Tragedy and torts: Bankrupting medicine not the answer

AMA Leader Commentary. By Yank D. Coble Jr., MD. March 17, 2003.

AMA LEADER COMMENTARY

A few words about current events in medical practice

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A message to all physicians from AMA President Yank D. Coble Jr., MD.

The events of February took me and many other physicians from the heights of triumph because of the Medicare win in Congress to the depths of tragedy with the news about the young woman whose heart and lung transplant was compromised because of a blood mismatch.

As a graduate of Duke University Medical School, I felt strongly the agony of the staff at Duke University Medical Center, as the news came out that a tragic error had occurred when skilled physicians transplanted a heart and lungs into a teenage girl whose blood type didn't match the donor's. I'm sure I was not alone.

Doctors everywhere empathized with the situation, understanding how devastated the medical staff must feel, attempting to save the girl's life, but having their work undermined by an ineffective system.

The AMA -- and the National Patient Safety Foundation it founded in 1996 -- believes that even one preventable medical error that harms a patient is one error too many. But we also acknowledge that we are human, and thus errors are made.

The Institute of Medicine report, "To Err is Human," acknowledges that reality. True safety can come about only in an environment where errors can be identified and studied openly, so we can implement safeguards to prevent them.

That's why we are supporting the Patient Safety and Quality Improvement Act (HR 663), introduced in Congress by Reps. Billy Tauzin (R, La.) and John Dingell (D, Mich.), which would allow voluntary, confidential reporting of medical errors. It would facilitate gathering information in a nonpunitive manner, having it reviewed by experts and then giving feedback to those involved, sharing the lessons learned and the system fixes with everyone.

Even in such an internationally prestigious and accomplished institution as Duke, at the forefront of science and safety, with the most sophisticated technology and highly trained physicians and health professionals, errors can happen.

It is to the credit of the Duke physicians that they were open about what had happened there. Only when errors are reported can the information be used to improve the system and avoid the repetition of the error in the future.

I sighed with relief when I read the later news reports that a second set of heart and lungs quickly was found and transplanted into the patient, and that she had survived the second surgery. But, as you know, these heroic efforts, available in few places in the world, were futile, and the young woman died.

No amount of money is going to eliminate the anguish and the grief this family is feeling over the loss of their daughter. No amount of money will bring her back. But bankrupting the system so that others do not have access to doctors or high-risk medical care in the future is not the answer.

Patients and families who are harmed by negligence -- by individuals or by the system -- need to be compensated, but not to the point that millions more people are harmed because these awards bankrupt the system and drive doctors away from high-risk care.

Unfortunately, this young woman's death will be cited -- is already being cited -- far and wide by trial lawyers who will say that it proves that tort reform is not needed.

Yet a recent Harvard study shows no correlation between medical liability award payments and physician negligence. It reported that the severity of a patient's disability, not the presence of an adverse event due to negligence, was the only significant predictor of payment to medical malpractice plaintiffs in the form of a jury verdict or settlement. So why does the trial bar keep insisting that tort reform would lead to a diminishment of patient safety?

The current medical liability system doesn't identify negligence, and it doesn't weed out bad doctors. Nor does it facilitate advances in science and technology. It just increases the cost of medical care as it decreases patients' access to care. And decreased access to care endangers patients more than anything else.

Medical quality is positively correlated with medical access, while there is no correlation between getting sued and medical malpractice.

Clear evidence exists, however, that our system of civil justice -- which is neither civil nor just -- is causing grave reductions in patient access to care. It also is creating an environment of shame and blame in which physicians are forced to practice medicine defensively.

Let's keep in mind that astronomical jury awards do absolutely nothing to make the system safer. It is misguided to think that suing physicians for all you possibly can somehow fixes the problem that caused the error in the first place.

Tort reform -- medical liability reform -- can help us build a culture of safety and quality in which we can make continuous improvements in patient care. Our current tort system is unfair to patients, unfair to science, unfair to health professionals and unfair to the young people who are deterred from entering the medical profession because of the climate of mistrust.

We must continue our drive for meaningful tort reform, not just ineffective "Band-Aid" measures, no matter how long it takes. Medical liability reform is the AMA's greatest legislative priority for 2003. We anticipate action on this issue in both houses of the U.S. Congress this month, and we will be listening -- and participating -- with great interest.

But all the action on tort reform doesn't happen at the national level. We must continuously work in the states for court reform, in order to protect our tort reform. So many laws passed in state legislatures have been ruled unconstitutional by the courts, as has been the case in my home state of Florida. We must be aware, and we must be vigilant when it comes to reforming the court, as well as the tort system. The future and quality of American medicine depend upon it.

Dr. Coble, an endocrinologist in private practice in Jacksonville, Fla., was president of the AMA during 2002-03.