COMMENTARY

How Expert Witness Rules May Harm Defendant Doctors; and More

Wayne J. Guglielmo, MA

Disclosures

June 10, 2013

In This Article

Apologizing to Patients Continues to Be Controversial

Central to the patient safety movement are 2 related ideas. First, information about past errors helps to drive down the incidence of future ones. Second, to collect such data, provider cooperation is key.

Through the years, though, some patient safety advocates have worried that the current liability system may be undermining provider openness and transparency. After all, why identify, report, and discuss a medical error when the threat of a lawsuit looms so large? Now a study recently outlined in the New York Times takes a contrarian view.[3]

The study was conducted by Joanna C. Schwartz, JD, an Assistant Professor of Law at the University of California, Los Angeles. Schwartz argues that fear of litigation isn't the barrier to patient safety that many in medicine assumed it to be.[3] In fact, rather than casting a chill on frank and honest exchanges about medical errors, the threat of litigation may actually be assisting them.

In cooperation with the American Society for Healthcare Risk Management, Schwartz interviewed more than 400 hospital risk managers, claims management personnel, and quality improvement staffers in healthcare centers around the country and conducted dozens of additional interviews. What she discovered startled her:

"While hospitals historically took an adversarial and secretive approach to lawsuits and error, that has begun to change," Schwartz writes. She reports that 80% of the hospitals in her study have instituted an apology policy when errors occur. She also found that hospitals generally are "more willing to discuss and learn from errors with hospital staff."

A Change in Attitude

Why the about-face? Schwartz proposes several uncontroversial reasons, including the proliferating number of patient disclosure laws, stronger peer-review protections, and the dawning recognition among hospitals that prompt disclosure and early settlements reduce the cost and frequency of litigation.

But hospitals have also begun to glean valuable patient safety lessons from the very lawsuits they've been a party to, says Schwartz. Rather than simply viewing such suits as costly and time-consuming nuisances, hospitals have begun to mine them for critical data, especially regarding diagnostic and treatment errors, safety and quality concerns, and potentially risky procedures and problematic hospital specialty departments.

Hospitals are engaging in these patient safety activities, says Schwartz, not just in spite of the current liability system but also, in part, because of it. For this reason, she argues, reforms and initiatives that would place severe limitations on lawsuits may be counterproductive.

To be sure, not everyone agrees. For example, Common Good, a nonpartisan coalition for government reform, has advocated for liability reforms, including special health courts. However, in a subsequent letter to The Times, Philip K. Howard, Common Good's chairman, after noting that Schwartz had identified "a useful development" -- that hospitals are starting to be more open about their mistakes -- took her to task for leaping "to the conclusion that there's no reason to create a more reliable system of malpractice litigation."[4]

In another letter to The Times, American Medical Association President Jeremy A. Lazarus, a psychiatrist, added that, until the current system is fixed, "we will continue to see physicians afraid to share bad news with patients."[4]

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