Article on Medical Error

The good Professor has a link up to a new article on SSRN authored by Marlynn Wei.  Here is the abstract:

This article analyzes and critiques apology laws, their potential use, and effectiveness, both legally and ethically, in light of the strong professional norms that shape physicians' reaction to medical errors. Physicians are largely reluctant to disclose medical errors to patients, patients' families, and even other physicians. Some states have passed so-called apology laws in order to encourage physicians to disclose medical errors to patients. Apology laws allow defendants to exclude statements of sympathy made after accidents from evidence in a liability lawsuit. This piece examines potential barriers to physicians' disclosure of medical mistakes and demonstrates how the underlying problem may actually be rooted in professional norms - norms that will remain outside the scope of law's influence. The article also considers other legal and policy changes that could help to encourage disclosure.

Apology laws are picking up steam, especially as medical malpractice insurers have really jumped on board (this after the production of solid evidence demonstrating that apologies reduce the number of lawsuits, reduce the damages awarded by juries, and reduce the amounts agreed to in settlements).

UPDATE, 1/13: After reading and digesting Ms. Wei's article, I want to note that she challenges some of the above contentions.  One of her theses is that the risk of legal liability alone does not explain why physicians refrain from disclosing medical error.  Accordingly, while it may be true that some insurers have encouraged the enactment of apology laws, even if those laws ameliorate the risk of legal liablity (a propositon Wei challenges), there exist a host of social and normative reasons that may still militate against greater physician disclosure of error.   

The concept of medical error is incredibly fascinating, and is a hugely important topic both in bioethics and the medical humanities, and in health policy in general, especially after the IOM reports detailing the prevalence of such error.  There are a host of resources on the subject, but I have never been more moved than via my first encounter with the subject, Marianne Paget's remarkable work (completed a decade before the first IOM report on the subject in 1999), A Complex Sorrow: Reflections on Cancer and an Abbreviated Life.  Paget was doing postdoctoral work as a sociologist on medical error when a series of medical errors resulted in repeated misdiagnoses of the cancer that would take her life.  The book is a collection of her essays, letters, and journal entries written during the last year of her life:

In 1988, Marianne Paget published the Unity of Mistakes: A Phenomenological Interpretation of Medical Work (Temple) in which she argued that error is an intrinsic feature in medicine—an experimental and uncertain activity. Her subsequent research focused on medical negligence and on miscommunication and silence a as cause and product of error in medicine. While pursuing her research on negligence, she found out that she was an example of it. Chronic back pain that had been misdiagnosed as muscle spasms turned out to be a symptom of a rare and fatal cancer that claimed Paget's life in December 1989. This collection of her personal and professional writings on the phenomenon of error in medicine chronicles a young scholar's courageous struggle to make sense of a tragic coincidence.

It's a marvelous work on a topic the importance of which grows daily.

UPDATE: Thanks to Michael Cohen over at the fine CAMLAWBlog for linking to and mentioning this post.   

Comments

[jack hasson, MD]

Our litigious culture erupted in the 1970's. Doctors have been concealing mistakes ever since and learning nothing from them. This is the fundamental problem eroding medical care standards. The solution is to end our litigious culture and restore our profession to its former esteemed status.