Risk management has been around for centuries. In ancient times, there were oracles and soothsayers. In the 1950s, risk management became a science. Nevertheless, 75 years later, a medical malpractice lawsuit is still a problem. An unknown number of claims are reviewed by lawyers, but 85,000 lawsuits are represented. Of these, 66.6 percent are frivolous.
It stands to reason that many meritorious cases are reviewed but are never represented. There are 343.6 million Americans, and each stands a 0.025 percent chance per year of being a claimant in a medical malpractice lawsuit. There are 1 million doctors, and each has an 8.5 percent chance per year of being a defendant, which is 340 percent higher. Each lawsuit costs about $654,000.
Medical errors occur during medical interventions. So do random errors of nature. Unfortunately, a random error of nature is clinically indistinguishable from a medical error. For claimants, this is why complications incite suspicions of medical malpractice.
For risk managers, one would think that, because of its evolution over the years into a science, risk management would have impacted medical malpractice. It does not take an oracle or soothsayer to know that any complication, whether from a random error of nature or a medical error, needs to be regarded as a potential medical malpractice lawsuit.
As long as there is a settlement value, plaintiff attorneys could not care less if a complication is an error of nature. This is how they make their money. Neither could defense attorneys. They are paid by malpractice carriers—win, lose, or draw.
Medical experts are retained by both. As long as they are paid for their opinions, they could not care less for whom they opine.
For malpractice carriers, as long as the claims-to-premium ratio keeps them solvent, they, too, could not care less if a claim has no merit.
The health care system is horizontally integrated networks of hospitals, medical institutions, and physician groups. Some networks are self-insured rather than traditionally insured. When a malpractice lawsuit is filed, not only is the network a codefendant as a matter of agency law, but, if self-insured, the network is also the insurance carrier.
The prime objective of the network is cost-effective health care. These networks often require adherence to “resource-based practice guidelines,” also known as “best practices.” A practice guideline is not a standard of care. It is, essentially, a shortcut of the standard of care designed to lower costs. As long as care is cost-effective, networks could not care less if a best practice is a standard of care. Neither could they care less if practitioners are more vulnerable because, as a condition of employment, practitioners comply with “best practices.”
Practitioners have the most skin in the game. They should care. Although usually the first to know of an unfortunate result, they take no action until they are served. Even then, they accede to the interests of defense attorneys, who are paid by malpractice carriers; malpractice carriers, who are paid by networks; and networks, which employ them and pay their premiums. As long as their premium is paid, they could not care less if a complication is an error of nature.
Ultimately, when a culture develops in which there is greater emphasis placed on cost than on quality, a disproportionate number of medical malpractice claims have no merit, and many that do have no representation.
The instinct should be advocacy for the standard of care. Evidence that casts doubt on an allegation of negligence only requires 50 percent plus a scintilla of probability that a complication is an error of nature rather than a medical error. Although a medical error is clinically indistinguishable from an error of nature, there is a distinct characteristic that transcends the clinical. Any complication following a medical intervention, on which this characteristic is, or is not, found, is enough evidence to prove—or to cast doubt on—whether the medical intervention is the same as the standard of care.
The trend, however, is to forego advocacy so as not to jeopardize a network. After all, advocacy asserts competence. Competence points to practice guidelines as departing from standards of care. Accordingly, JAMA recently redefined practice guidelines. In its opinion, the evidence upon which practice guidelines are based is competence. What must they be thinking? This is a complete fallacy; practice guidelines are called “resource based” because they are based on cost. The standard of care is based on competence.
In what possible universe would even an oracle or soothsayer in ancient times advise, “A conflict is coming; you must do nothing to protect yourself”? Yet, this is exactly what the AMA has done for us.
Howard Smith is an obstetrics-gynecology physician.
