Busting the malpractice myths

It’s a common view that malpractice lawsuits are clogging up the American legal system and that many, if not most, patients who sue wind up with multimillion-dollar settlements.

But is this belief supported by the evidence? Apparently not, according to a recently released benchmarking report by Zurich, one of the top insurers of hospitals and health care organizations in North America.

Zurich collected data from 1,600 hospitals for 1997 through 2007. The main findings: There was a slight decline in the frequency of malpractice claims over the decade, and the average amount per claim has leveled off.

Teaching hospitals and children’s hospitals were the most likely to be sued for a large amount; nonprofit hospitals were the least likely. Community hospitals and outpatient facilities were somewhere in the middle. The reason for these differences isn’t entirely clear, although it might be at least partially explained by the fact that teaching hospitals often see patients who are sicker or have more complex or unusual illnesses.

The states with the highest claim severity were New York, Illinois and Pennsylvania.

The report more or less confirms what other studies have found: People do not necessarily go rushing to a lawyer after a bad outcome, and they don’t generally prevail when their grounds for a lawsuit are flimsy.

Pennsylvania, for instance, is considered one of the riskier states when it comes to malpractice litigation. Yet data for 2008 showed the number of lawsuits had decreased substantially, from 2,632 in 2000 to 1,602 eight years later. Only about 10 percent of the cases in 2008 actually went to trial, and the health care provider(s) prevailed 80 percent of the time.

And this study, which appeared in the New England Journal of Medicine in 2006, reached similar conclusions. The researchers collected random closed-claim samples and reviewed them, assigning a six-point scale according to the likelihood that medical error resulted in a bad outcome for the patient. They found that 80 percent of the claims involved significant injury resulting in disability or death. Slightly more than half of the plaintiffs were awarded damages, the average being $485,348. On the other hand, cases that went to trial were more likely to be those of questionable merit.

Although this study has been interpreted by more than a few observers as evidence that it’s mostly frivolous claims that end up in court, the researchers didn’t see it this way. Their take: It sometimes can require going to court for patients, families and their attorney to discover what actually happened that led to a bad outcome.

Of particular note, one in six of the claims the researchers examined involved an error by a clinician, yet the patient and/or family received no compensation. Most national estimates suggest that only about 10 percent of patients who are injured ever seek compensation. Maybe it’s because Americans aren’t as litigious as everyone thinks, or maybe it’s because injured patients aren’t being told the full truth.

Here’s the real clincher from the NEJM study’s authors:

Our findings suggest that moves to curb frivolous litigation, if successful, will have a relatively limited effect on the caseload and costs of litigation. The vast majority of resources go toward resolving and paying claims that involve errors. A higher-value target for reform than discouraging claims that do not belong in the system would be streamlining the processing of claims that do belong.

High-profile, multimillion-dollar cases tend to grab the public’s attention. From there, it’s a short leap to assuming these types of cases are common. But this is anecdotal at best, and the statistics don’t back this up. Maybe the discussion about tort reform would be less volatile if the emphasis was on fact rather than emotion.

Photo: Wikimedia Commons

But what about tort reform?

A lot of physicians were hoping the new health care reform bill would contain provisions for tort reform. Alas, they’ve come away from the table empty-handed; the bill offers little that’s new on this particular issue.

What it does contain, however, is some funding that will allow states to develop pilot projects that address medical liability. It’s not much money – approximately $50 million in grant money for which states can apply. And the goals are fairly narrow: The money must be used to develop alternatives to litigation that help resolve disputes over medical injuries, and/or to collect data and share it with health care organizations that focus on patient safety.

The Law Blog at the Wall Street Journal writes:

We checked in with folks from both sides of the aisle and, frankly, nobody seems all that troubled by this requirement. The trial lawyers are urging that states that apply for a grant to work on "patient safety" issues, rather than on other dispute-resolution techniques.

"We think patient safety is the way to go," Anthony Tarricone, the president of the American Association for Justice, told us in an interview. "If there’s no medical error to begin with, then there aren’t lawsuits." One example Tarricone tossed out: hand-washing programs at medical facilities to reduce infections.

It’s about time. I think this assessment is somewhat missing the boat, though, by not emphasizing the importance of alternative dispute resolution.

Few would argue that litigation is a good way to settle disagreements over who’s liable for a medical injury – and make no mistake, medical injuries can happen regardless of how many safety measures are in place. It’s grueling for the defendants, whose every decision gets raked over the coals. It’s grueling for patients and families too.

Despite the multimillion-dollar verdicts we read about in the headlines, most litigants don’t walk out of the courtroom with newly found wealth. The median range, according to this source, is $125,000 for an out-of-court settlement and $235,000 for a jury verdict. What’s more, most people injured by a medical error don’t ever sue, nor do they receive any form of compensation for their injury.

There’s also considerable debate over the extent to which runaway malpractice lawsuits are contributing to the cost of medicine. Last fall the Congressional Budget Office estimated that tort reform could save $54 billion over 10 years. Other experts believe, however, that med-mal costs have been exaggerated and that tort reform would result in negligible savings at best.

What’s been missing in the entire discussion? Two things: 1) prevention, after the fact as well as before; and 2) alternative, less stressful ways for everyone involved to make amends and fairly compensate the patient and/or family. Doug Wojcieszak, the founder of Sorry Works!, nails it with an editorial he penned last year on health care reform:

We need to shift the discussion from a political and legal fight to a focus on customer service and how to help the doctor-patient relationship transcend a medical error, and in so doing avoid costly litigation in most instances while improving quality and safety – and saving a whole lot of money in the process!

A growing body of evidence in the peer-reviewed medical literature shows that patients and families primarily file lawsuits against doctors because of anger, not greed. Patients and families become angry with their doctors (and nurses, hospitals, insurance companies, etc.) when communication, honesty, accountability and – literally – good customer service are lacking after a perceived error. In other words, patients and families are suing not so much because of errors, but because of the bad behavior surrounding errors.

It’s a whole different way of looking at the issue. It suggests that what we really need, in fact, isn’t tort reform but a more responsible, humane way altogether of dealing with injured patients. Critics can go ahead and complain that the health care legislation has done little more than throw a few table scraps in the direction of tort reform. I’m going to be optimistic that someone, somewhere, is going to have the guts to try a new approach that’s better for everyone involved and saves money besides. After all, we have nothing to lose.

The politics of apology

As Americans confront the monster issue of health care reform, there’s been a lot of discussion about tort reform and curbing the ability of patients and families to file a lawsuit when things go wrong. Unfortunately there’s been far less public discussion about how to compassionately manage the relationship between patients/families and providers in the wake of a bad outcome, and perhaps avoid altogether a painful, bruising trip through the civil justice system.

A newly published study may have muddied the waters further by suggesting that even when doctors apologize and take responsibility for harming a patient, they still might be sued. The patients in the study had a better perception of doctors who apologized “but weren’t significantly moved not to sue,” the ACP Internist summarizes.

Saying the word “sorry” has long been a touchy issue in the medical community. For one thing, it’s just a hard thing to say. It’s hard when there’s a bad outcome, even if everyone on the medical team did everything right. It’s especially hard if an error by the physician is directly responsible for harming the patient.

Malpractice insurers and risk managers also have traditionally counseled doctors and hospitals to clam up after a mistake. If you admit to nothing, nothing you say can be used against you, the reasoning goes. From a human relations standpoint, this is terrible advice. When something goes wrong with their care, patients and families generally are frightened, upset, vulnerable and in need of reassurance. A wall of silence can breed mistrust or anger. But who can really blame doctors for keeping mum when the stakes are so high for them, both personally and professionally?

Only within the past few years has the importance of apology begun to be recognized and openly discussed in the medical community.

Why do apologies matter? We don’t have to look any farther than three recent and highly public transgressions – Rep. Joe Wilson’s outburst during President Obama’s speech last week on health care reform, the cussing-out that tennis star Serena Williams unloaded on a judge at the U.S. Open, and rapper Kanye West’s boorish microphone grab Sunday night at the MTV Video Music Awards – to know that society expects people who screw up to acknowledge it and say they’re sorry.

Apology “has the power to repair harm, mend relationships, soothe wounds and heal broken hearts,” psychotherapist Beverly Engel writes in her book, “The Power of Apology.”

Apology is not just a social nicety. It is an important ritual, a way of showing respect and empathy for the wronged person. It is also a way of acknowledging an act that, if otherwise left unnoticed, might compromise the relationship. Apology has the ability to disarm others of their anger, and to prevent further misunderstandings. While an apology cannot undo harmful past actions, if done sincerely and effectively, it can undo the negative effects of those actions.

In short, apologizing brings emotional benefits to everyone involved.

It’s therefore disheartening, and even disturbing, to see the extent to which apology is often commodified in the medical world. Although there’s general consensus that patients and families should receive an apology when an error or harm occurs, apologies are still more likely to be the exception than the rule. In more than 30 states (Minnesota isn’t one of them), laws have had to be enacted to ensure that expressions of apology won’t later be used against physicians if a lawsuit is filed. At times the discussion seems more focused on apology as a means to an end than on the fact that it’s simply the right thing to do.

If you’re a physician and you’ve been conditioned by years of training and practice to keep quiet about your mistakes, there’s going to be a certain amount of fear about apologizing. The study about the impact of apology on the patient’s likelihood to sue, which was published in this month’s edition of the Journal of General Internal Medicine, unfortunately provides ammunition for the status quo: “I apologized and the patient sued me anyway, so what’s the benefit of apologizing?”

A couple of important points: First, this was a small study, involving 200 participants, and it measured people’s reactions to a simulation, not to real-life experience. Errors and apologies don’t take place in a vacuum. The patient’s relationship with the doctor, the patient and family’s prior interactions with the doctor and with the health care setting, the details of the incident – all of these come with an emotional context that’s not easily replicated by a simulation. It would be all but impossible to say, with any accuracy, whether the subjects in the study would respond the same way to an actual medical error and apology.

Second, most studies on this issue have found patients and families want an apology after something goes wrong – and that their relationship with the provider can be damaged, maybe permanently, when no apology is given.

Some of the most extensive work on disclosure and apology comes from the Sorry Works! Coalition, a nonprofit organization that offers training and advocacy and also serves as a national information clearinghouse. Although the coalition’s name suggests the main emphasis is on apology, the Sorry Works! strategy is about far more than saying the word “sorry”. It’s also about how the apology is conducted and, even more important, how patients and families can be compensated fairly for any harm they’ve incurred. In other words, it’s a process and it often unfolds over time.

Because we’re dealing with human beings here, we can’t always predict how they’ll react. Even when an apology is made sincerely and respectfully, it might be rejected by the patient and/or family. Saying you’re sorry does not magically guarantee the right response, nor are patients and families required to accept an apology once it’s uttered.

Sometimes people will sue no matter what. But surely there are times when differences can be settled less painfully with the words “We’re so sorry this happened” and an acknowledgment of responsibility. It is, after all, what most people want. And we should be asking ourselves why this isn’t a bigger part of the debate about tort reform.