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  Malpractice: Overview

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Dawn Lipthrott, LCSW
Ethical Health Partnerships
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Congress is expected to vote on medical liability reform in Fall, 2005. Take action to support current bills proposed. Use YOUR voice to protect your healthcare and hold all parties to ethical partnership.

In this and other articles, we will explore the area of malpractice and give you suggestions about how you can take action.

Malpractice: Overview

To better co-create ethical health partnership, each person and group must become mindful of what they put into that space between by their words and actions. When it comes to the area of malpractice, again there are many factors that contribute to a distressful climate in the space between us, and weaken the system. How do we make it better? What steps can we take in that direction? Many!

What IS malpractice?
Malpractice occurs when a physician, hospital, nurse or other person acts or fails to act in a way that causes a new injury to a patient or aggravates an injury to a patient AND fails to meet the standards of care that other physicians/nurses/hospitals in his or her specialty would normally provide.

It is important to distinguish negative outcomes and incidences from malpractice. Sometimes patients do not get well. Sometimes, in spite of efforts, they get worse. Sometimes negative reactions to treatment or procedures occur.
A negative outcome is not necessarily negligence or malpractice.
An error is not necessarily negligence or malpractice.
An adverse reaction by a patient to a treatment or procedure is not necessarily negligence or malpractice.
An injury that occurs during treatment is not necessarily negligence or malpractice.
A patient's failure to follow up on treatment or office visits with subsequent negative consequences is not physician malpractice.
The death of a patient is not necessarily negligence or malpractice.

These things MAY be due to negligence, but most often are not. Whatever the reason for injury, the needs of the injured must be addressed.

What does the injured patient need and deserve?

When a patient is injured due to error on the part of any healthcare professional, that patient's needs to be addressed in a timely manner. What are some of the needs an injured patient has:
1. Medical care to do everything possible to repair the injury or minimize the impact of it.
2. Care and concern on the part of the physician and the healthcare team.
3. Honesty and complete information of what happened.
4. An expressed apology that the injury has occurred.
5. Investigation of what led to the error and a specific plan to help prevent it in the future.
6. Compensation for any present or future economic loss as a result of the injury.

In studies about why some people who are injured sue, and some do not, the researchers found that while money is a factor for some people, it is not the most common deciding factor. A breakdown in communication with the physician (often prior to the injury) was cited in over 60% of the cases surveyed, leaving the patient with the belief that the physician did not care, or was deliberately witholding information or misleading them. Many sued to "discover the truth about what happened" and also with a desire to make sure that no one else experiences that. (Sources: Carol B. Liebman and Chris Stern Hyman ADR Demonstration Project 2004, Lester et al. West J Med. 1993; Levinson et al JAMA 1997

Can this be an ethical process?
Yes, but not as long as things stay the way they are. The current system is damaging for both patients and physicians. You hear alot about malpractice reform and reform of the current system IS necessary. At the same time, more energy needs to be put into designing and implementing alternatives methods of addressing an injured patient's needs and being fair to physicians who feel the impact of what's wrong with the system, even when they have never been named in a suit. Those negative impacts trickle down to affect the quality, accessability, and costs of healthcare for everyone.

Negligence or malpractice means that a physician failed to act in a way that the majority of physicians in his or her specialty would have acted in a similar situation and in failing to do so, they caused injury. Sometimes that happens. Many errors that cause injury to patients are not the result of physician negligence, but are systemic errors. Those also need to be addressed. Physicians, nurses, patients, hospitals, and others need to immediately target common areas of error that occur in each party's areas of responsibility, create plans for prevention, and implement them.

(See Patient Injury: An Ethical Health Partnership Approach)

Some effects of malpractice problems for all of us who are patients:
Most patients express concern about rising malpractice costs, but most of us have no idea how much physicians have to pay or how that impacts them as our caregivers and impacts us as patients.

If you live in certain states, like Florida, Pennsylvania, and others, the physicians' malpractice insurance costs have skyrocketed to absurd amounts. In 2003 the average rate for a general surgeon in Florida was $174,000 ($227,000 if they were in South Florida). Other specialities like OB-GYNs and neurosurgeons paid even more. Yet, even with these excessive premium costs, the price continues to increase every year (usually double digit percentages). Back in 2002, physicians spent $6.3 BILLION to obtain malpractice liaibility insurance. ( Source: US Dept. of Health & Human Services, Confronting the New Health Care Crisis, July 2002). Here we are in 2005 with the problems only growing worse.

More and more physicians in Florida and other states with high premiums are 'going bare' which means they are having to drop malpractice insurance and self-insure. While they are not happy about it, it often is the only way they can afford to stay in practice. (If you are one who believes doctors have excessive incomes, please read the articles in our Reimbursement section!) Other physicians have closed practices, retired early even though they liked practicing medicine, or have restricted certain services. As I have read about the malpractice crisis, I often see references by attorneys and some of their sponsored groups saying that reduced access to healthcare is exaggerated by physicians to scare patients. I don't know what states they live in, but I know that physicians are closing practices in Florida, Pennsylvania and other states. I personally have been to two OB-GYNs who have closed their practices. A local physician recently told me that he knows close to 10 physician friends in Central Florida in their 50's who have either just closed their practices or have moved to states with lower costs. I also have spoken to several physicians who are no longer in practice and all cited rising malpractice costs and lower reimbursement/other insurance tactics as the primary factors.

In addition to the financial costs, there are emotional costs for physicians, both those who are named in a claim, and also all who live with the threat of lawsuits hanging over their head every moment of a work day. Imagine what it is like to wonder if the next patient you see will be the one who files a lawsuit . . . no matter how careful or thorough you are in your work? Even if physicians are never guilty of negligence or malpractice, many are named in lawsuits simply because their names appear in the chart. The claim against them may be dismissed or dropped, but the emotional and financial costs are significant. It has been estimated that the costs of being dropped from a list of defendants, even in situations where the doctor never was involved in the case, average around $20,000. An average cost of defense if the claim goes to a jury is $85,000 (An Analysis of the Impacts of the Medical Malpractice System from the Washington Policy Institute). The emotional stresses and fears of simply practicing in a litigious society (and even more so if a physician has had the experience of being named in a suit) impact both quality and cost of care for both physician and patient.

There are financial and emotional costs to patients who are injured, whether or not it is due to malpractice. Studies have repeatedly shown that most injured patients do not file malpractice claims. Yet some of them need help. Some do not want to sue, or their injury does not seriously impact their life. Others want to sue, but don't have a case for malpractice since most injuries are not due to substandard care. Some want to, but attorneys do not consider it lucrative enough. What happens to those who have ongoing medical needs and economic loss through no fault of their own, but whose case simply doesn't qualify?

The costs of malpractice contribute to rising health costs, rising health insurance costs (which also impacts the increasing number of uninsured) and more. In Miami, Florida, it is estimated that $2000 is added to the cost of every birth because of malpractice costs and that trend occurs in other procedures. (Source: ) Studies estimate that defensive medicine costs around $50 BILLION annually (Source: Kessler, D; McClellan, M, "Do Doctors Practice Defensive Medicine," Quarterly Journal of Economics, 111(2): 353-390, 1996) This was 8 years ago and the climate has grown more defensive. Defensive medicine is when doctors order tests, procedures, or visits, or avoid high-risk patients or procedures primarily (but not necessarily solely) to reduce their exposure to malpractice liability.

Who is to blame . . .and what can we do?
When I read articles about the causes of increasing malpractice premium prices for physicians, the discussion usually focuses on the need for tort reform or a need for insurance reform. Physicians say that the problem is some combination of increasing awards and number of claims, frivolous lawsuits, and attorneys' greed. They believe the laws affecting malpractice claims need to be reformed. They are right and tort reform is one part of the solution. Attorneys say that the problem is a combination of insurance companies making bad investments and doctors making mistakes. They are right and insurance reform, and commitments to improve patient safety are parts of the solution. Insurance companies blame attorneys and more quietly blame doctors or sympathetic juries giving excessive awards. They, too, are right. While all those factors contribute to the problem, another factor that people don't talk about, but need to, are patients themselves. We also contribute to the problem. We often fail to educate ourselves, we don't ask questions, we sometimes fail to take responsibility for our own actions or inactions, we sometimes have uninformed and unrealistic expectations, and then want to blame someone when we experience a negative outcome. Our becoming more informed and responsible patients is also part of the solution.

Each points the finger at someone else and reduces a complex issue to simplistic sound bites. My belief is that all contain some truth, and that none of them look at the multiple factors that continually create the system by action, reaction, and failure to take action. Blaming someone else is guaranteed to lead to increasing rates and problems. Blaming keeps us victims. This does not mean that other people or groups or structures need to be held accountable for reducing their contribution, but each individual, profession, or group should start with itself.

Ethical health partnership starts with OWNING instead of blaming:
As a marriage and relationship therapist, every day I have couples, friends, business partners come into my office wanting to recite their list of grievances with the other. And while it is important for the partner to hear those frustrations and concerns, I start by having each look honestly at themselves and what they do or fail to do that contributes to the distress. I firmly believe that is where we need to start in reforming healthcare.

By clicking on the following links, you can see some of the ways all of us contribute to the problem. All of us, especially people in these groups could add and refine to the ways they contribute. (And I hope some of you will let me know your thinking, especially about your own group!) By owning our responsibility for the problem, we empower ourselves, as individuals and groups, to contribute to the solutions.

At the bottom of each page, you will find a link to a Take Action page related to steps toward solutions. Even in those actions required by the groups themselves, we as patients are vital to not only addressing the parts WE contribute, but to encouraging and challenging each group to take charge of their contributions as well.

What contributes to the problem? (Click on each link (as we make them active) to review contributions, issues, and actions needed)
Legal System:
     a) Tort Reform
(Congree is expected to vote on liability reform before the end of March, 2005. Read this and then take action.
Patient Injury: An Ethical Partnership Approach
Insurance industry and regulation:
Lack of fundamental sense of ethical relationship

The rationale for malpractice actions is to a) take care of the patient who has been injured and b) to prevent similar situations from happening to someone else. The current system does not do either very well and other options need to be explored.

All of us can do better and it is time to co-create more ethical partnerships to address all the pieces of the puzzle.

List of articles on medical malpractice located on other sites

© Dawn Lipthrott, Ethical Health Partnerships, 2004
May be copied and distributed as long as this identifying information is retained on copies.)