MDNews - Greater Boston

mented after reviewing the reports, the question surgeons are left with is: What do I do in the meantime? When systems to prevent never events aren't yet in place, but reporting systems are, physicians are left with greater likelihood of malpractice suits. Safety in evidence "We have excellent people working in health care who are highly trained, of above-average intelligence, and especially conscientious, but who still make mistakes. And 99% of the time, those mistakes stem from a system problem, not a person's negligence," says Lucian Leape, A.B., M.D., adjunct professor of health policy at Harvard School of Public Health and Chair of the Lucian Leape Institute at the National Patient Safety Foundation. "Since progress comes from root cause analyses and those, in turn, from reporting, reporting can facilitate system changes." Dr. Leape also notes there are two levels of reporting required: internal reporting and public reporting. It's in this distinction that surgeons fearing malpractice suits but wanting to pre- vent never events may take some refuge. When hospitals report errors to the public, they tend to shift responsibility off the surgeon and onto the system, and with that responsibility goes some of the liability. Additionally, in August 2008, CMS discussed never events in terms of "injuries or illnesses that could have been prevented if the hospital had taken proper precaut ions," lay ing t he onus of t hese occurrences on institutions rather than individual surgeons. "A hospital that's really serious about improving quality internally will work with people in the hospital [and those] who have made mistakes to find how to change them," says Dr. Leape. "The internal reporting has to be safe, and it has to be productive; a person — a doctor, a nurse or anyone who sees something wrong or hazardous before someone's been hurt — has to believe by experience that it's safe to talk about, but also that something will happen. ... When hospitals do that, they see great improvement. There are a handful of hospitals with tremendous progress, and the common feature is that it's safest to talk." ■ res i psa s pe aKs fo r its elf Should A never event occur and an injured patient decide to sue the physician for malpractice, physicians are in a position antithetical to the tradition of american jurisprudence; that is, they become guilty until proven innocent. this swing against the historical method of dispensing justice comes from a patient's attorneys arguing that, as the never event occurred, further argument is immaterial. this argument is called res ipsa loquitur, which translates to "the thing speaks for itself." Because the patient has obviously been harmed, the physician essentially must prove the event didn't stem from negligence — a difficult argument to make when the plaintiff had surgery performed on the wrong leg, for example. due to the nature of res ipsa jurisprudence, malpractice suits are almost always settled out of court. and it's no surprise: the typical juried case costs hospitals $2.75 to every dollar they would spend settling privately. MdneWS.coM ■ MD News Greater Boston |9

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