What is the Problem: Preventable Deaths and Injuries or the Lawsuits That Follow?
Debates over the civil justice system, i.e. whether we need tort reform to deter so called "frivolous lawsuits," generate much heat, but little light.
Tort reform distracts our attention from preventing needless injuries and deaths. The medical community expressed shock by the 1999 Institute of Medicine report estimating the number of Americans killed each year by medical errors between 44,000 and 98,000. Subsequent estimates are 195,000 unnecessary deaths. Recent news reports estimate over 2,000 British citizens killed each year, and a staggering 525,000 injured. Why are we not outraged by these numbers? Why don't these deaths and injuries command as much political discussion as so called "frivolous lawsuits?"
In 2002, a medical error killed a child at a major university hospital system. After surgery, the child received pain relief through a "patient controlled analgesia (PCA) pump." Unfortunately, the pump delivered too much pain medicine. The surgery was a complete success, but the patient died. The child's death devastated not only the family, but the university hospital as well. How could this have happened there?
To its credit, the university publicly took responsibility for the error. It conducted a thorough investigation. A conference openly discussing the incident and the investigation broadcast on the internet. If each medical error received this level of attention, patient safety and tort reform would not be public issues. What lessons can we learn from this incident?
In a meeting with the chief of staff, I worried that I might bear some very indirect responsibility for this incident. As a trial lawyer, I had worked on similar PCA pump incidents in 1992 and 1994. My clients agreed to a non-disclosure agreement. Could publicity of those two incidents have prevented the 2002 death?
Reviewing the medical literature demonstrated over 75 articles warning of this problem dating back to 1982, twenty years before the 2002 incident. Titles of the articles warn:
1989: "The Need for Caution," "Safety Hazard," "Severe Respiratory Depression;"
1992: "Oversedation," "Overdose of Opoid," "Solving the Problems..," "A Survey of Complications," Half of [PCA pumps] Could Cause Mishaps," "A Serious Incident;"
1993: "Preventing Errors [w PCA pumps]," "A Hidden Risk Throughout the Hospital Environment;"
1994: "Respiratory Depression.. Review of Eight Cases," "Identification of [PCA] Overdoses," "Overdose of Opiate;"
1995: six articles warning of "Hazard," "Overdose," and "Failure" [w PCA pumps]
1996: "Respiratory Depression," "Morphine Overdose," "Infusion Confusion;"
1997: "[PCA pumps] Prone to Misprogramming," "Eliminating Errors," "Human Error,"
1998 - 2001: "Just When We Thought We Understood [PCA]," "Preventing Future Adverse Events," "Anesthesia
Equipment and Human Error," and
"Patient Uncontrolled Analgesia."
The Food and Drug Administration has maintained a publicly accessible database for reporting of adverse incidents associated with various medical devices. The standards for reporting these incidents have evolved, but most accept that not all adverse incidents are reported. That database contained over 8,000 reports of over 4,000 incidents involving PCA pumps.
What is the problem to be addressed?
The tort reform community tells us the problem is that the few of these incidents that have resulted in lawsuits and settlements or verdicts are driving up malpractice insurance premiums. They tell us increases in those premiums make it more difficult to receive health care. The few lawsuits arising out of these incidents are the problem.
There is another view. Why didn't someone pay attention to the first five, ten, fifteen, hundred, or even a thousand incidents before taking action? Why didn't the professional organizations convene a meeting to take steps after even the first hundred or thousand such incidents? How many families were devastated by the death or brain damage of a loved one? Why does it take a lawsuit to call attention to these problems?
Errors in programming PCA pumps are merely one kind of medical error. Sadly, the major university hospital did not learn from the many articles in the medical literature that it needed to take steps to prevent these injuries. We as a society failed to make an adequate response to the thousands of reports in the FDA database. That database suggests so many incidents that it seems likely that each of America's 6000 hospitals only paid attention to this problem after an incident occurred on their premises.
How many types of medical errors are there? Is each type of error repeated at each of America's 6000 hospitals before corrective action is taken? It is sad that the only way citizens have of getting the medical community to pay attention to a problem is to file a lawsuit.
It is our choice. Is the problem:
A. The medical errors and resulting injuries and deaths, or
B. The lawsuits that a few of the victims file?
That answer will determine whether the appropriate solution is to learn from the lawsuits or eliminate them.