Another Doctor Who Believes That Reducing Medical Malpractice Depends On Learning From The Aviation Industry: But What Are The Lessons We Should Be Learning?

100629_BW_James_Philipp_Bagian.jpgIt’s probably this blog’s favorite topic: the way – or at least one important way – of reducing medical malpractice is for doctors to implement the same kind of systems we see in aviation.
Dr. Gawande has written a book on the subject – The Checklist Manifesto: How To Get Things Right. The central thesis of Dr. Gawande’s book is that the way to prevent medical errors is not to create more intense or longer training for doctors – it’s to make sure that protocols get followed by adhering to standardized checklists, the same solution for reducing error that the aviation industry hit upon in the 1930s when their aircraft started becoming more complex. Dr. Gawande’s checklists, which have been deployed in a WHO pilot study, appear to be wonderfully successful.
This blog has suggested that one reason checklists have proven so effective in reducing the incidence of medical malpractice is that they put everyone on a level playing field – nurses and doctors, high rank and low – and allow anyone who catches a mistake being made to speak up about it.
Last week, profiled another doctor – James Bagian, director of the Veteran’s Association National Center for Public Safety – who is urging his colleagues to use the aviation industry’s approach to reducing error. Dr. Bagian, like Dr. Gawande, is a man of many parts: prior to becoming the VA’s chief of patient safety, Bagian was a NASA astronaut, an Air Force-qualified free fall parachutist and a mountain rescue instructor.
Bagian notes that the health care industry devotes a much smaller percentage of its expenditures to reducing human error than so-called “high reliability” industries, such as aviation and the chemical industry, industries that deal with very high-risk enterprises but very seldom have serious incidents.
Bagian believes that the problem with medicine is a “cultural one” and he attributes it to medicine’s being so old – healers go back to Hippocrates – rather than its being a youthful field like aviation or chemical engineering that is more informed by the trial-and-error values of the scientific revolution.
But – and here is where the tort reformers probably start to shriek in horror – maybe serious error is less common in aviation and in the chemical industry than in medicine because the legal system holds those industries to a very exacting liability standards. Airlines and other forms of mass transportation are referred in legal parlance as “common carriers.” Common carriers are notable for one thing in tort law: they owe an extraordinarily high duty of care to their passengers. So, if a plane crashes, the airline is very likely to be found liable, even if the mistake was hard to avoid. Likewise, the chemical manufacturing industry is one that engages in what the law defines as “ultrahazardous activity,” to which a system of “strict” (i.e., non-fault based) liability attaches. Therefore, if the chemical factory causes any harm, its owners will have to pay, regardless of how diligent they were at attempting to prevent the harm.
Medical malpractice law, by way of contrast, generally holds doctors to a less stringent standard of care than that owed by common carriers or participants in ultrahazardous activities. A patient in a medical malpractice case has to prove that her doctor was at fault in committing some sort of error – by falling below the level care generally provided by other (fallible) doctors in the field.
The logic that explains this all seems simple: force people to pay when they cause harm and you reduce the amount of harm caused. But when the legal regime insulates people from the costs of their actions, the amount of that behavior climbs. So when you insulate the airlines from false imprisonment lawsuits for hours spent locked on a plane, you get more passengers sitting on the tarmac.
I’m not proposing strict liability for doctors. But when you ponder why medicine spends so much less on efforts to reduce human error than other fields, the legal regime at work seems part of the explanation.

This blog is maintained by The Law Office of Alan H. Crede, a Boston law firm welcoming medical malpractice cases.