but on the outset the cultural change is evident – nomination of risk management ofﬁcers, instituting quality improvement measures, measuring outcomes, or workﬂow scrutiny are just a few examples of the refocusing healthcare delivery practice in diminishing preventable injuries to patients and others (including team members, visitors).
Ethical Aspects Of Malpractice
- Discussing and Reporting Errors
Each time we err, we are embarrassed and usually surprised. But when patients are involved, dealing with errors takes two different paths. If the error remained covered, as no injury transpired or the patient recovered albeit the mistake, the general instinct is to be grateful and move on, sharing it with as little people as possible if at all. If the error reveals itself by an overt injury to a patient, attempts to dodge the mistake usually involves refutation, blaming others (including the patient), or “leaving it to the lawyers.” From an ethical stand point, discussing and reporting errors is an essential ethical duty on the part of healthcare providers. Only by learning from mistakes, analyzing contributing factors, identifying root-causes, engaging in corrective measures, and supporting a culture of sharing mishaps can we aspire to improve the collective medical knowledge and combat our inherent tendency to err. Importantly, “near misses” are an important indicator to existing problems, as errors that caused an injury, as today’s “near miss” is tomorrow’s full-blown accident. To strengthen the ethical imperative to deal with errors, many institutions and jurisdictions has instituted reporting systems, with varying incentives such as immunity from litigation, guaranteed anonymity, and various rewards.
- Admitting Error to Patients
The American Medical Association’s Code of Medical Ethics states that
Situations occasionally occur in which a patient suffers signiﬁcant medical complications that may have resulted from the physician’s mistake or judgment. In these situations, the physician is ethically required to inform the patient of all the facts necessary to ensure understanding of what has occurred. Only through full disclosure is a patient able to make informed decisions regarding future medical care. [Section 8]
Scholars, healthcare ofﬁcials, and public opinion all seem to support policies of openness and honesty, transparency, and veracity (Gallagher 2006; Kraman and Hamm 1999). The justiﬁcations for disclosing harmful errors to patients are compelling. The same ethical impetus, respect for autonomy and self-governance, that dictates disclosure prior to any intervention (i.e., informed consent) warrants disclosure of what actually took place. From a medical perspective, full disclosure enables loss mitigation in many cases, as an informed patient becomes aware of the need for further care, depending on him knowing all relevant facts. Finally, the ability to receive rightful compensation for the injury sustained depends on full disclosure of the events that led to the injury, as to enable the court to reach the conclusion that compensation is merited. The American Medical Association’s Code of Medical Ethics notes that “Concern regarding legal liability which might result following truthful disclosure should not affect the physician’s honesty with a patient.. Trust between a physician and his or her patient is at the very core of the patient-doctor relationship. Hiding from, obscuring, or omitting facts and details in conversations with patients, particularly in the face of a medical error, erodes that trust. Full disclosure, whether it increases malpractice liability or not, is the appropriate ethical path (AMA Code of Medical Ethics).” Also, a policy of full disclosure to patients is not only ethically right but can reduces the risk of patients bringing suit. Surveys of patients or their families who sued over malpractice claims suggested that many were motivated by suspicion of a “cover-up” or mistakes they thought went unacknowledged.
However, the practice of candor disclosure is fraught with impediments, including the above-mentioned embarrassment, fear of legal retaliation, lack of training of breaking bad news, and the lack of organization’s culture of dealing with errors. Indeed, according to a 2006 survey of 2,637 physicians, only 42 % of responding physicians said they would make a full disclosure, including an explicit statement that an error occurred; 56 % said they would make a partial disclosure, mentioning the adverse event but not the error; and 3 % said they would make no reference to the adverse event or error.
To give effect to these ethical considerations and high aspirations, over 30 states’ legislatures in the USA enacted “apology” and “disclosure” laws. Generally speaking, these laws provide that an oral or written communications of apology, regret, sympathy, compassion, mistake, or similar expressions regarding a patient’s unanticipated outcome may not be admitted into evidence in a malpractice case and do not constitute an admission of liability. The need for such laws is a testimony to the ambivalence on part of providers in discussing medical errors with their patients.
In an attempt to contain claims of malpractice, the practice of medicine has been infused with routines of “defensive medicine” [DM] – unnecessary procedures and tests proscribed for self-serving liability-reduction purposes and not governed by good practice standard. For example, in order to avoid a possible claim for failed diagnosis of a brain tumor in young adolescents (let’s assume a 1:100,000 risk), a doctor will prescribe to all his young patients a brain CAT scan. Alas, brain CAT scans are not without their prices – radiation to the brain tissue, exposure to contrast materials with the risk of having a life-threatening allergic reaction, and the cost of some $300–500, a cost spent for all other 99,999 patients in vain.
Defensive medicine may also not be as clearcut a situation as other malpractice-related ethical concerns, since the doctor is doing more for the patient. Surveys of physicians repeatedly ﬁnd support in the existence and vindication of DM. The evidence suggests that defensive medicine is practiced fairly regularly, but major organizations worldwide are clearly against it. The British Medical Association has warned against defensive medicine in the past, and the Academy of Medical Royal Colleges, which represents over 200,000 UK doctors, recently made public statements urging doctors to cut down on unnecessary prescriptions, and arguing that wasting time and resources was actually an ethical issue due to scarcity. The AMA Code of Medical Ethics agrees, noting in Section 2.19 that “Physicians should not provide, prescribe, or seek compensation for medical services that they know are unnecessary.” Combined with Section 2.095, which takes into account as “ethical principles” the degree of beneﬁt, likelihood of beneﬁt, duration of beneﬁt, cost, and number of beneﬁciaries.
Ethical Comments On Alternatives To Medical Malpractice Tort Liability
The depiction of the medical malpractice phenomena and its consequences raises the question whether we can do better. It seems rather clear that the attempt to decrease the frequencies of avoidable mistakes is sincere and indeed productive. But, as patients injuries by errors will always remain part of the equation, are there alternatives to the confrontational, fault-based requirement for compensating them? It should be noticed that compensation is not regarded as a punishment to the wrongdoer but rather a vehicle to provide the injured a chance for recovery and resuming productive life, as much as money can do. Several jurisdiction have attempted such a paradigm shifts, such as New Zealand, Scandinavian countries, and Virginia and Florida in respect to newborn injuries (Siegal 2008). In these jurisdictions, the patients need only prove that the injury resulted from the medical care. The hoped-for beneﬁts of administrative compensation include (1) more justiﬁable, rapid, and reliable resolution of claims. The burden of proof is lenient, the fact ﬁnding process simple, and in some places the involved doctors themselves help the patient petition the tribunal. As a result, (2) signiﬁcant reduction in costs, and a larger portion reaches the patient (instead of 40 %, up to 90 %). The end result is an improved climate for open discussion and reporting of medical errors, and greater incentives for physicians and healthcare organizations to make healthcare safer. These alternative resolutions do a great deal in respect to the ethical dimensions of MM. Transparency and discussing errors with patients becomes easier and more realistic. They also possibly decrease the need for defensive medicine measures.
Medical malpractice is part of everyday medical practice. Once realized as a collective problem, systematic measures can be put to work in reducing the prevalence, the severity, and the consequences of MM. Many areas are implicated in MM (medicine, ﬁnance, insurance, ethics, law to name a few), and thus its implications are far reaching. Ethical dimensions of MM include the need to overcome the difﬁculty of admitting an error, discussing it with patients and peers, and taking sometimes painful corrective measures. Reviewed from an ethical perspective, all stakeholders must attempt to ameliorate the present crisis in order to reduce its medical and social costs. To this end, alternatives to the tort system should be explored.
- AMA Code of Medical Ethics. Available at: http://www. ama-assn.org/ama/pub/physician-resources/medicalethics/code-medical-ethics.page. Last accessed 2 Sept 2015.
- Barbot, J., et al. (2014). “No-fault” compensation for victims of medical injuries. Ten years of implementing the French mode. Health Policy, 114, 236–245.
- Gallagher, T. H., et al. (2006). Choosing your words carefully: How physicians would disclose harmful medical errors to patients. Archives of Internal Medicine, 166, 1585–1593.
- Institute of Medicine Reports: Crossing the quality chasm: A new health system for the 21st century (2001). Available at: http://iom.nationalacademies.org/Reports.aspx. Last accessed 2 Sept 2015.
- Institute of Medicine Reports: To err is human: Building a safer health system (1999). Available at: http://iom. nationalacademies.org/Reports.aspx. Last accessed 2 Sept 2015.
- Kraman, S. S., & Hamm, G. (1999). Risk management: Extreme honesty may be the best policy. Annals of Internal Medicine, 131, 963–967.
- Mello, M. M., et al. (2003). The new medical malpractice crisis. New England Journal of Medicine, 348, 2281–2287.
- Siegal, G., et al. (2008). Adjudicating severe birth injury claims in Florida and Virginia: The experience of a landmark experiment in personal injury compensation. American Journal of Law and Medicine, 34, 489–533.
- (1992). World Medical Association statement on medical malpractice. Available at http://www.wma.net/en/30publications/10policies/20archives/m2/. Last accessed 2 Sept 2015.
- Sage, W. M., & Kersh, R. (Eds.). (2006). Medical malpractice and the U.S. Health Care System. New York: Cambridge University Press.
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