Lawsuits are NOT the Answer!! Or are they??

As I read a post on one of the few autism blogs I follow, I found myself angry.  An upset mother had posted asking for advice.  Her wheelchair bound child had been left sitting unattended on the curb as the bus unloaded for the morning, with the brakes unlocked.  The chair, and the poor child, rolled off the curb and the child ended up with a busted lip and lacerations requiring sutures.  The terms, "cause and effect" come to mind.   The cause of this awful outcome was human error.  The child had been unloaded from the bus, and as the teacher went to unload other children, she handed the child off to an aide.  Both failed to lock the brakes.  A car pulled up in the line, and the aide left the child and wheelchair to go assist that child from the car.

  My anger stems from two sources:  I am angry for the mother and child; what an awful thing to have to endure!  However, my greatest anger comes from the recommendations of those commenting on her post; an overwhelming number of those comments encouraging suing the school.  Perhaps what I consider to be the most ignorant of those comments were the ones that stated, "The only way to prevent this from happening again is to sue them!"  I ponder that thought process and wonder, does litigation truly prevent the occurrence of human error?  I researched this, the results of my findings are in the next paragraph. Many commenters claimed the accident was the result of neglect, and of an uncaring attitude.  I tell you what is my definition of neglect.  Neglect comes in many forms, and probably the most neglected in this case, are those caring for this precious child.  Most people working with our kids receive very little monetary incentive for their very hard work; the paraprofessionals (aids) could make more working at WalMart.  On a daily basis, these people, who have dedicated their lives to caring for and educating our children, are subjected to biting, clawing, punching, kicking, changing soiled diapers, and parents who expect them to perform miracles that we, and modern medicine, have failed to perform.  There is one reason, and only one reason, that these Gift's from God dedicate their lives to our children; because they LOVE them.  How dare someone suggest otherwise!!!

In 2013, medical malpractice payouts from lawsuits totaled $3,733,678,100 (Gower, 2014, Image Number 1).  Just an interesting point I noticed on that same site, Alabama ranked the lowest of all states per capita in payouts.  Medical malpractice is big business, and in the medical community, it is always in the back of our minds.  But, does it prevent us from making errors?  Prior to researching, I would have shouted a resounding, "No!" but my logic was skewed.  I was thinking in terms of human error, and how human error is not intentional, therefore I can not be changed.  However, after researching, I found a different perspective.  Because of litigation, or fear of litigation, we have placed great emphasis on changing workflow so that it prevents human error.  A 1999 report by the Institute of Medicine (IOM), "To Err is Human" changed the thought process from errors being individual human factors, to recognizing that they are the result of organizational and systematic weaknesses.  The IOM  recognized that fixing those flaws would result in a decrease in errors, and while the changes and efforts would be costly, the financial benefit would outweigh the cost of implementation.  Hospitals began hiring risk management, and safety personnel to collect data, analyze trends, and formulate solutions to systemic flaws.  Since that time, the increased safety of healthcare is inarguable, however, the payout for medical malpractice suits has continued to increase.  Studies have indicated that lack of transparency, and fear of litigation/retaliation continue to prevent reporting of medical errors (Schwartz, 2013).  So, while we have become safer healthcare providers in the past decade, we still have much room for improvement.  We must encourage and accept a culture of openness and honesty, and continue to push for non-punitive reporting with hopes that as providers, we can protect ourselves and our patients simultaneously.

In the case I discussed above where the child was injured when an aide forgot to lock his wheelchair, one of the mother's complaints was that it took her over a day to gather information about what actually happened to her child.  I think this type response by the school system is exactly what the study I cited above found; that fear of litigation prevents a culture of openness.  While I definitely agree that litigation has helped alleviate patient safety errors, I still feel that the sue-happy attitude of society is very misdirected.  I guess, as with most things, I am straddling the fence.

References

Gower, J. (2014). 2014 medical malpractice payout analysis. Retrieved from http://www.diederichhealthcare.com/the-standard/2014-medical-malpractice-payout-analysis/

Schwartz, J. (2013). A dose of reality for medical malpractice reform. Retrieved from http://www.nyulawreview.org/sites/default/files/pdf/NYULawReview-88-4-Schwartz.pdf