Medical courts could ease US malpractice crisis, group says

There are two issues that need to be addressed. The first is the
causes of the failure of treatment, which may or may not be to botched
care and the second is compensation for botched care. Of these the first
may be the more important because so little credible data exists many a
botched patient evading detection and if detected public disclosure of the
causes and final outcome.

As a former recipient of many botched surgical cases in the US I am
acutely aware of the conflicts of interest. On the one hand is the need to
preserve one's own and the institution's referral lines and on the other
is the need to address the causes of the botched care and the patient's
ethical and legal right to compensation. Both testifying on behalf of a
colleague and on behalf of a patient can be double edged swords and so
most surgeons are not proactive and tend to disuade patients from seeking
compensation from litigation. As a consequence expert opinions tend to be
delivered by those with time on their hands and no substantial referral
lines to protect, unless persuded by the patint, does so for financial
reasons or under court order. If compelled to testify under court order
the opinion expressed is likely to be biased. More importantly litigation
has not eliminated the causes and are unlikely ever to do so for the
simple reasons that the outcome of cases is increasingly judged from the
existing evidence base which would seem to be largely a measure of
dclining standards of mediocrity.

I am not certain but strongly suspect that the large private US
clinics, such as the Mayo and Cleveland, forbid their employees from being
expert witnesses unless compelled to do so. What is more I have yet to
see a publication from such a clinic documenting the full spectrum of
causes of the many botched operations they have to resolve as a matter of
routine. From my experience the causes have included bemind-boggling
displays of pathophysiological and clinical ignorance, incomptence and
irresponsibility. If certification, recertification and credentialling
have made a difference they have addressed the unknown operations and
those performed for wrong and unknown reasons but not addressed the large
number of known operations poorly performed for the right indications.

Given this scenario a case can be made for establishing medical
centers whosse sole objective is to evaluate, define resolve and
adjudicate problems arising from botched surgical care. To be effective
they would have to be staffed by senior surgeons recruited from the best
of tertiary referral centers and generously rewarded. It would in effect
be a medical service analogous to that delivered in law by the US supreme
court. Botched medical care could also be be seen for such a center could
not function without a complementary number of complement senior
internists/physicians. The junior staff might even be recruited from
young clinicians who have completed their felloships and been in practice
for a number of years and wishing to broaden their clinical skills.

Given the large geographic area they would have to cover in the US
and the logistics of patient care there would have to be regional centers
and possibly a upreme court of last appeal located in Washington DC. NIH
could benefit from an influx of competent clinicians. The dominance of the
MD PhDs at the NIH has not been in the bsst interests of clinical care.

Given the constraints in hiring and firing and delivering clinical
excellence with any consistency in staet and federal institutions such a
service would be best funded by a consortium of private companies
concerned with containing the rising costs of care. To be really effective
the centers should be able to hire people from all parts of the world and
not be beholden to any professional regulatory body for certification,
recertification, or even best practices and guidelines set by a NICE.

If I were the minister of health in the UK I would give high priority
to establishing one center as soon as possible. The variation in standard
of care being delivered by part-time life appointees in the NHS would seem
to be just too great between and within institutions for any one
established institution to ever do that. Once one has a credible evidence
base from such an institution one would have the ammunition one needed to
define the epidemiology of botched/substandard care in other instutions be
they public or private. Leagure tables have not done that. By keeping the
data confidential the problems might then be resolcved systematically
without trashing the profession even more. Simply demonstrating to the
profession the extent of the deficiencies might be all that is needed to
resolve the problems.

Would the caseload be largee enough to support the foundation of such
institutions? That would depend on the compensation given for botched care
and the ease and rapidity with which it could be obtained. It would also
depend upon the threshold used in awarding compensation, a policy of
lowering the threshold progressively to both promote and accommodate
rising standards of care being desirable.

The Hammersmith, the Royal Postgraduate Hospital, might be the most
logical choice of hospital to transform into a prototypic supreme court
for surgeons in the UK. Its junior staff used to be largely experiencsd
doctors from the Commonwealth. Today it is staffed with life-time
appointees many of whom are MD PhDs and functions as a district hospital
with special interests such as endocrine diseases and in vitro
fertilization. In the late Professor Sir Iain Aird's day it was widely
recognized in the Commonwealth for its clinical excellence. I suspect it
would require a substantial ing change in staffing and a makeover of the
very shabby rabbit warren to turn it into a supreme court for the
profession. It might be easier to start from scratch in a smaller space,
such as the office space currently available near Hyde Park corner, and
converted to fulfill its needs.

Competing interests:
No patients

The UK system for compensating medical negligence is costly,
capricious, almost unbelievably bad and fundamentally unfair. Some people
who are harmed get a lot of money if their lawyers can pin the blame on
someone. Others will get nothing while their lawyers are handsomely
compensated and misdirecting judges can never be blamed.

I have only sympathy for Steven Ford (19 February) in his hope for
something better. However, I think he is looking in the wrong direction
for a solution. I think his naïve optimism in what the ‘coalition’ of the
willing will achieve after two years of deliberation is seriously
misplaced.

The UK can’t wait for recommendations from a country whose appalling
system of justice has developed a ‘malpractice litigation crisis’ as deep
as that in the United States. Being optimistic about the morality, values
and the ‘Common Good’ of America today is surely a misplacement of faith.
So all those in favour…?

Acknowledgement to: ‘Soundings’ ‘Tort’ by Kevin Barraclough. BMJ 12
February 2005.

Competing interests:
keen to see that change in the UK does not follow a US model