Like many physicians, I have been involved in a malpractice suit.
It occurred within my first year out of residency and was devastating to my confidence as a physician. The sad thing is, my colleagues and I who were named in the suit did not do anything wrong. It was indeed an unfortunate outcome for the patient that could not have been averted. In the end, however, no one was satisfied with the outcome of the eventual settlement for the patient.
The reason that no one was fulfilled, and why our malpractice system often produces such results, is that the purpose behind these kinds of lawsuits is different for all parties involved.
Medicine is an entity of randomness. We can do all of the “right” things and still end up with a negative outcome. The opposite is true too since we can make a “wrong” decision and still have a good outcome.
But how do we physicians know what is “right” versus how much of what we do is based in pure luck?
We obviously invest a great deal in medical science to know as much as we can about what test or treatment is most appropriate in a given circumstance. But what we don’t know far outweighs what we do. Science is a fickle mistress that provides no definitive answers and asks infinite questions.
Which leads us to our malpractice quandary. Negligence absolutely exists in medicine and physicians should be held accountable for such instances, but often tort law holds us accountable for the randomness that we do not control.
The idea of “standard of care” was introduced to medical malpractice proceedings in the early 19th century. The idea was (is) that we can account for a medical event that involves evidence that we do not yet have by seeing how other physicians might reasonably act in a similar situation. In other words, we make sure that the process that the doctor or institution followed is close enough to what another local doctor or institution would do. With this as the standard for any malpractice suit, an attorney’s goal (theoretically) is to show malfeasance, or lack thereof, by analyzing the process used in the medical decision-making or actions taken.
The standard of care evaluates the process. The attorneys and courts evaluate the process. The patient or loved one, however, evaluates the outcome.
Further, people tend to think in absolutes: the outcome is a definable, certain event, and such events should have someone or something to blame. As Russell Carleton said in his recent book, The Shift, “Uncertainty feels icky and people will go to great lengths and do irrational things to get rid of uncertainty.” That includes suing a doctor to “feel better” about an unfortunate but uncontrollable instance.
Most early malpractice claims in the United Stated focused on a breach of contract where the physician “promised” a specific outcome and did not deliver despite receiving the agreed upon payment. The significant lack of standardization of medical education and the profession set up many physicians for incompetence and poor outcomes, though much of that has been alleviated through the “standard of care” provision. But it doesn’t prevent frivolous lawsuits, and it doesn’t prevent irresponsible payments to certain plaintiffs and attorneys.
The current system highlights the greatest fears of physicians: that we are either incompetent, or fully competent, but completely powerless. It also fails to assuage concerns from patients.
By no means am I faulting all patients who have experienced a bad outcome. In my own malpractice suit, I truly felt for the patient who ended up losing some of her hearing because no real restitution exists for her. She received some financial compensation, but money doesn’t alter the damage that occurred. The evaluation by the pre-litigation panel and the physicians showed that the process was sound—we didn’t do anything wrong—but the prosecution received a settlement simply to avoid dragging out an unnecessary court battle.
I was left frustrated and more than a bit traumatized; the patient was dissatisfied that someone wasn’t held accountable; and the prosecuting attorney was satisfied after extracting a settlement (even though they were pushing for a bigger windfall through a trial). In all directions, pessimism has been sown, and definitive resolution has been avoided.
If we want to avoid the tort system to actually deter and compensate for negligence or malfeasance, we need to adjust how it is utilized to truly benefit everyone involved. The biggest influence on whether a patient will sue is the connection they have with their physician. The more trust there is, the less likely a patient will sue, no matter how poor the outcome. The more time the physician spends explaining and discussing concerns with patients, the more that trust grows. Physicians saying “sorry” for a bad outcome, whether admitting fault or not, also goes a long way to strengthen that patient-physician relationship.
Possibly the biggest reform we can make to the tort system would be to invest in allowing more time for physicians to meet with a given patient. If we are serious about improving outcomes, we have to optimize the process of medical decision-making since it determines the outcome of malpractice suits.
Dr. Kyle Bradford Jones is a board-certified family physician and an assistant professor at the University of Utah School of Medicine. He is a 2018–2019 Doximity Author.
