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Focus on Patient Safety
Title of Article: Looking Beyond Tort Reform Toward Safer Quality Health Care Systems
Karin Janine Berntsen, BSN, RN
Author of The Patient's Guide to Preventing Medical
Errors
Greenwood Publishing
Group, Inc.
Correspondence to:
Karin Janine Berntsen, BSN, RN
Jamul, CA 91935-2121
619 302 9764
Kberntsen@cox.net
Focus on Patient Safety
Over the last few years, much has been written about medical
errors and strategies for improving patient safety. In this column Karin Janine
Berntsen, an expert on preventing medical errors, shares new ideas and
approaches with readers. She can be reached at Kberntsen@cox.net
Looking Beyond Tort Reform Toward
Safer Health Care Systems
There is a raging debate over the need
for tort reform. Many health care professionals believe that implementing cap
limits on medical malpractice settlements will help stem the flood of new
medical malpractice claims. The legal community and some consumer groups
believe that cap limits may censure those patients who are significantly harmed
by medical errors by limiting the amount paid to compensate their injury. Yet,
both these claims ignore the need to overhaul vulnerable health care systems
that lead to medical errors. Quality leaders have long understood that applying
the principles of process improvement and decreasing variation in practice can
help to improve the flawed systems that lead to errors.
Reduntant
Insurance premiums are rising substantially and exponentially for many
physician specialties including surgeons and obstetricians. Shelby L. Wilborn,
MD, a board certified obstetrician, testified before the US Congress that she
had left a thriving practice in Nevada after 12 years because of the
astronomical rise in insurance premiums. She told the hearing panel, “One
obstetrician in Nevada was paying $141,760 per year, with a number of physician
premiums rising 50% in just one year.” She also stated that Nevada faced a
crisis because of the dwindling number of physicians. Wilborn expressed concern
that the decreasing number of physicians would not be sufficient to cover the
deliveries occurring each year. In
addition, it was recently reported that some obstetricians in Florida pay
premiums as high as $210,000 per year.1 Along with Nevada and Florida, other states
have been hard hit by increasing premiums including Arizona, Illinois,
Massachusetts, Mississippi, New York, Ohio, Pennsylvania, Texas and West
Virginia.1,2
Three types of damages are assessed in malpractice
awards: punitive (intended to punish), economic loss (considered actual
damages such as loss of income and medical bills), and non-economic damages
(including pain, suffering, and disfigurement). In 1975, California legislators put a cap of $250,000 per
claim on the amount that could be awarded for medical malpractice claims
related to non-economic awards.
3 According to the American Medical Association, premiums in
California for physicians have risen 167% as compared to premium increases of
505% in other states. 4 In September 2003, Florida implemented cap limits (similar
to California) on non-economic damages at $500,000 per practitioner, with the
exception of cases with catastrophic injury such as a permanent vegetative
state. 5 Several other states
now have similar legislation on tort reform. 6
THE OTHER SIDE
Some
groups such as the Foundation for Taxpayers & Consumer Rights, a consumer
advocate group, argue that the true stabilization of premium rates in
California came as a result of California proposition 103 that passed in 1988,
and not the cap limits on non-economic awards. Proposition 103 implemented
insurance reform measures. 7
Several
studies done by universities and legal organizations with support of citizen
groups are suggesting that insurance premiums rise or fall because of swings in
the economy. Some of the studies did not find a direct correlation between the
rising amounts paid for malpractice awards and higher premiums. One study
showed that there were cases in which the average amount paid out from trials
had decreased while insurance premiums increased.7
Public Citizen, a consumer
advocacy group that represents a public viewpoint to Congress, argues “that a
historical pattern has been established that insurance rates rise also based on
the investment market, stating this is not the first time that medical
malpractice insurance rates have spiked upwards. Earlier ‘crises’ (in 1975-6
and 1985-6) similar to today’s ‘crisis’ were due to declining investment
fortunes and failed pricing practices of the insurance industry rather than an
increase in medical malpractice filings and awards. Then, as now, the insurance
industry covered its losses by raising rates dramatically, then blamed the
lawyers of innocent patients rightfully seeking compensation for
negligence-related injuries.” 9
In 1986, landmark federal legislation was enacted to help reduce the crisis of medical malpractice. With support from the medical community, the federal Health Care Quality Improvement Act (HCQIA) was passed by the US Congress. This act protects error data from legal discovery, specifically data that fall under physician peer review protection within hospitals as outlined in these intents: The increasing occurrence of medical malpractice and the need to improve the quality of medical care have become nationwide problems that warrant greater efforts than those that can be undertaken by any individual state.
1.
There is
a national need to restrict the ability of incompetent physicians to move from
state to state without disclosure or discovery of the physician's previous
damaging or incompetent performance.
2. This
nationwide problem can be remedied through effective professional peer review.
3. The threat of
private money damage liability under Federal laws, including treble damage
liability under Federal antitrust law, unreasonably discourages physicians from
participating in effective professional peer review.
4. There is an
overriding national need to provide incentive and protection for physicians
engaging in effective professional peer review. 10
LOOKING FOR BAD APPLES INSTEAD OF OVERHAULING VULNERABLE SYSTEMS
The belief behind the legislation is that the
incompetent or impaired physician is the root cause of poor quality. This
belief supports the concept of looking for the “bad apples.” The “bad apple”
concept targets individual blame, which is contrary to the foundation of the
Institute of Medicine’s Report, To Err is Human, Building a Safer Health
System, 11 which demonstrates that most medical errors stem from
system failures, not individual factors. The “bad apple” belief suggests that
if we rid the industry of the “bad” or incompetent players, our problems of
harm will be solved.
Intent one and intent three of HCQIA should
be examined together: (1) The increasing
occurrence of medical malpractice and the need to improve the quality of
medical care have become nationwide problems that warrant greater efforts than
those that can be undertaken by any individual state, and (3) This nationwide
problem can be remedied through effective professional peer review. In reality, the legislative intent of number
one and three have not been accomplished. 3
In addition, the “bad apple” theory goes against the
philosophy of the renowned quality leaders. Edwards Deming and Joseph Juran
both have clearly established through their work that the root causes of poor
quality stem from process variation and not from a few “bad apples.” Edwards
Deming stated, “Organizations should focus on bad processes, not bad people.
94% of all errors are system errors, not employee errors.” 12
FEWER WAYS TO DO THE “SAME THING”
Performance improvement builds on the principle that with greater variation – numerous ways to accomplish the same goal – the more likely outcomes will be diverse and unpredictable. Process variation can be deadly when it comes to establishing patient safety practices. For example, as patients are being prepared for surgery and a hospital uses multiple ways to prepare patients for the operating room, depending on who is working or the day of the week, then the chance for errors rises substantially. The use of standard protocols helps to diminish errors. This quality foundation is the same basis for improving patient safety and ultimately assisting in the reduction of errors in most hospital processes. Although more research is needed, medical malpractice litigation may be reduced if improved systems are implemented that allow for the reduction of process variation in safety practices.
Most of the legal
settlements in medical malpractice claims do not mandate system changes or
quality improvements to prevent future medical errors. The medical malpractice
issue is significant in the US, and parties are extremely passionate on both
sides of the argument. There are no easy answers to solving the issues related
to perceived or real malpractice or neglect. There are clearly times when
patients and families need restitution, apologies and closure that may be
solved through litigation.
Tort reform is a
critical issue; however, it alone will not stem the tide of errors. Health care and hospitals will continually
benefit by increasing the use of process improvement to reduce variation and
diminish medical errors to enhance safer, quality systems. Improving health
care systems with the use of technology and increased quality improvement
principles will likely have the most significant impact on enhancing patient
safety.
References
1.
Wilbourn SL. (2003, February 11). Testimony
before the United
States Senate Committee on the Judiciary, Patient access crisis: The role of
medical litigation. Who will deliver America’s babies? The impact of
excessive litigation. Accessed
2.
Albertm T. (2004, August 23) No state immune to
laibilty stress. AMNews. Retrieved September 11, 2004 from
http://www.ama-assn.org/amednews/2004/08/23/prl10823.htm
3.
Berntsen KJ. A patient’s guide to prevent
medical errors. Westport, CT: Praeger
Publishing; 2004.
4.
Albert T. (2003, March 3). Doctors rally against
rising liability rates. AMNews. Retrieved September 6, 2004, from http://
ama-assn.org/amednews/2003/03/
5.
McMillen
SR, Rehart RP, Voght M. (2004, April 29). Florida tort reform. New caps on
damages. Retrieved
6.
Spigel S. (2003, September 10). Medical malpractice
2003, recent state medical malpractice actions. Retrieved
7.
The Foundation for Taxpayers and Consumers
Rights. (2003). Insurance industry reform, not liability limits, lowered and
stabilized insurance rates in California. Retrieved
8.
Americans for Insurance Reform. (2003, January).
Medical malpractice stable/loss unstable rates in West Virginia. Retrieved
9.
Public Citizen. (2002, July 30). Letter from
public citizen in opposition to the McConnell Medical Malpractice Amendment.
Retrieved September 6, 2004, from http://www.citizen.org/congress.civjus/medmal/articles.cfm?D=8100
10.
The Health Care Quality Improvement Act.
Public Law 99-660. (1986). 42 USC sec 11101. Title 42.
11.
Kohn LT, Corrigan JM, Donaldson MS, eds. To err is human: Building a safer health system. Washington DC: Institute of
Medicine, National Academy Press; 2000.
12.
Demings, E (1986) Out of crisis. MIT Press. Boston, MA
Preventingmedicalerrors.com.
Copyright
© 2004 [PME]. All rightsreserved.
Revised:September 01, 2008.
13.