Joint Commission Issues Call To Action For Medical Liability Reform

OAKBROOK TERRACE, Ill. – The Joint Commission on Accreditation of Healthcare Organizations recently issued a call to action to reform the nation’s medical liability system, urging that the current proposal for caps on non-economic damages be expanded to pursue intermediate and long-term system changes which truly facilitate improvements in patient safety. By its basic design, the current medical liability system chills the identification and reporting of adverse events in health care and thus, undermines opportunities for learning that could provide the basis for significant safety improvements.

The call to action is set forth in the Joint Commission’s newest public policy white paper, Health Care at the Crossroads: Strategies for Improving the Medical Liability System and Preventing Patient Injury. The Joint Commission’s report urges intensified attention to patient safety and medical injury prevention by health care providers and practitioners, emphasizes the critical importance of open communication between patients and practitioners, and urges the creation of an injury compensation system that is patient-centered and serves the common good.

Any redesign of the medical liability system, the report suggests, should assure appropriate compensation for all injured patients, while also encouraging health care providers and practitioners to surface errors, learn from mistakes in the design and performance of care processes, and take action to ensure that adverse events do not recur.

“The ultimate goal is to make health care as safe as it can be, while also assuring appropriate redress for patients when this is warranted,” says Dennis S. O’Leary, M.D., president, Joint Commission. “The medical liability system in place today simply falls short of this goal.”

The Joint Commission’s white paper was developed in collaboration with an expert roundtable whose 29 members represent a wide diversity of interests relevant to medical liability. The report contains 19 specific recommendations and identifies accountabilities for each of those. As with its other public policy initiatives, the Joint Commission intends to work in collaboration with other parties at interest to see that each of those recommendations is eventually met.

The current medical liability system, the Joint Commission suggests, fails patients because it does not effectively deter negligence, truly offer corrective justice, or provide fair compensation to those who have been injured through the care process. It is also accurate to say that too little progress has been made in improving patient safety since the release of the Institute of Medicine’s groundbreaking report on medical error five years ago. Finally, it is a simple fact that a very small proportion – 2{06cf2b9696b159f874511d23dbc893eb1ac83014175ed30550cfff22781411e5} to 3{06cf2b9696b159f874511d23dbc893eb1ac83014175ed30550cfff22781411e5} – of injured patients receive compensation through the medical liability system, and those who do, receive highly variable recompense for similar injuries.

“Failures in health care can have a devastating impact, and finding justice through the current legal system is almost impossible,” says Sue Sheridan, a patient safety advocate who eventually found it necessary to sue over medical failures that led first to brain damage to her newborn son and later to the death of her husband. “Litigation was a ‘win at all costs’ blame game that we found dishonorable. Even after prevailing in court, we had no confidence that the health care system was safer because we sued.” Sheridan is also co-founder of Consumers Advancing Patient Safety (CAPS).

“This crisis is preventing physicians from providing optimal and efficient care,” says Alan C. Woodward, M.D., president of the Mass. Medical Society. “Medical liability reform is necessary to restore sanity to a system that right now severely inhibits physicians’ efforts to learn from mistakes and make health care safer for everyone. The health care and legal systems and patients must come together to put these proposals into action.”

The Expert Roundtable identified the following three strategies for achieving its overall goal:

• Actively pursue patient-safety initiatives that prevent medical injury. Specific recommendations address the need to encourage the creation of cultures of safety in health care organizations; to strengthen oversight and accountability mechanisms for ensuring the competency of doctors and nurses; and to provide health care researchers access to open liability claims to permit timely identification of problematic trends in care. “Pay-for-performance” programs that provide incentives for improving patient safety and health care quality must also be part of the solution.

• Promote open communication between patients and practitioners. Emphasize that patients must become members of the health care team. Ineffective communication and lack of disclosure are the most prominent complaints of patients, and their families, who are victims of medical error or negligence. As one of its recommendations, the report urges pursuit of legislation that would protect disclosure of mistakes and the associated apologies from being used against practitioners in litigation.

• Create a patient-centered injury compensation system. Specific recommendations emphasize the need to conduct demonstration projects of alternatives to the current medical liability system that promote patient safety and provide swift compensation to injured patients. While these efforts are underway, the report also advocates for prohibition of confidential settlements known as “gag clauses” that prevent learning from events that lead to litigation; use of court-appointed, independent expert witnesses; and the redesign or replacement of the National Practitioner Data Bank which has never fulfilled its promise to be the premier resource for meaningful, valid and reliable information about physician performance.

A complete copy of the Joint Commission white paper is available at www.jcaho.org. This report is part of a continuing series of white papers on key public policy issues that impact patient safety and health care quality.