Increased litigation will do nothing to reduce the rate of medical misadventure

In a recent decision the Privy Council has ruled that a New Zealand patient dissatisfied with a diagnosis can take legal action against the doctor responsible. Without commenting on any individual case, surely such actions must make doctors more careful and overall will improve the standard of medical treatment?

Not so; litigation in medical matters has had a disastrous effect overseas. New Zealand has been largely protected by the Accident Compensation scheme (with all its faults), so many people here do not realise what a terrible step is being contemplated. In particular medical litigation will make medicine more expensive. The US has in many ways an excellent medical system, with one major flaw; it hosts a whole branch of the legal profession as a parasite. Thus it is enormously expensive, and so unaffordable for many people.

I recommend an article originally published by the New Yorker in 1999 and reprinted in The Best American Science Writing 2000 (ed. James Gleick): When Doctors Make Mistakes, by Atul Gawande. This is partly an account of how the author made a medical error and of why errors occur, but explains how litigation does nothing to improve a medical system. It also contains a lot of interesting data.

It was estimated that in the US around 120 000 patients die each year, at least partly because of errors during medical care. In November 1999 (after the publication of this article) the National Academy of Sciences reported that medical errors caused between 44 000 and 98 000 deaths per year.

A 1995 study on hospital drug administration found that an error occurred about once per admission. Although nearly all were minor and did not cause a problem, about 1 per cent had serious consequences. In New York State another review of 30 000 admissions found that nearly 4 per cent suffered complications from treatment that prolonged their hospital stay, resulted in disability, or caused death.

Thus errors in the USA are not rare, but would they be more frequent without the threat of litigation? The evidence suggests not and it contains some surprises. Some in the legal profession have claimed that their role is to find and expel incompetent and dangerous doctors. However most surgeons are sued at least once in their careers. Repeat offenders are not the problem, practically all make some mistakes. A study on the perpetrators of medical error found no group of dangerous doctors. Instead errors were normally distributed across the profession. This implies a single population so it is pointless to look for a subset that could be eliminated to leave behind a better performing profession.

It is hardly surprising that litigation fails to reduce medical error rates when one sees how it is applied. In the US only 2 per cent of patients who received sub-standard care ever sued, while only a small minority of those who did sue had actually been the victim of sub-standard care. Many of those who sued successfully, were not actually victims. It was found that the chances of a patient winning a suit depended primarily on how poor the outcome was, regardless of whether the outcome was caused by error or negligence.

The sums awarded as compensation are often huge; but even if a surgeon wins and so pays no compensation, his/her legal costs are still enormous. Thus doctors must carry enough insurance to cover these possibilities. Even the best surgeon must prepare for the worst as he or she can expect to be sued at least once in a career. The insurance premiums are naturally very high, and of course these must be covered by the fees charged.

Closer to home in Australia there has recently been a crisis in the medical profession, with groups of surgeons threatening to cease work unless some Government action was taken. The problem grew with ever-increasing sums being awarded to successful litigants. Surgeons in particular were required to take out ever-larger insurance policies. A relatively small insurance company offered cut rate policies — but a few cases with very high awards against medical staff showed that they had miscalculated; they had set their premiums far too low. The financial collapse of this company and then the insolvency of a very large insurance company resulted in a number of medical staff being without any insurance cover. The new policies being offered them involved premiums far higher than those they had been paying. Their professional fees were too low to allow them to meet these extra charges.

The Government had to take emergency measures to ensure that surgery could continue. This example from just across the Tasman shows clearly how medical litigation has a dramatic effect on the cost of medical services.

Some recent actions suggest that people in New Zealand are already aware of the dangers they might face. In the far North, long-standing obstetrical practices were suddenly stopped resulting in public protest. But members of a hospital board may feel they could be held liable if procedures they had allowed, resulted in misadventure. In the same district, obstetricians had allowed anaesthetic procedures by midwives after a telephone consultation; this was also stopped. Perhaps they could be liable for any unfortunate result. One can hardly blame medical staff — to be held liable for one’s own action taken in good faith is bad enough; to be held liable for somebody else’s mistake is a dreadful possibility.

In his essay Atul Gawande identifies how medical misadventures can be reduced. This is done not by targeting individuals but by targeting practices. One lesson is that small hospitals are the least safe — something which is known to be the case in New Zealand but has never been properly explained to the public.

The major lesson is that everybody makes mistakes at times; the system must be organised to make it more difficult to make mistakes, and to ensure that the consequences of mistakes are made as benign as is possible. Forcing medical staff to be defensive, so that they will not admit error for fear of horrendous legal consequences is the very worst method for tackling the problem of medical misadventure.

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