To reduce malpractice litigation, stop making mistakes

An astounding number of deaths and serious injuries are attributable to medical error.

This is a public health problem of great import, especially because it turns out that a great number of those errors could be averted. Human error is inevitable, to be sure, but evidence-based protocols can eliminate a great deal of those mistakes.

Unfortunately, healthcare providers spend far too little time emphasizing patient safety and far too much time denouncing lawsuits that aim to compensate the victims of medical malpractice. There is one good way to reduce the incidence of medical malpractice litigation: reduce the incidence of malpractice.

This is eminently achievable, as a new Public Citizen report about obstetric safety demonstrates. Obstetrics are an especially important area in the medical malpractice liability debate, because obstetric malpractice can have such tragic impacts on both birthing mothers and newborns, and is therefore responsible for a relatively high proportion of the largest malpractice liability awards.

Preventable errors in obstetrics are legion. A report from the federal Agency for Healthcare Research and Quality estimated more than 157,000 injuries to mothers and newborns during childbirth that could potentially have been avoided — in just a single year. Performance varies drastically from hospital to hospital, underscoring that good practices make a huge difference. Controlling for demographics and other factors, one recent study found unexpected medical complications in deliveries to be two to five times more likely in low-performing hospitals as in high-performing ones.

Hospitals and hospital chains that have undertaken focused, affirmative efforts at improving obstetric care and avoiding preventable errors have demonstrated dramatic improvement in performance:

  • Hospital Corporation of America reduced maternal fatalities from pulmonary embolism by 87 percent.
  • New York Presbyterian Hospital registered brain injuries from oxygen deprivation to newborns at a rate 98 percent below the national average.
  • Ascension Health, the nation's largest Catholic hospital network, reduced incidence of brain trauma at four pilot sites by 85 percent.
  • Premier Inc. health network reduced birth trauma among full-term newborns by 74 percent.

The best practices and standardized care protocols to achieve these improvements are straightforward. Remember, this is about eliminating preventable error — not employing novel or innovative techniques.

One important step is enhancing communication among obstetrics teams, including through such simple measures as establishing standardized ways of articulating common occurrences, and getting away from the notion that "the doctor is a demigod who should not be questioned," as one leading researcher put it.

A second key measure is discouraging induction of birth before 39 weeks of gestation unless there is a medical reason to do otherwise.

A third key step is reducing unnecessary cesarean section deliveries, which are far riskier than vaginal deliveries in cases where they are not medically necessary. Cesareans now make up almost one-third of all births, a sharp spike from two decades ago, when the rate was around 20 percent. A study published in Health Affairs found that rates vary dramatically among hospitals, from 7 percent to 70 percent and 2.4 percent to 36 percent among a lower-risk subgroup. The differing rates "indicate a wide range in obstetric care practice patterns across hospitals and signaled potential quality concerns," according to the study authors.

For decades, insurers, hospitals and doctors have lobbied to strip away the legal rights of those injured by malpractice. In many states, malpractice victims find themselves victimized again, by legal rules that prevent them from receiving just compensation. But the insurance-medical-industrial complex is not satisfied and hopes to establish federal rules to diminish victim rights further.

Instead of taking away rights, it's past time for the healthcare industry to focus more attention on eliminating preventable error and improving patient care. There's an abundance of data that extraordinary improvements can be realized, if only healthcare providers make the effort.

Weissman is president of Public Citizen.