Injuries stemming from medical treatment have far-reaching effects throughout the healthcare system. Not the least of which is the human toll upon the aggrieved patient when the Hippocratic Oath is compromised.
Medical malpractice law is the mechanism in place to advert negligence by doctors, however, some of the law’s merits have recently been challenged by lawmakers in an effort known as tort reform. Currently a contentious issue, tort reform seeks to place caps on payouts for malpractice suits, among other legislative efforts attempting to make litigation a less attractive option. The argument for tort reform asserts that when doctors fear litigation they practice “defensive medicine,” or over-treating the patient by taking unnecessary, and often costly measures to avoid accidental harm. Conversely, the other side argues that such measures treat the problem and not the cause, and impede patient’s rights by making a trial by jury more difficult to obtain.
In either case, there are looming statistics, such as those from the Institute of Medicine’s (IOM) report To Err Is Human: Building a Safer System, which paints an unfortunate picture of medical practice with respect to injuries caused by negligence. The report stated that between 44,000 and 98,000 deaths occur annually due to medical errors which could have been prevented. While human life is the highest price of medical errors, other inherent costs include the morale of patients and health providers, time spent in litigation and money spent by insurers, physicians and patients.
Despite the dismal outlook, the report examined possible methods which could improve the systemic failures leading to wrongful death and malpractice lawsuits. While individual healthcare providers were the central focus of such improvements, the IOM also asserted that malpractice cases in which a verdict was returned can provide useful healthcare data which may tip the scales toward a more positive outlook.
Malpractice data improving healthcare
In the article Closed Medical Negligence Claims Can Drive Patient Safety and Reduce Litigation, authors Pegalis and Bal assert that troves of valuable data are available through researching resolved malpractice cases. The study explores instances in which medical data was taken from such cases in order to enact reform among groups of practitioners.
One case mentioned in the report references The American Society of Anesthesiology’s (ASA) use of closed malpractice case data to reduce healthcare costs, increase patient safety and reduce medical errors. The ASA put mandatory procedures in place, and self-regulated using the information gleaned from these cases.
The report goes on to say that putting these procedures in place saved many lives, and reduced instances of death from one to two for every 10,000 procedures to just one for every 200,000.
Pegalis and Bal bring attention to another case in which a united front of obstetricians enacted procedural reform based on the data taken from 200 closed malpractice cases. The obstetricians were able to identify situations where there was a high risk of error which resulted in maternal and fetal injuries, and unnecessary cesarean deliveries. They were then able to drastically reduce the risk of these injuries. This contributed to the overall improvement of child-birth outcomes, and reduced rates of malpractice lawsuits brought against the physicians. The American Journal of Obstetrics & Gynecology, when referencing this case study, alerts that standardization of procedures and creation of clear practice guidelines is the best way to avoid adverse medical situations and litigation as opposed to making unusual care more defensible.
In a malpractice case, the amount of medical data involved can grow to massive proportions. During the discovery phase of a trial, recorded health data leading up to the incident is exhumed and poured over by the plaintiff and defendant’s legal teams. Independent expert witnesses also provide valuable insights that create perspectives into both sides of the issue. Finally, when the verdict is reached it gives credence to one of the party’s claims, setting a precedent for future encounters with similar issues.
As an alternative, peer review presents valuable insights as well. But, peer-reviews are self-regulated and conflicts tend to arise because the objective reporting of adverse treatment may cause the practitioner to fear lost referrals or detriments to his/her career progress. Furthermore, it is hard to imagine that the review of a competitor will always produce an unbiased results. For these reasons Pegalis and Bal state that closed malpractice case data can be considered superior over peer review.
While healthcare data derived from malpractice lawsuits can provide a great deal of insight on medical errors, the best approach to healthcare reform is a communal and objective effort using all reliable means of information gathering. This includes pooling resources which advocate for all interested parties, and ignoring self interested tactics. Lawmakers, physicians, insurers, patients, health IT professionals and administrators all have a vested interest in the success of a vital healthcare ecosystem.
Finding closed malpractice case data
The National Practitioner Data Bank (NPDB), created by Congress, is a repository for healthcare data that includes outcomes of malpractice lawsuits. Users of the NPDB can review statistics and analyze health data using several tools on the website such as Adverse Action Reports (AAR) and Medical Malpractice Payment Reports (MMPR). The site is meant to protect the anonymity of healthcare providers involved in legal disputes while providing useful information to aid in decision making for physicians, insurers, health care administrators and lawmakers to improve overall quality of our national healthcare system.
Frank Pipolo is the chief writer and media relations coordinator for Swope - Rodante P.A. and reports on healthcare related issues surrounding litigation.