—Edbril, Lagasse, Liang, Cullen, Gauge, Hogan, and Lavaruso all agree that the present medical malpractice tort system falls short of its goals of minimizing patient injury, maximizing patient safety, and compensating injured patients. Indeed, our original manuscript examining the relationship between malpractice litigation and human errors merely adds to a growing body of evidence supporting this contention. 1–6Therefore, the apparent controversy lies only in the possible solutions to the problem.
Liang and Cullen suggest that we need to focus on evidence-based medicine and patient outcomes, encourage open reporting of medical error by providing immunity from legal discovery, and institute data standardization, nonpunitive reporting approaches, and interprovider analyses that might yield insights into methods to maximize patient safety and minimize error. 7Interestingly, all of these features are characteristics of our structured peer review model. Peer review, conducted under the umbrella of quality management, is protected from legal discovery. Our peer review process examines both system errors and human errors with standardized methods of reporting and analysis. By looking at the system as critically as we look at each other, the anesthesiologists in our department begin to share the responsibility with management for delivering quality health care, thus making quality control through peer review less threatening. Many of the errors that we identify as system errors would be considered as unavoidable and discarded by other review mechanisms. By including these occurrences in our peer review and defining them as system errors, they provide additional interprovider analyses on causative factors contributing to adverse outcome and allow for improved quality by their elimination. System errors, identified by our peer review process, account for nearly 90% of the errors. Another way to consider this is that without looking at system errors the vast majority of causes for adverse outcomes, as determined through peer review, would be excluded. Hence the major possibility for improvement in quality of patient care would be excluded. Human error, in contrast, contributes only a small portion to adverse outcome (approximately 10%), but in the past dictated the major focus of quality assurance measures. In other words, if all human error could be removed, it would have only a small impact on the overall quality of care (indicator occurrence) when compared to the impact of removing all system errors. 8It is extremely important to understand that error is defined in our model as an act that from ignorance, deficiency, or accident departs from or fails to achieve a desired outcome. 9Although all errors may be preventable over time, human errors can be prevented by an individual working under our present standards of care, but system errors can only be prevented by changing our standards of care.
Gauge attacks the “accuracy” of our system by comparing it to a study by Liang. 10Unfortunately, this study was not in print at the time of our original manuscript, so we were unable to comment on its content previously. It is impossible to compare our structured peer review model to the survey of Liang because of differences in methodology. Although both methods provide structure to the review process, the reviewers in the Liang study were acting independently without the benefit of group discussion. Multiple studies have shown that simply providing structure to a peer review process is insufficient to provide adequate agreement among reviewers. 11,12Although it is true that our initial abstracts were sometimes prepared without the assistance of the anesthesiologist(s) involved, most adverse events were self-reported by that practitioner. 13Also, the involved anesthesiologist(s) were generally present for the discussion and error analysis. Finally, the suggestion by Gauge that this peer review mechanism would be corrupted, if it were applied to patient compensation, is an interesting speculation. Perhaps, Gauge would be more comfortable with a no-fault system of medical liability. The stability with which all adverse outcomes occur suggests that this may also be a viable alternative. 1,8
Hogan and Lavaruso wish to preserve and modify the present malpractice tort system. Their argument that the tort system should be preserved because it is our “best weapon in the battle for autonomy against managed care” must raise a smile on the faces of those who see similar value in both. As for their remaining arguments, the principles of scientific medicine are part of every medical school curriculum in the United States, and a stronger focus is being made on evidence-based medicine as we struggle to be cost effective. Increasing public exposure to courtroom proceedings, however, demonstrates that the legal system does not suffer from the same imposed cost constraints, nor does it adhere to the same scientific rigors. The lack of a response to the growing body of evidence that the tort system falls short of its goals is a good example. The suggestions for a Specialty Board of Legal Medicine and a Medical Malpractice Bar appear to offer a niche for a new breed of practitioner, but the legal profession should test these remedies with the same scientific principles and cost consciousness that the medical profession applies consistently.