Legal liability and managed care

Journal of Public Health Policy,  2002  by Bovbjerg, Randall R,  Mariner, Wendy K,  Martinelli, Laurie A

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The statistics are depressingly familiar, highlighted by the Institute of Medicine in To Err Is Human. Some 3 to 5% of hospital charts document medical injuries, a third or more of them preventable. The book successfully drew long-overdue national attention, prompting calls for ever stronger litigation and discipline, but has failed to shift the dominant paradigm from such blaming of individuals to improving systems of care, a new "patient safety" approach.

Those who care about how much public health can contribute to population well-being should especially appreciate the stakes here. For traditional injury policy treats medical injuries much as acute medicine treats ordinary illness, whereas patient safety approaches resemble public health.

A presentation slide summarizes the relationships (figure). Acute care addresses presenting problems in isolation, only after symptoms appear. Investigation is often elaborate and expensive, treatment often invasive. Patterns of diagnosis and treatment vary enormously by circumstances, geography, and-sadly-the finances of the actors.

Public health focuses on populations, not individuals. It systematically gathers data and seeks out underlying, root causes. It emphasizes prevention to reduce needs for later treatment. It tailors interventions to conditions and populations-utilizing environmental, social, and educational methods as well as medical ones. Public health also emphasizes the needs of those least able to help themselves.

The figure says that "medical fault finding is to patient safety systems as acute health is to public health." Traditional thinking about medical injury fits the acute paradigm. It blames injury on unusual individual carelessness or incompetence, to be eliminated through peer review, discipline, and lawsuits that "treat" each blameworthy caregiver (and sometimes their institutions).

Yet fault-finding's safety record is weak, in part because it finds so few cases, and avoidable medical injuries remain a huge public health problem. The liability system also drastically "underserves" the injured population theoretically entitled to compensation, particularly the elderly.

Enter a new paradigm-the fledgling patient safety movement. It holds that caregivers make mistakes not because they are faulty but because they are human. Safety managers analyze many types of evidence about population injuries, close calls, and other error reports to find root causes and systems problems. They foster a culture of openness about problems to generate the information they need and to facilitate education and change. Safety analysis and interventions thus address the entire chain of causative elements in the full continuum of care, not just shortcomings in the last link to patients. In short, the philosophy is to fix problems, not blame, to support caregivers, not stigmatize them.

Systems safety has an excellent track record in industrial and workplace applications, notably in aviation. There, injury rates were high even given pilots' and workers' instinctive self-preservation and even with strong external rules and sanctions, and adopting a systems approach cut deaths and injuries by orders of magnitude. Early applications in health care are promising.

Alas, while either acute-blaming or population-safety efforts can help avoid injury, the two policies are hard to apply in combination. Intensifying the blame heaped on caregivers discourages them from openly acknowledging problems, inhibiting learning and development of innovative ways to reduce risks. Willing cooperation matters because most injuries in medicine are hard to see from outside. Here, medical injury is not analogous to ordinary injury: Medical injuries affect people who are already hurt, so are hard to differentiate from the underlying condition. Errors without injury are even harder to identify, and under-identification of risks hampers any approach to injury prevention.

How to mesh patient safety approaches with traditional outside accountability for injuries is a great challenge for injury policy. One key could be reducing the stigma and cost of liability by moving to no-fault compensation; another might be to ask that buyers and managers of care promote safety above sanctions. Those systems fit the figure's analogies as well, though space allows only brief mention. Like fault-based liability, ex post litigation against managed care companies take the acute approach. No-fault compensation and advance regulation of managed care take the systemic, preventive, population-oriented approach of public health.

In sum, good social policy calls for devoting more attention to systems and populations, so as to prevent problems and avoid the need to rely on more costly (and less pleasant) acute systems. Public health professionals, take note. Much constructive work remains to be done at this policy interface.

Wendy K. Mariner

In this country, the general rule is that every organization and individual is responsible for its own wrongdoing. Thus, every hospital, nursing home, and insurance company is liable for any personal injury it causes by negligent or wrongful acts.