Medical error and liability: A changing legal landscape

Medical error and liability: A changing legal landscape

Meeting the challenges: First of two articles
Feb 01, 2008

The commission of errors is an unavoidable part of human existence.1,2,3 While errors might be as benign as misplacing car keys, their existence in the medical arena might be disastrous, causing injury or death.

Some industries, such as aerospace and nuclear power, have implemented systematic approaches to error reduction, but such approaches have not yet been widely adopted by the medical profession. Consequently, error rates in medicine remain unacceptably high. The risk of medical errors is compounded by a changing legal system that increasingly focuses on what might have been (rather than what usually is) done to prevent a mistake.

In this two-part series, we will discuss the problems of medical error and liability, the implications of technology on error reduction and prevention, the trend in modern malpractice law to replace a standard of care enforcing what is customary in the industry with a reasonable-doctor standard and the ways in which the veterinary profession might use technology to safeguard itself against liability while providing the best possible care for its patients.

Sounding the alarm

Studies of error rates in the human health-care industry are sparse but alarming. A 1991 Harvard Medical Practice retrospective population study revealed a rate of iatrogenic injury of 3.7 percent of patients hospitalized in New York State in 1984.4,5 This value equals 98,609 patients in New York alone. Worse yet, nearly 14 percent of these injuries ended as fatalities. Application of this rate to the United States population of hospitalized patients would equal approximately 180,000 patients suffering death due to iatrogenic injuries each year.5 A similar study documented an adverse event rate of 2.9 percent, with death resulting in 6.6 percent of such cases.6 The U.S. Institute of Medicine estimates that between 44,000 and 98,000 human patients die each year as a result of preventable medical errors.1

Another study of intensive-care-unit errors determined that the hospital staff was functioning at a 99 percent proficiency level.7 The apparent excellence of this number deceives, as the resultant 1 percent failure rate is much higher than tolerated error rates in the aviation and nuclear-power industries.7

In fact, an error rate of "only" 0.1 percent would translate to two unsafe plane landings per day at O'Hare, 16,000 pieces of lost mail every hour and 32,000 bank checks deducted from the wrong bank account every hour.2 Simply put, current error rates in the human health-care field would be considered catastrophic in many other industries.

Besides the physical consequences, such errors entail psychological, public relations, employment and legal consequences. It is a common occurrence in medicine for the commission of errors to be equivalent in the mind of the erring party to ineptitude, inadequacy or flaws in their character.1,7,9,10 Such errors might earn ridicule and scorn by peers. Ultimately, the discovery of an error may precipitate professionally debilitating consequences in the form of a medical malpractice suit, the loss of medical license9 or withdrawal from the practice of medicine.

Public responses to medical error might parallel the ostracism seen in professional circles. As it becomes known that specific practitioners committed harmful errors, it is likely that patients will avoid those practitioners. Individuals and the institutions in which they work share the burden of these consequences.

Key message for veterinarians

While studies of error rates in veterinary medicine have not been published, it is reasonable to include the profession in our discussion.

Both human and veterinary medicine embrace core values that are nonconducive to the reporting and correction of errors. Cultural normalcy in medicine expects perfection. Medical schools foster such expectations, subsequently reinforced throughout practitioners' careers.9,10 Perfection — by definition unattainable as it relates to humans — is the benchmark by which all members of the medical profession are judged.

This expectation results in the tendency for errors to be hidden, and not discussed by peers out of professional courtesy.9,10

Error management in such an environment stresses individual punishment, rather than the address of underlying causes.9

All too often, error is associated with a "badge of shame," as well as a high risk of legal entanglement in malpractice proceedings. The assumption is that such proceedings reduce error, but there is no evidence of that.