U.S. Supreme Court Justice Louis Brandeis urged sunshine for government: let the people see what their legislators are doing. Democracy will thrive when citizens glimpse the inner workings of government. Those workings may be messy, corrupt, woefully inefficient, laden with self-interested power ploys. Compare the making of laws to the making of sausages: we don’t really want to know what goes into the mix. But the alternative – ignorance – is worse.
So newspapers, muckrakers, ethicists all struggle to let the sun shine into the sometimes closed back rooms.
Mistakes, born from ignorance, inattention, malfeasance, sometimes just bad luck, happen in medicine (as in the rest of life). A patient goes to a physician, hoping for, expecting, one outcome; and the result may be dire, unexpected.
Enter the lawyers, shouting “malpractice.” Maybe the family should sue. Maybe the family can recoup money for lost earnings, for pain, for suffering, for a radical shift in life expectations.
Enter the hospital risk managers. The physician recedes to the background. The case proceeds, or not, depending on the lawyers’ expectations.
The premiums for malpractice insurance mount.
As for the family, it is left with an abiding distrust of everything medical. Lawyers – for the hospital, for the physician, for the family – take center stage.
What if we restaged the scenario, to push lawyers to the background, and keep physicians center-stage?
In reality, “malpractice,” denoting inexcusable incompetence and/or malfeasance, is one point along a continuum of mistakes. We don’t understand our bodies as well as we understand our cars (we didn’t design our bodies). And glitches emerge in treatment, in surgery, with drug regimens. A patient doesn’t respond as predicted. Sometimes a physician has cited the “odds” of success, but the patient hasn’t accepted those odds. Sometimes a confluence of bad-luck events beset an operation: the super-duper specialist on call has an accident en route to the hospital; the emergency room is swamped when the patient arrives; the translator was not instantly available; the first-year resident hadn’t seen a similar case. See any random episode of a hospital-based drama on cable to glimpse more of these. On television most of the patients end up OK. In reality, many patients don’t.
Claims did not soar.
Researchers compared claims filed between 1995 and 2007. In a recent article in the Annals of Internal Medicine, researchers offered the statistical good news. The result: fewer lawsuits under “transparency.” The hospital saw lower costs for liability.
As for patients, at this hospital they remained primarily patients, not litigants. Even in this era of technology, treatment begins with a patient-physician bond. The start of treatment is not a CAT scan or X-rays, but a conversation. The patient trusts the physician to use his/her expertise, skill – and art – to help him get better. When the patient gets worse, the bond of trust requires an honest conversation about what went awry. Indeed, nobody may be able to explain why a procedure went awry. But the conversation should still happen. Patients and their families will benefit.
Now it seems that hospitals and physicians may also benefit in lower costs for malpractice litigation.
Sunshine works. •
Joan Retsinas is the managing editor of Medicine & Health/Rhode Island, a monthly journal of the Rhode Island Medical Society.
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