The Legal System's Grip On Health Care- Bary Calogero- H&hn September 23, 2008
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The Legal System’s Grip on Health Care By Barry Calogero Health courts could help eliminate waste and improve quality.
Barry Calogero A 62-year-old woman entered the emergency room of the hospital where she worked, complaining of chest pains. After an exam and an EKG, she was diagnosed with gastrointestinal disorder and was sent home. During the night, she died of coronary artery disease, with arterial blockages of 100 percent and 95 percent discovered during her autopsy. The hospital refused to provide information due to fear of a lawsuit. As a result, no meaningful analysis was conducted to prevent this from recurring in the future, no protocols were changed, and the physician involved in this case is practicing the same medicine the same way.
The Failure of the Tort System To improve quality, an organization must identify procedural problems, make them visible and punish the offender so the faulty service is not repeated. In the industrial sectors, corporations have learned to confront problems. With the Toyota Production System, for example, employees are required to identify errors, document them and put preventive actions in place to eliminate the source of variation. The Toyota Production System was created by Taiichi Ohno of Toyota, perfected in the 1970s and subsequently applied to multiple industries around the globe. One of the basic tenets of the system is a relentless focus on the elimination of waste. Every occurrence of quality variation and waste must be confronted and analyzed, and the source of the waste or variation must be eliminated through improved process design. This system has resulted in enormous improvements in productivity in many industries and the emergence of Toyota as the global leader in high-quality automobiles. Identifying, exposing and eliminating errors is not the norm in health care. If caregivers document a mistake, they are immediately exposed to litigation. Because obfuscation and secrecy become the standard practice, mistakes will invariably be replicated. Not only is learning suppressed within health care institutions, but other hospitals also do not benefit from the other hospitals’ mistakes. The tort system is not improving quality; it is only providing monetary rewards for plaintiff’s attorneys and the patients who suffered from an error. In 2004, tort costs totaled $28.7 billion with no correlation to improved quality. A much more effective mechanism for overseeing quality is the use of health courts made up of peer reviews and independent analysis of procedural errors. Damages would be commensurate to the mistake and would differentiate between human error and negligence.
A New Path Forward “Health Courts: A Better Approach to Malpractice Reform,” an article by Paul Barringer, proposes a new system with trained judges who have expertise in health care. (See the Bureau of National Affair’s Health Law Reporter, vol. 14, no. 25 [June 23, 2005].) These judges would rely on neutral outside experts to help them make decisions about the standard of care in malpractice cases. Noneconomic damages would be awarded in accordance with a schedule of benefits that would provide for predetermined amounts in specific types of injuries. Resolving disputes in special courts is not a new concept. Special courts exist for workers’ compensation, tax and patent disputes, vaccine liability, and other areas where complex subject matter demands special expertise. In addition, mental health courts have been established to improve the response of the criminal justice system to people with mental illness.
The critical issue in most medical malpractice cases is whether the doctor complied with the appropriate standard of care. Juries make these decisions in our existing system, even though they generally are poorly equipped for this responsibility as trial judges have little or no health care expertise to instruct them in their deliberations. As a consequence, it is hardly surprising that jurors often reach different decisions based on similar fact patterns. The unreliability of justice that this creates puts providers in the difficult position of not knowing what it will take to avoid a lawsuit. In a health court system, judges would make rulings about the standard of care as a matter of law. Of course, determining the standard of care can be a complex undertaking, given that there may be several reasonable courses of treatment in a particular circumstance. To help health court judges reach consistent decisions from case to case, judges would consider clinical practice guidelines using evidencebased practice standards. Insurance, lawsuits and defensive medicine could be minimized. Using conservative data, Tefen USA has estimated that 15 percent of the total cost of health care could be eliminated. At the same time, a reporting system would be put into place to make quality issues visible so they could be eliminated in the future. Therefore, based on 2005 spending data, this change would eliminate up to $300 billion of the cost of health care, while simultaneously improving the quality of care delivered.
A Needed Overhaul The current system is preventing the health care system from reforming the fundamental drivers of cost, quality and access—from implementing lessons learned, mandating best physician practice patterns, and improving performance-based process. Overhauling the tort system removes the single largest barrier to making health care more standard and repeatable, which will reduce demand of unnecessary procedures and free caregivers and hospitals to provide better overall care at a lower cost with higher access. The tort system is an impediment to preventive action. The death of my mother, the 62-year-old woman cited at the beginning of this article, has benefited no one in the past 10 years. (No lawsuit was filed or considered in her case.) This is the tragic failing of the tort system. We can do better. Barry Calogero is president of Tefen USA, a management consulting firm based in New York.
GIVE US YOUR COMMENTS! Hospitals & Health Networks welcomes your comment on this article. E-mail your comments to [email protected], fax them to H&HN Editor at (312) 422-4500, or mail them to Editor, Hospitals & Health Networks, Health Forum, One North Franklin, Chicago, IL 60606. This article 1st appeared on September 23, 2008 in HHN Magazine online site.
Barry Calogero A 62-year-old woman entered the emergency room of the hospital where she worked, complaining of chest pains. After an exam and an EKG, she was diagnosed with gastrointestinal disorder and was sent home. During the night, she died of coronary artery disease, with arterial blockages of 100 percent and 95 percent discovered during her autopsy. The hospital refused to provide information due to fear of a lawsuit. As a result, no meaningful analysis was conducted to prevent this from recurring in the future, no protocols were changed, and the physician involved in this case is practicing the same medicine the same way.
The Failure of the Tort System To improve quality, an organization must identify procedural problems, make them visible and punish the offender so the faulty service is not repeated. In the industrial sectors, corporations have learned to confront problems. With the Toyota Production System, for example, employees are required to identify errors, document them and put preventive actions in place to eliminate the source of variation. The Toyota Production System was created by Taiichi Ohno of Toyota, perfected in the 1970s and subsequently applied to multiple industries around the globe. One of the basic tenets of the system is a relentless focus on the elimination of waste. Every occurrence of quality variation and waste must be confronted and analyzed, and the source of the waste or variation must be eliminated through improved process design. This system has resulted in enormous improvements in productivity in many industries and the emergence of Toyota as the global leader in high-quality automobiles. Identifying, exposing and eliminating errors is not the norm in health care. If caregivers document a mistake, they are immediately exposed to litigation. Because obfuscation and secrecy become the standard practice, mistakes will invariably be replicated. Not only is learning suppressed within health care institutions, but other hospitals also do not benefit from the other hospitals’ mistakes. The tort system is not improving quality; it is only providing monetary rewards for plaintiff’s attorneys and the patients who suffered from an error. In 2004, tort costs totaled $28.7 billion with no correlation to improved quality. A much more effective mechanism for overseeing quality is the use of health courts made up of peer reviews and independent analysis of procedural errors. Damages would be commensurate to the mistake and would differentiate between human error and negligence.
A New Path Forward “Health Courts: A Better Approach to Malpractice Reform,” an article by Paul Barringer, proposes a new system with trained judges who have expertise in health care. (See the Bureau of National Affair’s Health Law Reporter, vol. 14, no. 25 [June 23, 2005].) These judges would rely on neutral outside experts to help them make decisions about the standard of care in malpractice cases. Noneconomic damages would be awarded in accordance with a schedule of benefits that would provide for predetermined amounts in specific types of injuries. Resolving disputes in special courts is not a new concept. Special courts exist for workers’ compensation, tax and patent disputes, vaccine liability, and other areas where complex subject matter demands special expertise. In addition, mental health courts have been established to improve the response of the criminal justice system to people with mental illness.
The critical issue in most medical malpractice cases is whether the doctor complied with the appropriate standard of care. Juries make these decisions in our existing system, even though they generally are poorly equipped for this responsibility as trial judges have little or no health care expertise to instruct them in their deliberations. As a consequence, it is hardly surprising that jurors often reach different decisions based on similar fact patterns. The unreliability of justice that this creates puts providers in the difficult position of not knowing what it will take to avoid a lawsuit. In a health court system, judges would make rulings about the standard of care as a matter of law. Of course, determining the standard of care can be a complex undertaking, given that there may be several reasonable courses of treatment in a particular circumstance. To help health court judges reach consistent decisions from case to case, judges would consider clinical practice guidelines using evidencebased practice standards. Insurance, lawsuits and defensive medicine could be minimized. Using conservative data, Tefen USA has estimated that 15 percent of the total cost of health care could be eliminated. At the same time, a reporting system would be put into place to make quality issues visible so they could be eliminated in the future. Therefore, based on 2005 spending data, this change would eliminate up to $300 billion of the cost of health care, while simultaneously improving the quality of care delivered.
A Needed Overhaul The current system is preventing the health care system from reforming the fundamental drivers of cost, quality and access—from implementing lessons learned, mandating best physician practice patterns, and improving performance-based process. Overhauling the tort system removes the single largest barrier to making health care more standard and repeatable, which will reduce demand of unnecessary procedures and free caregivers and hospitals to provide better overall care at a lower cost with higher access. The tort system is an impediment to preventive action. The death of my mother, the 62-year-old woman cited at the beginning of this article, has benefited no one in the past 10 years. (No lawsuit was filed or considered in her case.) This is the tragic failing of the tort system. We can do better. Barry Calogero is president of Tefen USA, a management consulting firm based in New York.
GIVE US YOUR COMMENTS! Hospitals & Health Networks welcomes your comment on this article. E-mail your comments to [email protected], fax them to H&HN Editor at (312) 422-4500, or mail them to Editor, Hospitals & Health Networks, Health Forum, One North Franklin, Chicago, IL 60606. This article 1st appeared on September 23, 2008 in HHN Magazine online site.
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