More Hippocrates, Less Hypocrisy: "Early Offers" as a Means of Implementing the Institute of Medicine's Recommendations on Malpractice Law

By O'Connell, Jeffrey; Bryan, Patrick B. | Journal of Law and Health, Spring 2000 | Go to article overview

More Hippocrates, Less Hypocrisy: "Early Offers" as a Means of Implementing the Institute of Medicine's Recommendations on Malpractice Law


O'Connell, Jeffrey, Bryan, Patrick B., Journal of Law and Health


I. INTRODUCTION

According to disturbing, if admittedly controversial, estimates found in To Err is Human: Building a Safer Health System, a 1999 report published by the Institute of Medicine [hereinafter "IOM"], between 44,000 and 98,000 Americans die each year due to preventable medical errors. (3) Under these figures, more Americans die in a given year as a result of medical errors than from motor vehicle accidents (43,458), breast cancer (42,297) or AIDS (16,516). (4) Total national costs (lost income, lost household production, disability and health care costs) of medical errors that result in injury are estimated to be between $17 billion and $29 billion, of which health care costs represent over one-half. (5) The increased hospital costs of preventable medication-related errors to patients alone are estimated to be about $2 billion for the nation as a whole. (6)

As William C. Richardson, chairman of the panel that conducted the IOM study, aptly comments in citing the Hippocratic Oath, "These stunningly high rates of medical errors--resulting in deaths, permanent disability and unnecessary suffering--are simply unacceptable in a medical system that promises first to `do no harm.'" (7) Significantly, the IOM contends that most medical errors are not caused by the carelessness of individual physicians, nurses, or other hospital personnel; rather, they are the result of the cumulative opportunities for human error that inevitably arise in today's complex medical system. (8) One area that clearly shows the systemic root of medical error involves medication errors. For example, pharmacists often have difficulty deciphering the illegible handwriting of doctors who prescribe drugs. (9) Also, many new drugs have similar names, causing much confusion for doctors, nurses, and patients. (10) Indeed, some 7,000 hospital patients died in 1993 due to medication-related errors alone, more than the number of Americans who die from workplace injuries in an average year. (11)

The IOM report condemns current systems of dealing with medical mistakes, which include a combination of peer reviews, various state and federal regulations and sanctions, evaluations by private accrediting bodies, and, lastly, malpractice lawsuits. (12) The report goes on to make several recommendations in an effort to lessen these forbiddingly high rates of medical error. (13) Most salient from a tort law perspective, the IOM calls for the creation of two distinct reporting systems. (14) First, the IOM recommends the establishment of a federal mandatory reporting system for cases where medical error has led to serious injury or death. (15) Medical errors identified through this mandatory reporting system would be open to the public and unprotected by confidentiality rules. (16) Information from this database would thus be open to discovery in a lawsuit. The IOM concedes that liability in tort "serves a legitimate role in holding people responsible for their actions." (17)

The report also suggests that minor medical errors that have not resulted in serious injury or death be collected in a confidential database that would be unavailable to the public. (18) By reducing health care providers' risk of medical malpractice lawsuits through the confidentiality of this reporting system, the IOM hopes to encourage doctors, nurses, and hospital administrators to be more open about minor medical mistakes that have not led to serious adverse events, thereby giving the medical community greater opportunities to learn from their mistakes and prevent future harm to patients. (19)

To remove the fear of personal liability from individual health care workers and eliminate the incentive to hide errors rather than report them, the IOM acknowledges that tort reform of some sort is also needed. (20) Since the IOM calls for shifting attention away from the faults of individual care providers to the defects of the system itself, the current tort system's "blame culture" is itself blamed by the IOM for providing an impediment to improving the safety of patients by deterring physicians from reporting their own errors in the first place. …

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