JCAHO calls for reform of liability system

JCAHO has issued a call to reform the nation’s medical liability system, urging the current proposal for caps on noneconomic damages be expanded to pursue intermediate and long-term system changes which its experts say "truly facilitate improvements in patient safety."

JCAHO says that 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 Com-mission’s newest public policy white paper, "Health Care at the Crossroads: Strategies for Improving the Medical Liability System and Preventing Patient Injury." The 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 should assure appropriate compensation for all injured patients, says JCAHO president Dennis S. O’Leary, MD. The plan also should encourage 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, he says. "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," O’Leary says. "The medical liability system in place today simply falls short of this goal."

Expert Roundtable offers advice

The 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, JCAHO 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 JCAHO 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 also is accurate to say that too little progress has been made in improving patient safety since the release of the Institute of Medicine’s ground breaking report on medical error five years ago, O’Leary says. Finally, he notes that a very small proportion — 2% to 3% — of injured patients receive compensation through the medical liability system; those who do receive highly variable recompense for similar injuries.

Improve patient safety, communication

The expert roundtable assembled by JCAHO identified these 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 also must 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. Other recommendations encourage the nonpunitive reporting of errors to third parties to support the development of patient safety solutions, and enactment of pending federal patient safety legislation that would provide legal protection for medical errors and adverse events reported to designated patient safety organizations, such as JCAHO.

• 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 under way, 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 the experts contend has never fulfilled its promise to be the premier resource for meaningful, valid, and reliable information about physician performance.