May, 2017
I was honored to be invited by the American Association of Legal Nurse Consultants to speak to over 200 of the brightest minds in legal nursing at their national educational conference in Portland on Saturday April 8. The morning session covered the standard of care for back pain patients at risk for spinal epidural abscess (SEA). In the afternoon I moderated a panel discussion entitled “Non-disclosure clauses in pre-trial settlements: Are they a barrier to improving patient safety?” The panel included a plaintiff attorney, a defense attorney, a malpractice insurance company executive and an AALNC board member.
Spinal Epidural Abscess:
Readers of this Bulletin know how appalled I am that we physicians continue to miss the diagnosis of SEA. The diagnosis is easy to make if we do one thing: think about it. Even UpToDate Online says “Thinking of SEA is the key to diagnosis.” I myself have been involved in about a dozen cases in the past 6 years, most of them just here in Washington State. Another 50 cases or more were represented by the 25% of the audience who reported having been involved in such a case. That’s an embarrassing number of patients who are now living the life of a paraplegic or worse because of a preventable medical error. A few of the cases I have reviewed have been defensible, but the majority have cost insurers over $5o million in claim settlements. That’s a ridiculous and unnecessary expense to say nothing of the tragedy for the injured patients.
Unfortunate as these cases are, they are gold mines for plaintiff attorneys. The fact that none of the cases with which I am familiar has gone to trial illustrates how egregious they are. Yet the diagnosis continues to be missed. No one besides the defendants and the involved experts are learning anything from these cases. The healthcare profession as a whole is learning nothing, because every one of the pre-trial settlements of these cases includes a non-disclosure clause which covers up the results and eliminates any opportunity for other healthcare professionals to learn from the errors made.
And this leads to the subject of the afternoon panel discussion:
Do non-disclosure clauses hamper improvements in patient safety?
What can we as a healthcare industry do to better learn from our mistakes? And what role do non-disclosure clauses play in keeping us from improving patient safety? Product liability law doesn’t work like this. Manufacturing mistakes that harm people must be disclosed. Automobiles are recalled. But in healthcare, we allow our mistakes to be buried. If the aviation industry did as little for passenger safety as we in the healthcare industry do for patient safety, none of us would dare board an airplane. Consider this: Were it not for the NTSB, plane crashes would be an everyday headline, and “100,000 lives” would refer to the annual number of passenger deaths. Aviation’s passengers are healthcare’s patients. And because medical mistakes rarely see the light of day, “100,000 lives” is the number of our patients killed every year by medical error.
We can do better.
Among other issues, the panel attempted to address the following:
- what is a non-disclosure clause?
- what is the rationale behind such confidentiality?
- to whom are attorneys and insurers responsible?
- why would patients, who sue to keep this from happening to someone else, agree to such restrictions?
- why are insurers not doing more to educate healthcare providers and limit their claims exposure?
- who benefits?
- who loses?
- how such confidentiality is managed in product liability cases and aviation?
- what does the law say about non-disclosure of potential harms?
- how are other countries approaching transparency to learn from medical mistakes?
Despite being asked to assume that increased transparency did not mean disclosing names or the amounts of pre-trial settlements, the various panelists stated their positions as follows:
- Plaintiff attorney: My responsibility is to my client. I need to do the best I can. If the defense demands confidentiality and is willing to pay my client more for that, taking care of my client comes first.
- Defense attorney: My client’s livelihood is at stake. A single mistake should not cost them their reputation. Sometimes I have to pay more to protect my client
- Insurance company executive: Transparency will lead to more “me too lawsuits.” Plaintiff attorneys will gain insight and ammunition to pursue more cases, causing med mal insurance rates to rise. And we already share information via claim reports and case studies.
- Legal Nurse Consultant: Nurses advocate for the safety of their patients. Greater transparency has the potential to make healthcare safer. It could also educate the public to better advocate for themselves.
Are confidential pre-trial settlements a barrier to improving patient safety? Judge for yourself, but after an hour of discussion and another 30 minutes of audience questions, the elephant in the room remained: “We know the right thing to do, but we have no motivation to do it.
My position is this:
- We must improve patient safety by treating every med mal settlement as a teaching case.
- We need not name names or settlement amounts.
- We must share the learnings from our mistakes.
- Disclosure could be limited to cases over a certain amount, e.g., $1 million.
If nothing else, the panel discussion increased awareness among attendees to use opportunities to educate colleagues by sharing cases of medical error to improve patient safety.