Paul Levy: A Different Kind of Malpractice

Monday, April 16, 2012

Paul Levy, GoLocalWorcester MINDSETTER™

Paul Levy GoLocalWorcester MINDSETTER™

Malpractice lawsuits are a necessary evil in our society. At times, they are frivolous, often resulting from a patient’s or family’s anger at a result that was not what they had hoped. Some are actually designed just to try to get a financial settlement. When doctors are sued for malpractice, it is a searing process, isolating and painful. I have known several excellent doctors who have given up established practices so they will never have to go through the possibility of another lawsuit. That is a real loss to society.

But our legal system is also designed to protect patients. Malpractice lawsuits can be justified when a doctor acts negligently or makes a decision that is clearly outside of the bounds of the accepted standard of care.

One of things we know about quality and safety lapses in hospitals, though, is that they are often the result of systemic problems in those organizations. It is not that a doctor or nurse has intentionally committed a clinical error. It is that the way work is organized in the hospital causes errors to occur. For example, many hospital-related infections arise this way, and people die or are harmed as a result. This raises a question as to whether it should be possible to sue for malpractice when a hospital fails to act to correct systemic problems.

Anne Carroll, now retired, has graduate degrees in information science and public health. She raised the question this way recently in a recent health care quality and safety chat room (reprinted here with her permission.)

Here is a not-so-hypothetical case: In an organization where the "systems errors" are generally known (subsequent to root cause analysis after RCA after RCA analyzing the same errors and the same processes), and the "normal human errors" are generally known, and the solutions to the systems errors and normal human errors are evidence-based and generally known--and no organizational processes have been redesigned to include barriers and forcing functions and other known process improvements to prevent errors from reaching patients; no policies and procedures have been rewritten and improved; no staffing improvements have been implemented; there is no communication from top management about patient safety as a priority--and the organization's patient safety and health outcomes have not improved--how long should that organization and its personnel be given a pass? If not negligence and incompetence, what should it be called?

I was recently at a hospital where the CEO said directly to his senior management and clinical leaders that his goal was to be “just above average” when it came to quality and safety metrics. I was stunned because I know the effect of setting such a low target. In my former hospital, we established a target of eliminating preventable harm; we implemented scores of process improvements; we rewrote policies and procedures; we made it clear that the top leaders and our board of trustees viewed reduction of harm as a priority. Once we did all that, we were able to avoid the deaths of dozens, maybe hundreds, of patients per year. The CEO who has chosen not to do that has, in essence, said that the loss of hundreds of lives at his institution is acceptable.

Anne raises the issue of whether a hospital that takes a passive approach like this should be vulnerable to malpractice lawsuits. She suggests that the scope of the standard of care in medicine has changed. It is no longer just a question of whether the doctor has made reasonable decisions in the care of the patient. It is a question of whether the hospital has affirmatively engaged in systemic process improvement to avoid harm.

I am not one to encourage malpractice lawsuits, having seen the effect of them on individual doctors who are unjustly accused of an act of commission or omission. On the other hand, I have sympathy for the patient who has died or been harmed unnecessarily because of the failure of a hospital to try to improve its delivery of care.

I am not suggesting that every instance of harm should prompt an institutional malpractice lawsuit. Even the best hospitals in the world, the ones focused intently on improving care, will have such events. Rather, I am suggesting that if a hospital has not demonstrated a good-faith effort to adopt proven techniques and approaches to improving quality and safety, it is not carrying out its public service responsibilities. In such a case, I think it is quite fair to raise the question in court as to whether the institution should be held legally responsible for avoidable harm.

Paul Levy, former CEO of Beth Israel Deaconess Medical Center, is an advocate for patient-driven care who writes a blog about health care issues entitled Not Running a Hospital. Paul is also the author of Goal Play! Leadership lessons from the soccer field.