Technology raises expectations -- and tort risk

A new study says if doctors want to talk about improving the medical liability insurance climate, they can't ignore technology's role.

Technology -- from new medical devices to new procedures -- drives health policy, and the health care delivery system and the medical advances allow more lives to be saved, according to the report "Medical Liability and the Culture of Technology."

But that, in turn, creates more opportunities for errors in diagnosis and treatments. And the errors are often more visible and sometimes more severe than they otherwise would have been, the report suggests. That leads to lawsuits.

In addition, improved technology raises patients' treatment outcome expectations. The study, part of The Pew Charitable Trust's ongoing Project on Medical Liability in Pennsylvania, notes that patients may sometimes have unrealistic expectations that medicine can cure their problems without any complications. When things don't turn out perfectly, patients expecting the ideal outcome may be more likely to sue.

"New technology is exciting, and we've come to expect that medical innovation will continue," said Peter D. Jacobson, MPH, the study's author and a professor of health law and policy at the University of Michigan's School of Public Health. "The study is just trying to suggest that there is a cost to it."

No one is saying technology is the driving force behind the medical liability insurance problems physicians now face. But they are saying that technology's role needs to be looked at as people try to find a way to fix what organized medicine refers to as the broken medical liability system.

"Physicians are in the best position to lead this dialogue," Jacobson said.

High visibility increases expectations

Doctors and some health lawyers agree that technology opens up physicians to greater liability and that the culture that has evolved around technology sometimes creates unrealistic expectations on the part of patients.

"I blame the media for not using the word 'medical' without putting the word 'breakthrough' after it," American Medical Association President John C. Nelson, MD, MPH, said. "Not everybody with a heart attack can be saved."

Scott H. Michaud, a Boca Raton, Fla., attorney who tries professional malpractice and other general liability cases, said doctors can help defuse some of the expectations by making sure patients understand technology's limits, including why it may or may not be a good option for a particular patient.

"There's a great expectancy that we will cure the world with technology and it's a little hard for us as the general public to realize that technology has its down side," Michaud said

For example, the number of lawsuits against physicians who perform gastric bypass surgery is on the rise, said Mark A. Hall, professor of law at Wake Forest University and a professor of public health sciences at Wake Forest University Baptist Medical Center in North Carolina.

"It's a risky procedure," he said. "It has complication rates. But patients see Al Roker on TV. So, they may get all the warnings about the surgery, but they have a visual picture of Al Roker. If something goes wrong, they say, 'that didn't happen to Al Roker.' "

General surgeon Dmitry Oleynikov, MD, co-director of Education and Training at the Minimally Invasive and Computer-assisted Surgery Initiative at the Nebraska Medical Center said new technology gets more press and more scrutiny. Thus, it's more visible than other surgeries and more likely to get press if problems occur.

"It isn't that new technology is inherently unsafe, he said. "It's more that if there is a poor outcome, it's noticed more."

Studies have shown that increased expectations and lawsuits based on new technology have been evolving since advances in treating bone fractures were first discovered in the early 1800s. But Jacobson and other experts say there are things that physicians can do individually and systematically to try to change the climate that has evolved.

In addition to making sure physicians are adequately trained to use the new technology and having patients sign informed consent forms, one recommendation on everyone's list is communication.

"We can heal a bone, but it may not always be the same as it was before the injury," said Robert H. Haralson III, MD, executive director of medical affairs for the American Academy of Orthopaedic Surgeons.

To communicate that to patients, Dr. Haralson said the AAOS has been testing a program that encourages patient-assisted decision-making. Physicians show patients videotapes so they can see what goes into a procedure and better understand the risks.

Physicians also discuss each option with the patient, including the option of doing nothing, and they lay out the consequences of each action.

"You tell the patient 'You have to help me decide what you want,' " Dr. Haralson said.

Jacobson's report lays out other solutions, as well, including a call for:

• Debate between medical leaders and the public to alter expectations about what new treatments and devices can realistically achieve.
• A robust assessment process that helps ensure patient safety by limiting improper use of unproven innovations and allowing more training for doctors and other health care professionals.
• A change in the standard of care to incorporate a cost-benefit analysis. This would allow physicians to weigh available resources when deciding whether to adopt new technologies.
• A no-fault system in cases where the cause of an injury isn't entirely clear. One example would be neurologically impaired infants.
• The creation of independent panels under judicial supervision to review and monitor expert testimony. Also the creation of specialized courts or court-appointed experts.

Dr. Nelson said the report underscores the fact that the medical liability system is broken. Tort reform that includes a $250,000 cap on noneconomic damages is the AMA's No. 1 legislative priority as a means to help fix the system. Dr. Nelson said a cap will go a long way in helping the liability system, but other reforms are also needed.

"We need to differentiate between bad outcomes and when there is negligence where a physician should be held liable," he said. "The system is broken and needs to be replaced by one that is fair to patients, doctors and attorneys."