Medical Malpractice – A Bogie?

Doctors knowingly fail to cooperate to make medicine safe because they would then be required to practice safe medicine, and be held accountable if they fail.

In the recent issue of Obstetrics and Gynecology,[1] Drs. Strunk and Queenan in their advocacy for an administrative compensation plan to replace the tort system in providing compensation for adverse medical outcomes, liken the performance of a physician to that of a professional golfer or bowler.  Since a professional golfer does not always shoot par, and a professional bowler will not always have a perfect score, the authors  reason similarly doctors should not be expected to have perfect results.

“To Err is Human”.  But the fact that all humans are in some circumstance or at some points subject to err, does not mean that they should not be held liable for negligence.  The authors claim without any offer of proof that the most important reason for adopting an administrative compensation model for adverse medical outcomes is that somehow such a system would improve patient safety and the quality of care.  They also claim that there is such fear of litigation that it somehow impedes the investigation and analysis of adverse medical outcomes.  A remarkable claim suggesting doctors are so self-absorbed they knowingly fail to cooperate in efforts to make the health system better because they assume cooperation will reveal that they agree something is unsafe and such agreement might have personal consequences.  Certainly, if doctors were so affected by their egos, making them unaccountable for error would not convert them to patient centered saints.

There is and can be no evidence that litigation interferes with root cause analysis.  What most interferes with analyzing how needless harms have occurred is the unwillingness of doctors or other healthcare providers to admit they have done something wrong.  If a person has been careless and has hurt another that is wrong.

There was a time in this country when there was little litigation and there certainly were no malpractice suits available when there were doctors who continued to treat people with leaches long after their better informed brethren recognized the absurdity of such a practice.

The tort system particularly in Pennsylvania provides effective investigative tools, which in the hands of competent lawyers enable injured patients to determine with a reasonable degree of confidence whether an injury was avoidable or not.

Physicians object to the litigation system as they object to any system in which their conduct can be criticized.  One need only examine the existing peer review mechanism and how they operate within hospital systems when no litigation has been threatened.

A Bogie occurs because a person trying as hard as they can is unable to complete a hole in the prescribed number of strokes.  It does not occur because of negligence.  It occurs because of a lack of required skill.  If a golfer were to choose a putter to drive from the tee on a five par course, that would be negligence but only the golfer’s reputation would be at stake, not the life and welfare of a newborn.  A bogie is not a matter of life or death.


[1] “Beyond Negligence,” Obstetrics and Gynecology, Volume 115, No.5, May 2010, page 896

All articles in this blog are the collaborative effort of attorneys Jerry Meyers, Brendan Lupetin, and Gregory Unatin.

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