We're Not Your Enemy

Reprinted from Patient Safety & Quality Healthcare July / August 2007

An Appeal from a Consumer to
Re-imagine Tort Reform

By Susan S. Sheridan, MIM, MBA, and Martin J. Hatlie, JD

If there is evidence for anything in the medico-legal research, it is that the tort system under-compensates the majority of patients and families who have experienced medical error (Brennan et al., 1991; Localio et al., 1991; Studdert et al., 2006). Yet many professional societies, liability insurers and other organizations that ardently champion evidence-based solutions continue to support a tort reform agenda that, at its core, seeks to reduce the amount of compensation paid to those injured by medical error or systems failure.

True, the evidence also indicates that many litigants are not the victims of reasonably foreseeable and preventable harm (Brennan et al., 1991; Localio et al., 1991; Studdert et al., 2006). Tort reform advocates also argue that many plaintiffs who have valid claims appear to get excessive "lottery ticket" awards from angry juries, although these are often reduced on appeal or in post-trial settlements to much-reduced values. In any case, it is a crude fix to address these concerns with a poorly performing litigation system by imposing monetary caps on damages and limitations on joint liability that apply across the board to meritorious and unfounded claims alike.

If patients and families are under-compensated by the medico-legal system, their damage is born by other social bodies, including the family and government. The social cost of medical error has not been well studied, and we suspect that costs of medical error would be much increased if correlations between medical error and subsequent medical care, lost productivity, depression, divorce, dysfunction, and suicide were more accurately measured. Indeed, a frequent presumption in patient safety advocacy is that initiatives like full disclosure and apology are socially desirable because they deflect malpractice claims. We respectfully suggest that the patient safety research agenda should be expanded to include the impact of medical care on family well being, Medicaid expenditures, and other costs before further efforts to limit compensation to patients are implemented via traditional tort reform.

Tragically, traditional tort reform advocacy pits consumers and providers against each other as if we were enemies. Surely, we can do better than bandaging up a poorly functioning legal dispute resolution system that serves neither of us well and continues to perpetuate a culture of culpability focused on professional negligence. We must do better than that if we are to achieve sustainable cultures in healthcare that are perceived to be just.

We have previously suggested an alternative tort reform agenda that would substitute a reasonable schedule of damages for arbitrary caps, modify or abrogate the National Practitioner Data Bank, and encourage the availability of alternatives to litigation for parties that wanted to use them, among other provisions (Hatlie, 2003). We have developed similar themes in testimony before the U.S. Senate Finance Committee. Our ideas were reiterated in the context of an appeal by Susan Sheridan to attendees of the 2007 National Patient Safety Foundation Congress. That statement is reproduced here:

"Thank you, National Patient Safety Foundation, for your courage to invite me here today and for valuing the contribution of real life experience in the tort system from a plaintiff's point of view.

"One might say that I have witnessed it from the trenches. I have been a plaintiff — twice. The first time we sued because we naively trusted the tort system. The second time, we litigated extremely reluctantly and only because we were given no other choice by the providers who harmed us. I have the desire — and more importantly — the duty to speak with complete candor to you today, not to shock or blame but to illuminate, to teach, and to inspire you as leaders to challenge the long-standing stalemate on tort reform between consumers and providers in this country. The very nature of our tort system polarizes us as enemies. Can we commit to moving our worlds closer together?

"I invite you to join me in envisioning a future where patients and healthcare workers, professional organizations, insurance companies, accreditors, attorneys, judges, and risk managers can combine our hard-won knowledge, our wisdom, and our courage to do what is right. By that I mean recreating and co-creating a tort system that is just.

"My family has experienced two medical errors with devastating impact. One resulted in the death of my husband, Patrick, due to the failure to communicate malignant spinal cancer pathology. This systems error resulted in a delay in treatment for six months and the subsequent penetration of the tumor into his spinal cord. The other error caused the permanent brain damage of our newborn son, Cal, in 1995 from the failure to test and treat his newborn jaundice. His condition is known as kernicterus, and today Cal has cerebral palsy, cannot walk independently, and is hearing and speech impaired. Although his cognitive abilities were spared and he is a smart little boy, he has uncontrollable movements of his body that present enormous challenges every day of his life.

"Unfortunately in media and tort conversations, patients are often characterized as greedy, angry, and eager to sue when medical error occurs. We sued in Cal's case because we faced enormous medical expenses and honestly believed a lawsuit was the path to justice. Cal's life care plan is projected to cost several million dollars, and as parents we had the responsibility to provide for him.

"By the time Pat's injury occurred, we had spent years in litigation over Cal's treatment including a trial that was then on appeal. We made it very clear to the hospital and the surgeon who had treated Pat that we did not want to sue because we had come to believe it was a dishonorable system. Initially we met together and had sincere conversations. We were told to track our out-of-pocket expenses for Pat's treatment and submit them to the hospital. However, we were later told that the surgeon's group and the hospital had different insurance companies, that legal counsel was involved, and that we were NOT to have any communication at all with the hospital or doctor's group. Basically, they were preparing to point the finger at each other and so neither was comfortable with the other talking to us. We were stuck in the middle, and communication came to a screeching halt. After a futile attempt to find legal counsel who would take our case on the condition that we not sue, we filed a lawsuit just before the statute of limitations would have terminated our rights. A four-year litigation process ensued.

"My family has learned from these experiences that the legal system does not serve the needs of many families who have been harmed, and I say that even though in the end many would say we 'won' our malpractice cases. What is justice? As we tried to do what was right for our son, to Pat, and me it meant:

prompt and fair financial compensation,
change in the practices in our healthcare community to assure that the error Cal experiences that was never supposed to happen couldn't happen to another baby, and
honesty, integrity, and honor in the judicial process.

"I think we also hoped that our healthcare providers would hold themselves accountable for what happened to Cal, and make some expression of compassion for our son. Instead, our litigation process in Cal's case took over eight years and included:

two-and-a-half years of discovery,
a seven-week trial, ending in a jury verdict for the defense,
a post-trial motion by the defense seeking to collect $114,000 from Pat and me for their court costs, which would have forced us into bankruptcy,
The judge's decision to reject the verdict as not substantiated by the evidence and order a new trial,
a subsequent appeal of the judge's order by defense,
an Idaho Supreme Court hearing, and subsequent decision upholding the trial judge's order for a new trial,
two more years of discovery,
three extensive mediation sessions,
hundreds of depositions,
hundreds of thousands of dollars in discovery and trial costs, and finally
settlements that amounted to a fraction of the total amount spent in the process.

"During those eight years I secretly pursued every credit card offer I could get my hands on, and got a home equity line to cover the expenses to get Cal and Pat necessary treatments that they needed. During those eight years, Pat died never knowing if his son's case would ever result in justice or if Cal would be financially secure. He also died feeling betrayed by a surgeon who was once his hero, but who disappeared instead of sitting down and talking with us about what had happened to Pat and why.

"Now as a widow and a mom to a disabled little boy and a nine-year-old little girl, I have gained insight into the reality of the tort system that I would never have imagined going into it. What I have learned from my experience and my activity as chair of the World Health Organization's Patients for Patient Safety program, where we work with patients all over the world, and as president of Consumers Advancing Patient Safety, is that medical error is a common phenomenon regardless of geographic location, economic condition, or language. It is also a human phenomenon that is profoundly challenging to us all. But while we acknowledge now that 'to err is human,' sadly when it happens it still is treated in a tragically inhumane manner. Medical errors or systems failures cause tremendous sadness, loss, and life experiences that I would never have imagined as a woman, a wife, or a mom.

"The errors that occurred in my family were unintentional mistakes, and Pat and I knew that. But what happened after the medical errors and how my family was treated through the litigation process was deliberate, calculated to harm us, and by far the most disturbing experience in my life. Initially we trusted the wisdom of the jury, the integrity of healthcare professionals involved as defendants and experts, the lawyers and the long history of our judicial system. Instead we witnessed a system where fairness had shockingly deteriorated; a system that cannot be trusted by patients or doctors alike; and a system that we naively believed would be based on truth, that would contribute to safer care in the future, and that would deliver fair compensation.

"We learned with great alarm and extreme disappointment that litigation is a 'win-at-all-costs blame game,' that it is wildly inconsistent and deviously strategic, and which rarely makes our healthcare system safer. We learned that expert testimony could be bought, that medical records could disappear, and that patients and family members were often pressured to keep quiet in the settlement process. We witnessed a culture of collusion and cover up. We learned that this was a system where patients who file lawsuits are often perversely blamed. In Cal's trial, Pat and I were portrayed as negligent parents, and relatives who were nurses were accused of not living up to their professional oath. Defense experts characterized my son's medical condition as idiopathic and concluded with testimony by a very prestigious physician who, based on a single entry of a headache in my prenatal chart during my last week of pregnancy, stated it was more likely than not that I passed an unspecified viral inflammation to Cal than that he was injured by elevated bilirubin levels that were well documented.

"I also have learned with great pain that the vilification of patients who sue continues after trial. Because we sued, healthcare providers in our hometown refused to treat us in a manner that I was surprised to learn was legal. There is one pediatric neurologist in the state of Idaho, and he informed us by registered letter that he would not treat Cal even in the event of an emergency. When Pat experienced a leakage in spinal fluid while recovering from spinal surgery, we were informed that the hospital where Cal had been injured would not admit him. We were forced to airlift Pat out of state at a cost of $13,000. He needed six stitches, which a resident performed.

"Does our jury system work? Has anyone asked the jurors? We witnessed a system where a jury is given the daunting and impossible task of muddling through dueling expert witness testimony and of determining medical diagnosis. After Cal's trial, I met with some of the jurors who shared their difficulties with being away from families and their jobs. One elderly man slept through much of the trial, one was sick and brought his blankie and pillow, and some said that it was over their head because they weren't medically trained.

"So, what were the biggest lessons learned and opportunities for the future? First, we must do better at ensuring the integrity of expert witnesses. We witnessed a defense strategy infested with expert witnesses willing to offer unscientific and fictional testimony known as junk science either to help a colleague or for handsome fees. One defense expert in Cal's case charged $34,000 for preparation and a half-day of testimony. As the trial judge stated in the memorandum decision accompanying his order to set aside the jury verdict, 'the expert witness testimony was offered for the mere purpose of obscuring the actual circumstances or misleading the court or the jury.' He went on to say, 'I have great difficulty when the expert appears to be straining an opinion to meet the requirement of advocacy. Unfortunately in my experience, this latter spectre occurs far too frequently in medical malpractice cases, where it appears to me that medical witnesses are willing to bend their testimony.' He concluded by observing, 'All of the experts, on both sides, viewed this case as a competition ‚ a verbal jousting match between lawyer and witnesses.' (Sheridan v. Jambura et al., 1999)

"I filed a grievance against the expert witnesses with their professional societies, another eye-opening experience for us. I learned that one national medical specialty society had no grievance mechanism consumers could initiate at all. Another accepted my complaint and conducted a "fair hearing" of the doctor before three of his peers. I was told this was a non-adversarial process, and that I could observe but not say a word. At the same time, the expert being reviewed was allowed to bring counsel, and that counsel was the hospital lawyer who had hired him to offer the suspect testimony in Cal's case. Counsel did not argue the facts about whether or not Cal had kernicterus. Rather, his defense was that our motivation in bringing a grievance was to eliminate the participation of the expert in the new trial that was pending, an allegation I was not permitted to even address. In truth, we knew from the discovery process that the hospital had no plans to call this expert again. One-sided advocacy is not a fair hearing, nor is it non-adversarial. In fact, it's a mockery.

"Expert witness oversight is patchy at best, and apparently extremely one-sided. We have researched the question and cannot find a single reported instance where a professional society has disciplined an expert testifying on behalf of a defendant. This is wrong and needs to be investigated. Is anyone accountable for policing expert witness testimony?

"Let's also look at confidentiality agreements upon settlement, the so-called 'gag clauses' claimants are so often pressured to sign so we cannot speak openly about the case. These are contrary to the call for transparency in medicine, and have the effect of burying learning that could prevent future injuries. Kernicterus cases were so effectively gagged that its re-emergence in the health system was hidden for at least six years. Gag clauses are nothing short of bribes and intimidation. I ask myself often if Cal would have kernicterus now if some of the cases before his injury had been made public before his birth. We must incentivize transparency. Finding a way to declare confidentiality agreements contrary to the public interest is an excellent place to start.

"Third, we must look at the tremendous variation between awards for patients and families with similar needs. I believe this result of the jury system is very troubling. There has been a kernicterus verdict in this country for close to $90 million dollars. We know of another for over $30 million, even though the child lived less than a month after the injury. Cal got a small fraction of that, and I know families who got a fraction of what Cal was awarded. Their children will inevitably become a burden to the Medicaid system, and most, including Cal, already are. Doesn't justice demand equitability? Our case-by-case system does not work that way, and I believe we must commit to creating some other mechanism or guidelines for juries and judges. This fairness gap needs to be addressed.

"As an American citizen, I was taught that our legal system was created for powerful, honorable, reasons. It was designed to be just, and to protect the rights of people who were unfairly harmed. When did it deteriorate into a win-at-all-costs game, where it is permissible for a party to prosecute or defend regardless of the merits of their case? I ask all of you to recognize that we have a common interest in reshaping the tort system.

"To the CEOs, Boards of Trustees members, and other healthcare organization leaders in the audience, I ask you, " Do you know what is happening behind closed doors when there is an event in your hospital that causes harm? Would you instruct your risk manager, your general counsel, or your outside counsel to fight to win every case, regardless of harm? Would you tolerate the use of expert witnesses to mislead the jury? Are you going to insist that patients who have been harmed be silenced by gag clauses? Remember, you are in charge — not your counsel — and you are our trusted leaders. We call to you to lead by example.

"To the leaders of professional societies, I ask you, "Do you really believe that greedy plaintiffs are to blame for the 'malpractice crisis?' In the future can we work together to establish new ways of assuring honest and scientific expert witness testimony?

"To the liability insurers in the audience, I realize that you are a powerful industry. Can we bring the patient perspective and the collective patient wisdom into your world? Can we be your partner? It may be provocative to suggest that we can help you achieve your goals of reduced malpractice payouts, but it is starting to happen already. I know of two medical malpractice companies, Northwest Physicians Mutual Insurance Company and Colorado Physicians Insurance Company, that already have begun implementing new jaundice management protocols to prevent what happened to my son. I hope that your industry will have the courage to use the power you have to invest in prevention.

"To the attorneys in the audience, can we structure a tort system that along with equitable compensation looks at creative resolutions that result in hospital policy changes and new protocols to prevent future harm? In both Cal and Pat's cases, I would not settle without meeting with the CEOs of the hospitals to assure that policy changes had taken place. This was perceived as an unusual request, but it is important to many families who suffer harm. Can we normalize this? Dare we believe that we can work together on this issue and discover common ground that we could nourish and grow together? It is a radical thought, but doable if we so chose.

"For those of you who believe the current tort system works, I ask you to reflect on my comments today. I have seen an underbelly of the tort system close up, and I would not wish that on any one of you. If we are serious about patient safety, we should not tolerate or encourage behaviors that hide lessons learned, convert patients and their providers into enemies, and that reduce trials into jousting matches between exorbitantly paid medical experts. Traditional tort reform, with its reliance on caps on noneconomic damages, remedies none of the concerns I've shared with you today. Caps on damages are not consistent with your compassion for your patients. They are based in fear and they do not drill down to the real problems.

"In closing, I invite you and I challenge you to discard your old beliefs about tort reform and to dismantle the paralyzing gridlock that prevents us all from going forward. I ask you to use your power, courage, and resolve to shape an innovative tort system in partnership with healthcare consumers that marks a return to integrity and honor.

"Remember that people who experience medical errors are not just dollar figures. We are your loved ones. We are you. I appeal to you; please serve the people who are relying on you — daddies like Pat, babies like Cal.

Thank you."

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Susan Sheridan's introduction to safety issues — and her motivation to make a difference — came through grave medical errors, which led to her son's permanent disability from kernicterus in 1995 and her husband's death in 2002 from failure to communicate a diagnosis of cancer. She is co-founder of Parents of Infants and Children with Kernicterus (PICK), a nonprofit devoted to preventing kernicterus and realizing the full potential of people who have it, and co-founder of Consumers Advancing Patient Safety (CAPS), a 501(c)(3) organization dedicated to fostering the role of consumer as proactive partner. She also chairs the Patients for Patient Safety track of the World Alliance for Patient Safety, launched by the World Health Organization (WHO) in 2004. Sheridan is a member of PSQH's Editorial Advisory Board and may be contacted at ssheridan@patientsafety.org.

Martin Hatlie is president of Partnership for Patient Safety (p4ps), a patient-centered initiative dedicated to advancing the reliability of healthcare systems worldwide, and co-editor of The Patient Safety Handbook (Jones & Bartlett 2003). Previously, Hatlie was a lobbyist for the American Medical Association (AMA) focusing on tort reform. In 1997, he coordinated the AMA's launch of the National Patient Safety Foundation and served as its founding executive director, and in 2003, Hatlie co-founded CAPS and serves on its board. He also serves on the Sentinel Event Advisory Group of the Joint Commission on Accreditation of Healthcare Organizations, the Steering Group of the Patients for Patient Safety work strand of the WHO World Alliance for Patient Safety, and the Advisory Board of Parents of Infants and Children with Kernicterus. Formerly, he has served on the governing boards of the Anesthesia Patient Safety Foundation and the American Tort Reform Association. Hatlie is a member of the Editorial Advisory Board for PSQH. Hatlie may be contacted at mhatlie@p4ps.org.