Medical error and liability: A changing legal landscape

The commission of errors is an unavoidable part of human existence.1,2,3 While errors might be as benign as misplacing car keys, their existence in the medical arena might be disastrous, causing injury or death.

Some industries, such as aerospace and nuclear power, have implemented systematic approaches to error reduction, but such approaches have not yet been widely adopted by the medical profession. Consequently, error rates in medicine remain unacceptably high. The risk of medical errors is compounded by a changing legal system that increasingly focuses on what might have been (rather than what usually is) done to prevent a mistake.

In this two-part series, we will discuss the problems of medical error and liability, the implications of technology on error reduction and prevention, the trend in modern malpractice law to replace a standard of care enforcing what is customary in the industry with a reasonable-doctor standard and the ways in which the veterinary profession might use technology to safeguard itself against liability while providing the best possible care for its patients.

Sounding the alarm

Studies of error rates in the human health-care industry are sparse but alarming. A 1991 Harvard Medical Practice retrospective population study revealed a rate of iatrogenic injury of 3.7 percent of patients hospitalized in New York State in 1984.4,5 This value equals 98,609 patients in New York alone. Worse yet, nearly 14 percent of these injuries ended as fatalities. Application of this rate to the United States population of hospitalized patients would equal approximately 180,000 patients suffering death due to iatrogenic injuries each year.5 A similar study documented an adverse event rate of 2.9 percent, with death resulting in 6.6 percent of such cases.6 The U.S. Institute of Medicine estimates that between 44,000 and 98,000 human patients die each year as a result of preventable medical errors.1

Another study of intensive-care-unit errors determined that the hospital staff was functioning at a 99 percent proficiency level.7 The apparent excellence of this number deceives, as the resultant 1 percent failure rate is much higher than tolerated error rates in the aviation and nuclear-power industries.7

In fact, an error rate of "only" 0.1 percent would translate to two unsafe plane landings per day at O'Hare, 16,000 pieces of lost mail every hour and 32,000 bank checks deducted from the wrong bank account every hour.2 Simply put, current error rates in the human health-care field would be considered catastrophic in many other industries.

Besides the physical consequences, such errors entail psychological, public relations, employment and legal consequences. It is a common occurrence in medicine for the commission of errors to be equivalent in the mind of the erring party to ineptitude, inadequacy or flaws in their character.1,7,9,10 Such errors might earn ridicule and scorn by peers. Ultimately, the discovery of an error may precipitate professionally debilitating consequences in the form of a medical malpractice suit, the loss of medical license9 or withdrawal from the practice of medicine.

Public responses to medical error might parallel the ostracism seen in professional circles. As it becomes known that specific practitioners committed harmful errors, it is likely that patients will avoid those practitioners. Individuals and the institutions in which they work share the burden of these consequences.

Key message for veterinarians

While studies of error rates in veterinary medicine have not been published, it is reasonable to include the profession in our discussion.

Both human and veterinary medicine embrace core values that are nonconducive to the reporting and correction of errors. Cultural normalcy in medicine expects perfection. Medical schools foster such expectations, subsequently reinforced throughout practitioners' careers.9,10 Perfection — by definition unattainable as it relates to humans — is the benchmark by which all members of the medical profession are judged.

This expectation results in the tendency for errors to be hidden, and not discussed by peers out of professional courtesy.9,10

Error management in such an environment stresses individual punishment, rather than the address of underlying causes.9

All too often, error is associated with a "badge of shame," as well as a high risk of legal entanglement in malpractice proceedings. The assumption is that such proceedings reduce error, but there is no evidence of that.

How important are systems?

A zero accident rate is a benchmark objective for the aviation industry. It is known that human factors are the leading cause of aircraft accidents and that flight-crew errors have been the most common cause of commercial jet accidents.12 Errors are accepted as inevitable, and airlines have systems designed to circumvent and prevent them and to allow underlying causes to be pointed out and resolved without fear of disciplinary action.12 Perhaps similar approaches in human and veterinary medicine would yield similar results. (Example: See "Freedom from fear")

Freedom from fear

When examining medical errors, the phrase adverseevent often is used. The Harvard Medical Practice Study defines adverse event as "an unintended injury caused by medical management and that resulted in measurable disability."5 It is important to distinguish this term, which does not imply substandard care, from the terms negligence and malpractice.

Black's Law Dictionary defines negligence as "failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly or willfully disregardful of others' rights."14 The commission of error is a necessary but not sufficient predicate for negligence,5 as a negligent action implies a degree of error that exceeds an accepted norm. Malpractice has been defined as a failure of one charged with exercising ordinary diligence, care and skill commensurate with members of his profession9 and, in Black's Law Dictionary, as "an instance of negligence or incompetence on the part of a professional."14

In spite of these generic definitions, it is likely that a board of veterinary medical examiners could arrive at a very different standard of care in an administrative court of law as opposed to a jury of one's peers in a case involving civil litigation.

Quality of care

The concepts of negligence and medical malpractice originate in tort law, also known as the law of civil wrongs. Tort law, as it relates to medical malpractice, intends to promote quality care by imposing economic damages against people who commit medical errors4 in order to compensate victims.

Suggested Reading

Though intended as a compensatory system, it functions as a punitive system because it requires proof of individual fault in order for injured parties to receive compensation.15 However, an adverse event in medicine does not indicate poor quality care any more than the absence of one proves the existence of high-quality care.4 This punitive model thus harbors a serious flaw, for it demands the assignment of fault without regard for overall level of care. Therefore, even when minor errors result in injuries, they can produce serious legal consequences.

A changing system?

Tort or liability reform has been identified as an important element in the reduction of medical errors.16 Nonetheless, this requires an open environment with voluntary reporting to facilitate the study and elimination of errors and that is not realistic when it is linked to a legal system that generally honors claims of confidentiality. Such reform hopefully will be addressed, but we must deal with the current system until then. How, then, do juries assess what is standard when trying malpractice cases?

The concept of an industry-wide standard of care surfaced in the 1930s in the marine shipping industry and supplies the legal premise of this article. The 1932 precedent-forming case, T.J. Hooper v. Northern Barge Co.,17 involved the sinking of several coal barges in a storm off the Atlantic coast.

The plaintiffs alleged that the tugs, T.J. Hooper and Montrose, were unseaworthy in not having effective radio sets capable of receiving weather forecasts. Although such radio technology was not heretofore standard in the shipping industry, its presence on the defendant's tugboat might have prevented serious and expensive property damage. Justice Learned Hand thus held the defendants negligent for their failure to install this equipment, in spite of the fact that such installation was not an industry custom. This established a precedent that an entire industry could be found to be below a "reasonable" standard of care.

While the Hooper case changed legal determinations of negligence in industry, the diffusion of such reform into medical practice lagged behind. Traditional tort law has offered physicians the privilege of setting their own legal standards of conduct through the adoption of practices that were common to the industry. These so-called "custom-based" standards are established via expert witness testimony regarding the customary actions or inactions of fellow medical professionals.

However, the 1974 Washington case Helling v. Carey established the legal precedent of a "reasonable physician" standard in medical malpractice cases. In this suit, an ophthalmologist was held liable for negligence because of a failure to administer a simple test that would have detected glaucoma, even though it was not customary to perform this diagnostic test on women in the plaintiff's age group.18

While courts generally adhere to custom-based standards when trying negligence cases, an increased number of "reasonable physician" interpretations indicate a paradigm shift. In other words, as in the T. J. Hooper case, the court in Helling adopted a standard of care independent of that which was the custom of the industry. Though still the minority position, this trend could become the norm in veterinary medicine as well.

A recent Arizona court case involving pet cremation, Novak v. Arizona State Veterinary Medical Examining Board, exemplifies this paradigm shift.19 In this suit, a veterinarian was found guilty of misrepresenting services rendered and of violating the ethics of the profession. The basis for these findings was the veterinarian's use of a crematorium that disposed of the pet's remains in a crude and incomplete manner.

While the defendant maintained his ignorance of the manner in which the remains were disposed, both the State Board of Veterinary Medicine and the Superior Court of Arizona found that state statutes do not exempt unknowing or accidental misrepresentations of services rendered. This decision clearly establishes a "reasonable" standard of care, one that "does not refer to the professional industry standards when considering whether the conduct is unprofessional."

A notable 1994 Cornell Law Review article tackled the subject of President Clinton's failed health-care reform efforts.20 An emergent issue was the tort reform required to handle the differing financial resources of the 35 million to 40 million uninsured Americans who would be provided minimal health-care coverage under Clinton's plan. Traditional medical malpractice law refused to formally recognize the crucial role of patient resources in determining the kind and degree of medical treatment provided for them. The law has instead insisted on a unitary, wealth-blind standard of care when arbitrating medical-malpractice claims.

Minimum standards

Although it is common knowledge that veterinarians can and do provide differing levels of care that are dependent on clients' choices and financial resources, such activity lacks a legal precedent. The advent of Clinton's proposed minimal health-care coverage thrust a problem very familiar to veterinarians into the public consciousness.

How would the minimal or suboptimal provision of human health care be evaluated when such care failed to meet the customary standards of the medical profession? Would future courts be forced to consider the economic capabilities of medical patients before arriving at a customary standard of care?

The T.J. Hooper case established a precedent that the advent of a single technological innovation (e.g., a receiving radio) could shift the relevant safety standards for an entire industry. Although this may have made sense for the tugboat industry in 1932, rapid innovation in contemporary medicine confounds attempts to establish a professional standard of care. Variable client resources further frustrate such attempts in veterinary medicine.

A fairly recent Washington and Lee law review article examined the application of the findings in the "Hooper-like" Helling case.22 The authors noted that traditional tort law grants the medical profession the privilege (usually denied to other groups) of setting its own legal standards of conduct based on custom. Not surprisingly, this rule has spawned many subsidiary doctrines that limit or explain its operation. They include the following:

» Requirement of expert testimony to educate juries about customary practices.

» The "two schools of thought" or "respectable minority" rule that precludes liability when physicians are divided among two or more respectable schools of thought and the defendant chose one of them.

» The "within the locality" rules, now substantially diminished, which determine the geographic source of binding customary norms.

» The "error in judgment" rule that insulates reasonable treatment decisions that resulted in bad outcomes.

» The "best judgment" cases requiring physicians with unique information to use it regardless of customary norms.

» The experimental protocol cases that permit patients to consent to non-customary experimental treatments, at least where conventional care is ineffective.

» The consent to unorthodox treatments that allow patients to opt out of conventional ones.

» The "common knowledge" cases that permit plaintiffs to recover despite the absence of expert testimony and despite evidence that the physician had complied with customary norms.

» Endless refinements of the phrasing of the standard of care, e.g., requiring "average" skills or those equal to physicians in "good standing."7

This law review article found that 17 states rejected deference to custom in medical-malpractice suits. In at least 12 of these states, courts expressly refused to defer to the "customs of the profession" as the standard of care.7 Statutes or case law in nine other states have phrased the standard of care in terms of what a "reasonable physician" would have done, rather than what is customary for the profession. The authors then concluded that modern malpractice law is moving away from a custom-based standard of care and toward a reasonable-physician standard. Under this assumption, courts could follow the new line of precedents for physicians and seek to determine the standards for "reasonable veterinarians" in malpractice proceedings.

Getting even more complicated

Today's health-care providers are confronted with a huge array of new diagnostic tools and therapeutic agents. Furthermore, the sets of problems and corresponding solutions are vastly more complicated in medicine than the changes in custom that the court invoked in the T.J. Hooper case.

In general, barges are relatively similar, one to another. In contrast, human and veterinary patients — even those with the same illness or injury — may require or benefit from different diagnostic approaches and treatments.

This makes it nearly impossible for expert witnesses or juries to reach a common understanding regarding appropriate customs for human or veterinary health-care practitioners. All too often, there may be several reasonable diagnostic or therapeutic protocols that are customary, and not just one.

A shift from a "custom-based" to a "reasonable-physician" (or veterinarian) standard would open new avenues of liability. In light of available data regarding human error, methods for its reduction and the application of such findings in medicine, "reasonable" treatment decisions likely will be determined with such elements in mind.

This paradigm shift underscores the need to reduce medical errors wherever possible, not only because such reductions benefit patients, but because they insulate practitioners from liability when adherence to custom no longer does.

Next month, we will more closely examine the specific ways in which veterinarians might use new technologies to reduce errors in the workplace.