Thursday, October 19, 2006

What If It's Nobody's Fault?

In my web surfing recently I ran into two stories from The Toronto Star on how medical errors are addressed in New Zealand. You can read an article from health care researchers here; and an article from a professional who’s practiced under the system here.

The point of the articles is that in New Zealand medical errors are adjudicated on a "no fault" basis. That is, if an error occurs and a suit is filed, the case is addressed on a "no fault" basis. Settlements are reached, or damages are awarded, but they do not include punitive damages. The articles do not speak specifically to compensatory damages - costs of care, lost wages, etc. But there are none of the large - some would say too large - awards that come from making an individual or a small group personally responsible.

In my own neighborhood, this is an issue that affects the care that people receive. I live in Missouri and work in Kansas, crossing the state line twice a day, and usually more. The laws regarding medical liability differ in Missouri and Kansas, and some physicians, especially in some high-risk specialties, have moved their practices from the Missouri to the Kansas side of the line. The reason cited most often is the difference in the cost of malpractice insurance; and the reason most often cited for high insurance rates is high damage awards. This has made it harder for some patients to reach the doctors they had been seeing. It has made it necessary for some to change hospitals; and since most of those decisions in the American context are driven by insurance plans, many have not been able to afford the change, and so have had to find new practitioners, selected from a smaller pool. Those physicians who haven't moved have had to raise their rates. And to in Missouri, as in many states, the hottest topic in health care, outside of election year issues, can be tort reform, the effort to change civil law procedures to shield physicians from massive legal and insurance expenses.

The authors of the two articles, writing for a Canadian audience, acknowledge that establishing a "no fault" standard for medical liability cases would be difficult to establish in Canada. My guess is it would be even harder in the United States. At the same time, it's not really a new thought. Within health care in recent years there have been great efforts to establish a "non-punitive culture." The point is to establish an environment in which a person making a mistake can admit to it without fear of being fired. The value of that is that mistakes will be reported rather than hidden, and so the necessary changes can be made. It includes recognition that people make mistakes within the context of a system, and often making changes to the system can reduce errors, sometimes greatly. That may mean new equipment or new procedures or new education for the employee. But, it's having the errors reported that makes it possible to take the corrective action.

And this is the most important benefit the authors of the articles cite for the New Zealand practice: practitioners admit to mistakes, and so corrections can be made. In addition, they report that settlements are reached faster and aren't swallowed up in legal fees. So, patients are offered a safer environment on the front end as mistakes are addressed and systems are reformed. And those who do suffer receive settlements more quickly. Practitioners also can be less defensive in their practice, and can establish better relationships with their patients.

Now, again, I don't know what it would take to establish this as a standard in the American context. We may blame "bad doctors" or "greedy lawyers" for the state of things. But, let's be honest: we cherish as a right the possibility of establishing blame and holding the person or persons responsible, and then insisting on being compensated far beyond simple restitution. We're quite ready to cry, "It was just a mistake!" if we make it, even if someone is harmed. We’re quite ready to cry, “Someone must pay!” if we’re hurt by someone else’s mistake. So, if I’m prepared to hold my suffering as priceless, how can I limit that right to others?

Moreover, we consider punitive damages a deterrent to bad practice. We trust that the vast majority of practitioners are always doing their best. At the same time, we want some incentive for all practitioners, and especially for careless, impaired, or untrustworthy practitioners, to focus and always do their best. We are in many ways a punitive society, distrusting until trust is earned. So, we want practitioners to have something to fear. We feel vulnerable, and we want them to feel vulnerable.

But in our efforts for a non-punitive workplace, we have not discarded those limitations that allow us to take dangerous practitioners out of practice. We make the assumption that the majority of practitioners are indeed intent on doing their best. We establish procedures for determining when errors are the result of systemic problems, and when they are truly malpractice, bad practice. I do not know the New Zealand system, and the authors do not speak to this specifically; but I would expect they do have procedures to do the same.

In health care we believe that a non-punitive workplace prevents errors, and so makes things safer for patients and for staff alike. According to these reports, the New Zealand legal system has applied this to all of health care, and not just to those facilities that incorporate it into their corporate culture. It would be worth watching. If it can make people safer and make compensation when necessary faster and more sure, and help reduce expenses for practitioners and patients alike, it would seem worth pursuing.


Susan Palwick said...

One of the staff chaplains at the hospital where I volunteer recently told me about research that shows that when medical personnel admit their mistakes to patients and families, the lawsuit rate goes down. People can forgive honest errors, especially if those who've made them own up to them right away, but they don't want to be kept in the dark.

Over the years, my best doctors have been the ones who were willing to say, "I screwed up on that; I'm sorry." My worst medical experience involved a series of small but serious errors -- which landed me in the hospital with a life-threatening infection -- for which no one was willing to take responsibility. Infuriating! I didn't sue, but other people might have.

Marshall Scott said...

I have also seen that research, both in England and in the US - interesting, as those are two very different environments both for health care and for medical liability and torts. In fact, not only are there fewer suits, but when there are suits they're settled for less money.

Certainly, the culture in my hospital is to require that kind of disclosure. I do think over all we'd benefit from a less punitive system - on this, and on other topics.