SYSTEM AS DEFENDANT

SUMMARY Though most hospital-based healthcare is multidisciplinary, medical malpractice actions usually single out individuals. This "witch hunt" approach has long been abandoned by the aviation and aerospace industries, which have much lower error levels.

A systems based approach to medical malpractice litigation would further improve community standards of medical care.

Though most hospital-based healthcare is multidisciplinary, medical malpractice actions usually single out individuals. The traditional model for medical malpractice litigation proposes that a single caregiver, usually acting in relative isolation, provides substandard care that is the direct cause of an adverse outcome.

This way of thinking ignores the checks and balances that other health professionals can and do provide to greater or lesser degree.

Analysis of incidents that result in an adverse outcome for the patient will often reveal a number of routine interventions that could and would, on balance of probability, have prevented disaster¹.

Practice Point

Litigation strategy might innovatively include failure of other caregivers to detect or correct the error

However, practice guidelines or standards for such secondary responses to a primary error are the exception rather than the rule. If a physician prescribes penicillin for a patient known to have a life-threatening allergy to the antibiotic, the administering nurse will also be held culpable for not checking with the patient or chart. If a senior physician fails to read, in timely fashion, a documented error by a junior physician on his team, s/he too will be held responsible.

Conversely, a nurse may be disciplined for not questioning or reporting a potentially dangerous deviation from standard medical practice, but the physician will be held judicially to have been acting autonomously.

Similarly, a specialist who clearly transfers the role of Most Responsible Physician to another because of a major change in the course of an illness will generally not be found liable for failing to monitor subsequent practice that is found to be substandard.

When a cluster of "suboptimal" acts are not deemed negligent but result in adverse outcome, the plaintiff understandably becomes frustrated.

This "witch hunt" approach has long been abandoned by the aviation and aerospace industries, which have much lower error levels. Pioneers in medical risk management are thinking about infrastructure rather than focusing on individual autonomy ^2,3. Such a systemic approach is central to the far more effective methods of error management that have been developed in industries that could not tolerate a fraction of the mistakes that occur in healthcare^4,^5,⁶.

A systems based approach to medical malpractice litigation would further improve community standards of medical care. If medical malpractice litigation is to continue to be an effective force in improving medical standards, plaintiff counsel may need to find ways of persuading medical expert witnesses, juries and judges to address systemic standards of care as a routine.

Practice Point

Consider claiming contributory negligence of hospitals for not having policies to detect or mitigate a physician's malpractice error

This approach implies not only attempting to hold nonphysician caregivers accountable for failure of the safety net, but also requiring physicians to explain why they did not challenge in timely fashion their colleagues' evidently substandard care.

Just as the nineties saw clinical practice guidelines democratised by Evidence Based Medicine ⁷, the time may be ripe for medical malpractice litigators to challenge the distorted concept that hospital caregivers act autonomously and in isolation from their treating colleagues.