Professional Negligence: When Practice Goes Wrong

Curtis E. Harris; Warren Richards; Jack E. Fincham

Disclosures

The Annals of Pharmacotherapy. 2006;40(7):1377-1382. 

In This Article

Discussion

Because ordinary negligence is carelessness, and since all humans are sometimes careless, it is impossible to defend against all human error. It is therefore impossible to provide health care without error, despite our personal sense that we are doing so on nearly all occasions. The illusion that our practice is (nearly) error-free is exactly that: an illusion. Careful studies of human error and, specifically, error in health care, point out that the source of most error is not a lack of personal concern or care, nor of skill or training, but of systems failures, largely out of the control of the healthcare provider. It is literally true that most error cannot be solved by the personal resolve and concerted effort of an individual provider to do well. As essential as professional integrity and training are, those qualities will not solve the ongoing problem of error in the provision of health care.

A number of strategies for avoiding error, limiting liability, and surviving a malpractice suit have been proposed. The literature on these issues is voluminous and impossible to summarize easily. That said, 2 thoughts come to mind as more important than others. One concerns avoiding error; the other concerns surviving a malpractice suit.

First, avoiding error requires objective, thoughtful restructuring of how we provide health care. Systems analysts advise hospitals, incident reports and peer review attempt to identify problems proactively, and manufacturers of drugs and medical devices build in safety. However, none of these efforts reach into our practice. We need to begin recognizing risks and developing systems that include redundancy to prevent errors in our practices. Defending a malpractice suit normally involves a bad outcome for which there was some intervention. Avoiding adverse events, with or without fault, is our best defense; our best survival strategy.

Second, when sued for malpractice, get good legal and personal counseling. Most malpractice carriers retain experienced attorneys who provide good legal defense. If you have a choice, select your malpractice carrier based on their legal panel. However, the most ignored injury of a malpractice suit is the emotional injury caused to the provider. We tend to blame ourselves for bad outcomes that have little to do with what we did. In addition, the isolation and shame that accompany a malpractice suit can affect both the professional and personal life of any professional. Experience has clearly shown the value of such counseling but has also documented its underutilization by most practitioners. Help may be available with a simple phone call and can dramatically help us survive malpractice.

The legal significance of the word "negligence" varies with the behavior that is being described, ranging from ordinary negligence to criminal negligence. Health care in the US is highly regulated and is under increasing public scrutiny. As the public expectations of health care and research science increase, the legal standards that define negligent actions become more stringent. More than ever, healthcare professionals need to adhere to the highest levels of ethical and professional behavior to avoid liability beyond ordinary negligence.

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