Resistance to Change Drives Malpractice Claims

Attorney Steve Cohen is used to people calling him because they want to sue a doctor. What he’s not used to is when the caller is a prominent doctor.

She was a friend of his, he explains in an essay on KevinMD.com, who is board-certified in three specialties, and lives in Washington, D.C. Her mother, who lives in Florida, had been rushed to a hospital, and by the time the doctor got there, mom had been diagnosed, admitted and treated.

But she wasn’t doing well, and Cohen’s friend thought the problem was a medication error. She’s not licensed to practice in Florida, so she asked the doctor who had prescribed the medicine to review it, and consider adjusting it.

He declined, because it was a three-day holiday, and, as he told her, “I need a vacation too.”

So she found another doctor to examine her mother. He changed the meds, and her mother recovered.

But the daughter was furious, and when she called Cohen, she wanted to sue the first doctor and the hospital. It wasn’t about money, it was about fixing a system she found terribly deficient. Maybe a lawsuit would send a message strong enough to prompt institutional change.

Cohen helped her understand that a lawsuit probably wasn’t the best or most efficient way to effect the change or satisfaction she sought, and that filing a formal complaint with the Joint Commission on accreditation might be the better approach. The Joint Commission, as we’ve discussed, is a national organization that monitors and promotes hospital quality and safety.

But, as Cohen concedes, that, too, is a long shot for making substantive change.

“Unfortunately, a formal complaint by even as formidable a figure as [his friend] will probably have little impact,” he writes. “The medical community’s resistance to reform is notoriously passionate.”

He noted that last year, The Joint Commission reported that only 1 in 3 of the 3,300 hospitals it has accredited have achieved its “top performer” rating. (About 2,400 U.S. hospitals are not accredited by the commission.) Only 182 hospitals have maintained a spot on that list for three consecutive years.

The intractability to change drives some people to file – or want to file – malpractice lawsuits.

Dr. Donald Berwick, former head of the Centers for Medicare and Medicaid (CMS) and, before that, president of the Institute for Healthcare Improvement, launched an initiative about 10 years ago called the “100,000 Lives Campaign.” The point was to reduce the thousands of hospital errors that occur every year in the U.S.

The campaign asked hospitals to commit to six evidence-based interventions to save lives. It also would establish measurements to determine how many people actually benefited from the reforms. After 18 months, Cohen says, with fewer than 2,300 hospitals participating and implementing at least one of the changes, an estimated 122,300 lives would be saved over the next 18 months.

Two years later, Berwick launched the “5 Million Lives” initiative to significantly reduce illness, mortality or medical harm from such things as adverse drug events or surgical complications. It asked participating hospitals to commit to harm prevention measures for a two-year period, from 2006 to 2008.

But, despite demonstrable success with the earlier campaign, “[o]nly 2,000 hospitals agreed to implement all 12 safety interventions,” Cohen reports.

It’s not only hospitals that are resistant to change, Cohen says; professional associations drag their feet, too. The American Congress of Obstetrics and Gynecologists (ACOG) has refused to adopt 21 changes that were shown to reduce the incidence of unanticipated events that result in death or serious injury to patients.

That test, conducted over seven years at New York Presbyterian Hospital, showed a drop in malpractice judgments from more than $50 million to $250,000. “Yet ACOG refuses to recommend these reforms on the grounds that they may infringe on individual doctor or hospital prerogatives,” Cohen writes.

“Make no mistake: Money is the principal goal of most malpractice suits,” Cohen concludes. “It is the only remedy our system of civil justice knows how to provide. … But sometimes, lawsuits do much more: They provide essential light on a systemic problem and impetus to overcome institutional inertia.”

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