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Iatrogenesis and Medical Error: the Case for Medical Malpractice Litigation by Barry R

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Iatrogenesis and Medical Error: the Case for Medical Malpractice Litigation by Barry R Medical Malpractice Iatrogenesis and Medical Error: The Case for Medical Malpractice Litigation by Barry R. Furrow, J .D. D iscussions of medical malprac- studies, in the NEWENGLAND JOUR- curious one, following the authors’ tice seem to end up at either of two NAL OF MEDICINE,focused upon surgi- premises: (1) many severe iatrogenic extremes: the trial lawyer’s view that cal mishaps in one case3 and iatro- events occur, (2) due primarily to injured patients deserve compensa- genic illness in a general medical physician judgmental error, (3) which tion, with the treating physician the service at a university hospital in errors could be minimized by better best source; and the doctor’s view that the ~econd.~ data collection and discussion, (4) ex- such suits unfairly penalize judgmental The first study, surveying avoidable cept for the effect of malpractice liti- errors while raising the costs of prac- adverse outcomes from colonic sur- gation in stifling said reforms, even ticing medicine. The parties to this gery, concluded that “[tlhe penalties though (5) none of the examples debate make different assumptions for such misadventures turned out to which the authors cite involve negli- about the nature, purpose, and likely be severe, with 10 times the mortality, gence. It is as though a mandatory impact of malpractice suits; as a result, seven times the average cost, and four swipe at malpractice litigation is the issues are muddied rather than times the length of hospitalization necessary to top off the study. clarified. This article suggests that, expected in average patients under- viewed in light of recent studies of iat- going comparable but uncomplicated In light of recent studies of iat. rogenic illness in hospital settings, colonic surgical procedures.”s Of 56 rogenic illness in the hospital malpractice litigation may help rather types of errors which occurred, 31 setting, malpractice litigation than hinder the quality of medical were “those of unnecessary, contra- may help rather than hinder care delivered. indicated, or technically defective sur- the quality of medical care latrogenesis, defined as the undesir- gical activity.’I6 Other sources of the delivered. able side-effects of medical interven- medical “errors” were identified by the tions, is not a new phenomenon. The authors, admittedly in an impres- major study undertaken by the De- sionistic fashion, as misplaced op The second study, of general medi- partment of Health, Education and timism, a sense of unwarranted cal services at a university hospital, Welfare in 1973 noted that a substan- urgency, the urge for perfection, and monitored 815 patients during a five- tial percentage of adverse medical out- the use of vogue therapies: all errors of month period in 1979.1° Of these, 290 comes occur as the result of treat- commission. From a legal standpoint, (36 percent) had one or more iat- ment.’ Others have concluded that according to the authors, “none ap rogenic illnesses, 76 (9 percent) had many surgical deaths are avoidable.* pears to have involved negligence.”’ major complications, and of the 15 Two recent studies have added fuel to The authors were concerned about who died (2 percent of all patients the smoldering controversy over the their findings, and proposed that a and more than 5 percent of those with nature and extent of such medical legal safeguard was needed against complications), iatrogenic illness mishaps, drawing attention to a range malpractice suits for errors in judg- was believed to be a contributing of medical errors and raising again the ment, i.e., “error simply related to cause. The intervention categories question of the tort system’s relation- flawed reasoning” as opposed to negli- were drugs, diagnostic and therapeutic ship with medical error. The two gence.s Malpractice suits only suc- procedures, and miscellaneous others. ceed, according to the authors, in The authors’ overall conclusion was Mr. Furrow isvisiting Professor of Law driving into concealment the “forces that “the risk incurred during hospitali- at the University ofMichigan Law School that could help to reveal and control zation is not trivial” and that “the risk in Ann Arbor, Michigan, and Professor epidemiologic sources of error.”9 of a serious problem may well have of Law (on kawe) at Washingron Colkge The culprit of the study is made out increased” in the last 20 years. * 1 ofLaw, American University in Washing- to be the tort system, with fear of liti- Causes mentioned included routine ton, D. C. Mr. Furrow is also a newly gation blocking broader disclosure of monitoring of a range of physiologic appointed Associate Editor O~LAWMED. hazards, better studies, and open dis- characteristics, often leading to ear- JUNE B HEALTHCARE in charge ofthe cussion. The asserted link between lier interventions than might have column on Medical Malpractice. medical error and malpractice is a occurred in the past; use of a wide range 4 Law, Medicine 8 Health Care of potent drugs; and therapeutic proce- professional standards. Negligence current malpractice doctrine. dures in general. The authors made provides the usual basis for a malprac- Errors based upon professional no judgment as to negligence and iatro- tice action. It is defined as unskillful shortcomings. Deficiencies within a genesis. As in the first study, however, practice causing injury to the patient, medical specialty may cause iatrogenic these authors issued a clarion call for as a result of a failure to exercise the harm. These may include problems better mechanisms “to assess the haz, “reasonable degree of skill, knowledge, of scientific ignorance, inadequate ards of hospitalization in an ongoing and care”15 appropriate under the evaluation of diagnostic instruments manner,”’* for an intensified search circumstances. The reasons for a physi- and procedures before use, or failures for means to reduce the frequency and cian’s failure to follow an accepted to educate members. A medical spe- severity of iatrogenic events, and for standard can be many: inattentiveness cialty may be in its infancy, so that a shared concern for deficiencies in on a particular occasion, even though knowledge about etiologies of illness medical review within the hospital. he is a skillful. well-trained doctor; and techniques of treatment is incom- a systematic failure of training, in plete. Those therapeutic techniques Medical Error and Culpability which a physician has not kept up with which are available may not yet have The level of patient harm demon- his field; or a personal inability of the been sufficiently perfected to eliminate strated by these recent studies raises physician to deal with this particular substantial risks of side effects. l6 the question of the interface of mal- problem by, for example, operating Although injury to a patient may be practice litigation with risk reduction, outside his sphere of competence. caused by the shortcomings of a par- a relationship which the studies as- Even though the particular physician ticular therapist in a given case, it is sumed was either detrimental or too not the individual’s failure, but rather insignificant to mention. However, a Discussions of rofessional rep that of the profession as a whole which sophisticated view of tort litigation lation tend to gwnplay the role can fairly be said to have caused in- suggests that it may be a valuable ad- of malpractice litigation, pore jury. We are therefore troubled, at junct to other professional reforms and traying it as useful only for the least initially, by singling out the indi- in fact can be a central force in pro- sanction of gross violations of vidual physician for liability. It is re- moting change. A brief summation of professional norms. In fact, such ally a form of vicarious liability we are the kinds of medical error raised in litigation should be viewed as a imposing, in which the profession is these studies reveals suggestive form of “microregulation” of collectively at fault, but a particular connections between error and undesirable practices. therapist is being penalized for collec- culpability. tive shortcomings. The causes cited by Tort rules have traditionally at- the studies suggest that errors in this tempted to render the plaintiff whole has considered the consequences of category (e.g., vogue therapies, multi- by forcing a defendant to pay compen- treatment and has exercised his best ple drug administration) account for a sation, with the justification that the judgment, his conduct is still measured significant percentage of the iatrogenic defendant can fairly be taxed because by an external standard of the reason- harms suffered.” of his “fault” in injuring the plaintiff. able practitioner in his position. Errors related to work setting. The Two categories of “fault” are normally The legal system has deemed it fair context of both studies, discussed included within the category of mal- to hold a physician accountable for above, the modern hospital, provides practice: intentional harmful acts and these two categories of medical errors a fourth set of medical errors. While negligent acts. in a malpractice suit. They imply that solo practice has long been the ideal in Willful harmful acts. Intentional the physician has failed to conduct medical practice, physicians’ need for torts include a knowing deviation, himself at that level of practice which a hospital connection has created the without good cause, from the profes- his professional membership indicates present form of practice, which is col- sional or ethical norms of practice for he should have achieved, and which legial, operating within hospitals and the profession or from recognized pro- he presumably could have achieved, group practices. By 1975, no physician cedures and techniques for treatment. with diligence. In these two categories would consider practicing without the The roots of the informed consent of error, the focus is upon the indi- resources that hospital affiliation doctrine can be traced to the inten- vidual practitioner and his deviation, brought, and one in four of the tional tort of battery, for example, ac- whether intentional or negligent, from 530,000 active physicians practiced knowledging the connection between a norm.
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