I'll Tell You What Happened if You Promise Not to Sue Me--will No-fault Liability Improve Patient Safety Through Increased Reporting of Medical Errors?

• Jurisdiction: United States,Federal
• Publication year: 2010
• Citation: Vol. 19 No. 4

I'll Tell You What Happened if You Promise Not to Sue Me--Will No-Fault Liability Improve Patient Safety through Increased Reporting of Medical Errors?

K. James Sangston

Seeking medical care in the United States can be dangerous to your health.[1] A recent Institute of Medicine report has focused the public's attention on the alarming rate of occurrence of medical errors in this country.[2] The data in the report suggest that between 44,000 and 98,000 deaths occur each year in the United States from preventable medical errors.[3] These errors include administering wrong medicine to a patient or administering the correct medicine but in the wrong dosage.[4]

Even prior to the alarm raised by this report, reformers were advocating a "systems" approach to error prevention and correction similar to the approach taken in the aviation industry to improve patient safety by eliminating preventable errors.[5] The goal of the systems approach to error prevention is to identify and modify or eliminate the conditions that facilitate error occurrence.[6] For example, post-accident analysis of a Canadian plane crash in which the plane took off with ice on its wings revealed several conditions, such as aircraft design, poor government oversight, management's disregard of the need for de-icing, and insufficient maintenance and training procedures, that combined to facilitate the final error of consequence--the plane taking off with ice on its wings and subsequently crashing.[7]

A systems approach relies heavily on the notion that practitioners must first identify errors before they can study, understand, and eventually correct or prevent them.[8] In the aviation industry, agency-implemented mechanisms to facilitate error reporting have been quite successful in reducing the occurrence of errors.[9]

However, this country's legal system poses impediments to error reporting in the healthcare industry (and thus the subsequent increase in patient safety through error reduction).[10] Doctors are reportedly reluctant to disclose errors to patients because of fears that the patient will seek a malpractice judgment against them.[11] Further, doctors are reluctant to report errors to administrative bodies out of fear that the report will be discoverable in civil litigation.[12] Unfortunately, safety efforts cannot eliminate unreported errors.[13] Thus, fears engendered by the current tort liability system may undermine any attempt to facilitate error reporting in the healthcare industry.[14]

In addition to discouraging reporting, the current legal system impedes the actual practice of medicine in this country.[15] In particular, doctors allegedly engage in defensive medicine, refuse to take high-risk cases, and avoid certain high-risk practice areas in order to reduce the likelihood of a malpractice claim.[16] Critics argue that the current legal system leads to higher costs, decreased quality of care, and lower access to the healthcare system.[17] Although changing the legal system to give no-fault immunity to medical practitioners arguably may be a sensible mechanism for improving healthcare delivery, this Note focuses only on the question of whether a no-fault system that relieves practitioners of tort liability for medical errors will lead to improved patient safety through increased error reporting.[18]

Although the "malpractice crisis" of the 1980s has passed, reformers are once again calling for a no-fault compensation system in response to the perceived crisis of under-reporting of medical errors and the consequent danger to patients.[19] This Note presents a critical assessment of a no-fault system's validity as a mechanism to increase patient safety.[20]

Part I discusses the general concept of error.[21] Part II discusses how the legal and medical communities perceive the role and impact of the current tort system in promoting patient safety.[22] Part III presents a no-fault compensation proposal offered to promote patient safety through improved error-reporting,[23] and Part IV critiques this proposal in light of the various perspectives discussed in Parts I and II.[24] This Note concludes that a system of no-fault liability coupled with experience rating, as used in the workers' compensation system, will effectively promote patient safety through improved reporting of implementation errors (as opposed to judgment errors)[25] identified as preventable through a systems approach.[26]

I. Systems Thinking and Medical Error

A. Error in General

An error occurs when one fails to undertake or complete an intended action or when one conceives an action incapable of or ill-suited to achieving the intended aim.[27] Errors fall naturally into one of the following two categories: (1) implementation errors, which are unintended failures to complete an often routine task, and (2) judgment errors, which are failures to conceive a proper plan to achieve the intended goal.[28] Researchers generally view errors as having one of two distinct causes--human fallibility or inadequate defenses to overcome error-inducing conditions inherent in the system under operation.[29] Systems errors are those errors caused or facilitated by the conditions in which the human operator works.[30] Researchers further classify systems errors as follows: (1) latent errors, which encompass defects in the system through which a person is working, and (2) active errors, which encompass the failures and rules violations of the system operators.[31] These two error classifications are not mutually exclusive.[32]

The systems approach to errors focuses on defenses and barriers to error and how these defenses or barriers interact--or fail to interact--to prevent the occurrence of errors, which systems analysts see as inevitable.[33] One researcher has described the occurrence of systems errors with the aid of a "Swiss cheese" model: a complex system comprised of multiple "slices" that contain "holes" through which errors occur.[34] As long as the "holes" don't line up, the system traps the error before it causes an undesired outcome.[35] However, when the "holes" do line up, an error can propagate throughout the system and lead to a final bad outcome.[36] Both latent conditions in the system and active errors by participants create the "holes," which continually appear and disappear during the dynamic operation of a complex system.[37]

B. Systems Analysis in Error Elimination

A system for error study purposes typically involves the following common characteristics: (1) the system is complex, (2) the system imposes high-level technical requirements on the operator, (3) system operation requires quick reaction times, (4) the system operates non-stop (twenty-four hours a day), and (5) only a small percentage of errors actually lead to adverse events.[38] For systems errors, attempts to locate the cause of the error typically focus more attention on the latent aspect of the error than the active aspect.[39] To achieve the primary goal of error prevention, researchers have developed a systems safeguard methodology that detects latent errors as the system is operating, changes the system process, and assesses the impact of the change on the error occurrence.[40] This error-correction process depends critically on error detection to initiate the feedback process that ultimately corrects the error.[41]

A systems approach to error prevention recognizes that analysts cannot change aspects of human cognitive features that lead to error occurrence, but analysts may design systems to reveal the occurrence of errors and to initiate procedures to mitigate or prevent the errors thus revealed.[42] Factors that underlie systemic approaches to error prevention include cultural attitudes within the particular profession or organization, management and other interpersonal aspects of the systems operation, and stress of the work environment.[43] In high risk, high pressure industries such as aviation and healthcare, failure to recognize diminished capability due to stress and the resultant reduction in teamwork and communication may contribute significantly to the occurrence of errors.[44] Systemic approaches to identifying, understanding, and eliminating these error-inducing factors include surveys to collect data on workers' attitudes, identification of error-reducing behaviors, intervention training to change attitudes and associated behaviors, simulations to study effects of stress on teamwork, and ultimately changes to mitigate or eliminate the error-producing conditions.[45]

In the aviation industry, which involves a complex system imposing stringent technical demands on pilots who must frequently react in very short time frames, systems analysis has dramatically improved safety.[46] Human factors researchers have developed both survey questionnaires and simulators to reveal cockpit and flight management attitudes and practices that lead to errors.[47] For example, a recent survey revealed that only twenty-six percent of pilots surveyed felt they performed effectively in critical situations despite being fatigued.[48] This attitude contrasts sharply with the attitude of consultant surgeons, seventy percent of whom felt they continued to be effective despite fatigue.[49] Human factors researchers attribute this difference to the aviation industry's emphasis on education and training in order to facilitate industry acceptance of human limitations and fallibility when under stress.[50] Consistent with the attitude that errors are inevitable, the aviation industry implements various safeguards, including: (1) multiple instruments and redundancies to catch and absorb errors before they manifest adverse outcomes, (2) standardized procedures in the form of protocols and checklists, and (3) regular, specifically detailed systems maintenance.[51]

The Air Safety Reporting System (ASRS), a confidential, non-punitive error and near-miss reporting system that yields data on and insights about...