Promoting Patient Safety Through Reducing Medical Error: A Paradigm of Cooperation between Patient, Physician, and Attorney

Abstract

Patient safety has recently become a predominant health law and policy issue. It has been recognized that the vast majority of patient injury occurs due to medical error, and that systems analysis and lessons from other highly complex systems may be useful to reduce error and improve safety. Current medical efforts, however, focus upon individualistic "shame and blame" methods; such punitive approaches are antithetical to well-recognized systems that effectively reduce injury. Further, more modern methods arising from medicine such as risk management appear empirically ineffective. In addition, traditional legal efforts such as the tort system have also not withstood empirical assessment in promoting patient safety. But the law also precludes established systems approaches based on open reporting taken from other industries such as aviation. The common law of tort and contract, statutory law, the law of evidence, state peer review law, and the limits of attorney-client privilege all provide negative incentives to report errors, continuously analyze errors using interdisciplinary teams, and implement and monitor systems solutions in response. A broader infrastructure that incorporates systems analysis, removes legal impediments, and provides opportunities for every member of the health care enterprise to participate in error reduction is necessary to address this critical policy issue.

JEL Classification: K12, K13, K19, K32, K4, K41