Comments on: Strict Liability in Medicine

By: Pending the abolition of gravity…

Pending the abolition of gravity… — Sun, 25 May 2008 21:33:38 +0000

[...] it comes to patient suicide attempts or hypoglycemia, among other misadventures (White Coat Rants, Feb. 5)(via KevinMD). Related: letters section, 2004 (pressure [...]

By: Supremacy Claus

Supremacy Claus — Mon, 14 Apr 2008 09:05:16 +0000

The lawsuit has all the features of a product. It is inherently harmful in its ordinary use. I suggest strict liability apply to all weak cases.

Appellate decision are based on judge errors in the law and not on errors of facts. All reversed decisions are never events. The reversed judge should not get paid for any reversed outcome.

By: BNET Intercom mobile edition

BNET Intercom mobile edition — Sun, 06 Apr 2008 00:27:45 +0000

[...] some doctor-bloggers have aired some trenchant criticism about a few of these guidelines, particularly those involving death or serious injury resulting [...]

By: over my med body! » Health Care’s Broke: For Single-Payer 2

over my med body! » Health Care’s Broke: For Single-Payer 2 — Sat, 22 Mar 2008 17:04:46 +0000

[...] people never going without health insurance. I find it interesting that we can be frustrated with Medicare’s “never events” at an institutional level, but don’t apply that same perspective to individual patients. In a [...]

By: Sara

Sara — Sat, 09 Feb 2008 15:00:49 +0000

Although I work in an OR as an RN, this is my first time reading the list of the 28 “never” events. The way the events are written makes me question who’s writing them. A large number of these “nevers” seem to be aimed at the OR. While it’s obvious why the wrong site and wrong patient “nevers” are on the list, some of the other “nevers” such as wrong procedure or the “ASA I” statement are poorly written. If a physician is performing an left bowel procedure, and sees a right bowel perforation, should he repair it? Or should he leave it the way it is, to avoid the potential of of a “wrong surgery” lawsuit brought by a personal injury attorney? And the ASA I requirement will only inspire anesthesia providers to find every possible reason to change healthy patients to ASA II’s.
And a reply to Frodo:
The surgical team changes their “crusty” clothes when they come back to the OR.
We use gravity or prevac sterilizers that sterilize instruments in 10 minutes. If they needed 20 minutes, we would use 20 minutes, but we know we don’t because of a crazy thing called research. Some items are sensitive to heat and get chemical or gas sterilization.
If you think you can do surgery better than the people doing it now, open an OR yourself.

By: Bob

Bob — Wed, 06 Feb 2008 22:06:45 +0000

I agree with some of your opinions such as hospitals shouldn’t be liable for malfunctioned equipments, but I do disagree with your opinion on how hospitals should not be responsible for people who fall.

In actually, its not just hospitals that are being put in this situation. I used to work at a store back in high school and my job required me to be responsible for all clean ups or spills. Now if someone was to fall, it would be most likely due to something in the area that caused one to fall ie slippery floor, petruding object, etc. The store manager made it clear that the store is responsible for all persons who come in regardless of what caused the injury.

Getting back to the topic of hospitals, the NQF was probably assuming that people don’t fall for no reason at all. They probably think that there must have been something there that the hospital placed improperly that is th cause.

By: destroy what system is left

destroy what system is left — Wed, 06 Feb 2008 19:55:05 +0000

I don’t know what is more scary. This concept of “never” events or that there are people as actually clueless as Frodo441.

By: Mike Pringle

Mike Pringle — Wed, 06 Feb 2008 19:53:11 +0000

Many opinions on the post I see. I think you have a great topic for a round table. You might need some flack jackets but still good prose. After being in healthcare for some twenty years myself I do see the impetus for wanting to improve quality and safety for patients, who wouldn’t. As usual with our society, those who have control are in a position to make things punitive in nature for the rest of us, which I really don’t think is the best course of action always. Healthcare today is very demanding on several plains, and as longevity increases so will demands for resources relative to healthcare. Even with the best laid plans I don’t think healthcare is every going to appreciate a zero defect environment. Healthcare is a human undertaking like most everything else in our world. Humans are fallible – some very much so. I think the best we can hope for is to make sure that we don’t as you say, cut off the wrong body part, or operate on the wrong patient. It is reasonable to expect that these types of errors would never happen. The rest although they may be costly in terms of dollars, pain, time, etc., all we can do is to try an minimize them as best we can given the number of constraints built into the system.

By: Patrick

Patrick — Wed, 06 Feb 2008 18:22:15 +0000

Exactly!

In light of the fact that medicine is so far removed from a free market, a strict liability model actually makes sense. I think everyone agrees that if A is injured through no fault of her own, while under the care of B, then A deserves to recover for her injury. What is NOT always clear is that B should be the person who pays. The injury may well have been the fault of neither party. There this odd moral catch-22 in tort, where we want to compensate deserving plaintiffs, even though sometimes the defendant doesn’t deserve to pay.

That is (to me) a pretty compelling argument for some version of a strict liability model. The point would be to account for all the costs of medical injury, and distribute them in a stable, predictable manner.

It would be bad for med-mal plaintiffs attorneys, but the (supposed) point of malpractice litigation is to protect plaintiffs, not their attorney’s. Ditto insurance companies — the point is to protect the interests of policy holders, not rack up profits in the health insurance cartel, err, “industry.”

Cutting insurance profits, and transaction costs from litigation from the picture might be a significant step in reducing healthcare costs. And frankly, I don’t see that kind of model hurting society as a whole any more than the current model. I do see it hurting individual docs who are good care providers, however, because they would have to shoulder the cost inflicted by all the shitty docs out there.

Like you said, the AAJ (and also the AMA) would lobby like hell to prevent any such change. So the whole analysis is probably just a wishful exercise in blah, blah, blah . . .

I don’t think that model would hurt society, either. Except if there is an issue with authorizing care as there is now in the worker’s compensation system. It would keep attorneys from only taking the multimillion “bad baby” cases and would fairly compensate patients who suffered lesser injuries.
The fly in the ointment is the fact that all medical malpractice payments have to be reported to a central repository called the National Practitioner Databank. Settle too many suits and you become unemployable. Doctors would rather fight a questionable case than agree to a small payout because they don’t want to get listed in the Databank. We fear the bad outcome not only because of jackpot jury awards, but also because too many bad outcomes can end up costing you your livelihood.
This type of system doesn’t happen in any other business model in the US that I am aware of - not even with attorneys. An attorney can totally screw up your case and land you in jail, then can sue you for fees for his “representation.” Companies settle suits, admit no wrongdoing, and insert confidentiality clauses into the settlements all the time. No one litigant finds out about all the other people who have been injured by the company’s products.

By: SarahW

SarahW — Wed, 06 Feb 2008 17:35:07 +0000

And the spoiled milk analogy seemed to contradict your position - If a packaging plant sells good milk, and your bad storage or use beyond expiration date makes it go bad - and you feed it to your kid and he gets sick…who’s to blame, again?

Just like the hospital administering influenza vaccines - how do you tell where/when the contamination occurred? Why make the hospital liable for the bad outcomes 100% of the time when the hospital may not have been at fault 100% of the time? Even if there is a manufacturer recall due to contamination, the hospital is still liable for all of the costs of caring for patients who have been injured.