Troyen A. Brennan, MD, JD, MPH; Michelle M. Mello, JD, PhD, MPhil*
*This paper was prepared by Troyen A. Brennan, MD, JD, MPH, and Michelle M. Mello, JD, PhD, MPhil, for the Quality Grand Rounds series. Robert M. Wachter, MD, prepared the case for presentation. The case and discussion were presented at the University of California, San Francisco, on 4 December 2002.
Grant Support: Funding for the Quality Grand Rounds series is supported by the California Health Care Foundation as part of its Quality Initiative. The authors are supported by general institutional funds.
Potential Financial Conflicts of Interest: None disclosed.
Requests for Single Reprints: Troyen A. Brennan, MD, JD, MPH, Brigham and Women's Hospital, 75 Francis Street, PBB4, Boston, MA 02115.
Current Author Addresses: Dr. Brennan: Brigham and Women's Hospital, 75 Francis Street, PBB4, Boston, MA 02115.
Dr. Mello: Department of Health Policy and Management, Harvard School of Public Health, 677 Huntington Avenue, Boston, MA 02115.
The system of tort liability for medical malpractice is frequently criticized for poorly performing its theoretical functions of compensating injured patients, deterring negligence, and dispensing corrective justice. Working from an actual malpractice case involving serious injury but no apparent negligence, the authors explore these criticisms from the perspectives of both the plaintiffpatient and the defendantphysician. They then examine the tort system through the lens of patient safety and conclude that the tensions between the system and patient safety initiatives suggest a need to reexamine our attachment to adversarial dispute resolution in health care. They propose targeted reforms that could improve the functioning of the system and create incentives to improve safety and quality.
For a list of questions and answers from the Quality Grand Rounds conference, see the Appendix.
Dr. Harris: In my mind, it was a matter of what would be safest. I really don't have a lot of experience with awake intubation, and I knew that a pulmonologist was already involved in the case, so it was a really easy decision from my standpoint to get the patient transferred to the ICU for intubation.
Dr. Harris: I was sitting in the ICU and my partner calls me up and says, You're getting sued, and that's why I'm leaving medicine.
Table. Comparison of Tort and Administrative Compensation Schemes
Mr. Dean: In a case like this, involving a patient who was already in the hospital, who has an arrest and anoxic encephalopathy, one of the very significant perceptual issues we have to consider is the fact that there was a catastrophic outcome, and to some jurors, catastrophic outcomes may equate with somebody must have messed up.
Mr. Dean: The concern was that the jury could be so overwhelmed with sympathy for what occurred to the patient and the patient's family that they would feel it would be impossible to say no Even if you are assessed a very small percentage of responsibility by the jury, given the huge potential damage exposure it could potentially represent a judgment in excess of your malpractice coverage. Mrs. Taylor and her family could come after the physician and force her into bankruptcy, resulting in financial ruin for Dr. Harris.
Dr. Harris: From a hospital standpoint, to my knowledge, it was never discussed with any of the physicians. It never came up. I guess the things that come to mind are intensive care unit transfers and code blue situations but if they changed things in regards to this case, that would be news to me I don't really know the risk management people I know they exist, but who they are and their role and function in a situation like this or day to day, despite the fact that I spend up to 120 hours in the hospital, is just not discussed and I've never met them face to face.
Mr. Dean: If we reinvent the system and take lawyers completely out of the equation is that going to result in safer medical care? One argument is that if physicians know that their care is not going to be subject to scrutiny that can actually decrease patient safety. On the other hand, I think that a reasonable argument can be made that if a physician or health care provider knows that every judgment is not going to be subjected to intense microscopic scrutiny under the retrospectoscope, they are going to be more liberated and free to practice what they see as good medicine, and not be subject to second-guessing at every turn, and that can improve patient safety. It seems to me that until we have some hard data comparing safety in a pure no-fault system, we are not going to know the answer.
Brennan TA, Mello MM. Patient Safety and Medical Malpractice: A Case Study. Ann Intern Med. 2003;139:267–273. doi: https://doi.org/10.7326/0003-4819-139-4-200308190-00009
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Published: Ann Intern Med. 2003;139(4):267-273.
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