Eric Schneiderman

Time to Reduce Medical Errors with Full Disclosure

Cross-posted from DMI's Tort Deform: The Civil Justice Defense Blog

Each year in the United States, there are between 44,000 and 98,000 hospital deaths and another 300,000 injuries attributed to preventable medical errors. New York's hospitals are no exception. In fact, a 2006 study of medical errors by the private research group HealthGrades rated New York State's hospitals the second worst in the country.

Medical errors are not a new problem in New York State. In 2005 the New York Public Interest Research Group issued a report entitled "Empty Promises: The Failure of the New York State Health Department to Monitor Medical Errors." That report was a follow up to findings from five years earlier that thousands of patients in New York State were dying from medical errors. When those findings were released, the New York State Department of Health committed to reducing medical errors by half. Five years later DOH had not only failed to meet its goal, but had no plan in place to even try.

But the fault does not only lie with inaction on the part of the DOH. Despite the fact that a small number of doctors who are repeat offenders cause a large number of the injuries resulting from medical errors, hospitals and medical boards are slow to discipline them. An analysis by Public Citizen of data in the National Practitioner Data Bank Public Use File for the years 1990 to 2005 found that two thirds of doctors who had made ten or more malpractice payments were never disciplined by their hospitals or medical boards. In part because of this failure of institutions to act against the worst offenders, the situation continues to get worse.

To help mitigate this problem, I am the sponsor of legislation in the New York State Senate, S.2685, which would require doctors to inform patients (or their representatives where appropriate) when significant medical errors take place.

From an ethical standpoint this is a no-brainer. The AMA's ethical guidelines state: "Situations occasionally occur in which a patient suffers significant medical complications that may have resulted from the physician's mistake or judgment. In these situations, the physician is ethically required to inform the patient of all the facts necessary to ensure understanding of what has occurred...Concern regarding legal liability which might result following truthful disclosure should not affect the physician's honesty with a patient." (link)

In theory, doctors agree with these guidelines. Research has found that at least 70% of doctors feel that medical errors should be disclosed to patients or their families, but in practice, doctors only informed patients or their families that a medical error had occurred in approximately 24-28% of cases.

And New York State law does little to encourage physicians to uphold the AMA guidelines. Legally, New York State only requires that physicians notify the state Department of Health - not the patient - when an error takes place.

But patients who have been the victim of a medical error need to know all the facts about their condition in order to make a judgment about whether to continue treatment with the same physician in light of the incident, and if they choose not to, to discuss all aspects of their condition with their new doctor.

In cases when a medical error amounts to malpractice, it is only fair for the victims to be informed and to receive appropriate compensation. Any other view endorses leaving innocent persons with a potentially disabling injury without any remedy or financial support.

Of course not all medical errors amount to malpractice, and certainly not all bad outcomes are the result of malpractice, or even of errors. Medical treatment is an inherently uncertain thing. There are many situations in which reasonable medical professionals can, in good faith, disagree about the best course to take. Even in circumstances for which there is strong expert consensus about the proper course of treatment, the outcome is not guaranteed. Malpractice differs from these situations. The definition given in jury instruction is as follows:

Malpractice is professional negligence and medical malpractice is the negligence of a doctor. Negligence is the failure to use reasonable care under the circumstances, doing something that a reasonably prudent doctor would not do under the circumstances, or failing to do something that a reasonably prudent doctor would do under the circumstances. It is a deviation or departure from accepted practice. (link)

When a failure to use reasonable care, or a departure from generally accepted practice does occur and it results in serious complications or even the death of a patient, full disclosure of the error is critical.

Almost no one argues that, ethically, full disclosure is the right thing to do, but there are two major arguments made against such a policy on more practical grounds: that there will be more malpractice claims and payouts, and that doctors will be charged higher malpractice premiums as a result.

The argument that disclosure would drive up malpractice premiums is not only ethically suspect, but it ignores substantial evidence of what really drives increases in insurance premiums - for malpractice and other types of insurance.

Ethically to argue against disclosure of real errors in order to keep premiums low is essentially to say that victims should be denied justice so that bad actors can get a free ride. If frequency of errors and malpractice were driving insurance premiums up to burdensome levels, then the solution would be to reduce such errors and malpractice - not to deny justice to people who have been wronged.

But the reality is that numbers of malpractice claims and the amounts of awards paid out are at most a minor factor in determining insurance premiums. Similarly, medical malpractice "losses" (defined as medical malpractice verdicts, settlements, legal fees, etc.) account for less than 1% of total U.S. health care costs, and the cost of all medical malpractice premiums likewise amounts to less than 1% of total U.S. health care costs in the nation.

Furthermore, studies have shown that insurance premiums have often gone up at times when payouts were flat, or even declining. Rather than responding to the volume of insurance claims, Americans for Insurance Reform has documented how insurance premiums are driven by investment cycles. Insurance companies make most of their profits not from premiums per se, but from the returns they reap on investing those premiums. When markets are performing well, insurance companies lower premiums to increase their pool of capital with which to invest. When markets perform poorly they raise premiums to help cover their losses and prop up their corporate earnings reports, usually citing a "litigation crisis" and calling for "tort reform" at the same time. Insurance reform advocates have dubbed this process the insurance cycle.

So while it would be unethical to deny victims of medical malpractice information about their health in order to shield the doctors who injured them from liability, its even worse to keep victims of medical errors in the dark in pursuit of an elaborate ruse on the part of insurance companies to cover their investment losses and blame the cost on malpractice victims - or more likely, "frivolous lawsuits". Ultimately, if medical malpractice insurance companies don't cover the costs of the medical errors of the doctors they insure, you and I as taxpayers are left with the bill by way of an increased drain on the public assistance these victims (especially the most severely injured) must often turn to for support.

On ethical grounds, for the health and independence of patients, and possibly even to reduce litigation costs for doctors and hospitals, it is time to address the high level of medical errors in New York State with a policy of full and prompt disclosure. The arguments against doing so simply don't hold water.

Eric Schneiderman: Author Bio | Other Posts
Posted at 1:42 PM, Apr 27, 2007 in
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