We need better regulation of medical mistakes

Strip the College of Physicians of the power to regulate physicians.

By Lawrence Solomon | Published by the National Post, August 25, 2023

According to the National Safety Council of the U.S. Bureau of Labor Statistics, construction is America’s most dangerous industry. It is responsible for a thousand deaths a year. But research from scholars at leading institutions suggests another key sector of the U.S. economy has a rate of accidental death as much as 400 times that: health care.

Before 1991, when the Harvard Medical Practices Study published what became a ground-breaking study identifying “Adverse Events and Negligence in Hospitalized Patients,” the health care industry paid scant attention to the surprisingly high rates of medical error. In the intervening decades, similar findings have been published by the Institute of Medicine, the Inspector General, and Johns Hopkins University School of Medicine in the U.S., and by the Canadian Medical Association Journal in Canada.

The CMAJ study, published almost 20 years ago, estimated that errors led to as many as 23,750 preventable hospital deaths. A National Post exposé last month indicated that “one in 17 hospital patients are harmed by mistakes that sometimes turn deadly.” To those deaths in hospital must be added those who never got that far. According to a recent Second Street study, almost 2,100 patients died last year in Ontario alone while on waiting lists for surgery. Had those patients been properly prioritized for surgery, and had hospital resources been available, many if not most of those patients might be alive today.

Canada’s shortfall in hospital capacity isn’t for lack of spending. As documented by the Fraser Institute, we spend more on health care per capita as a percentage of GDP than any other OECD country that provides universal health care — 25 per cent more than the OECD average — yet we rank near the bottom in terms of physicians, hospital beds and equipment, such as MRI units and CT scanners.

Plentiful funding hasn’t made the heavily bureaucratized, heavily regulated Canadian health care system efficient. What health care needs is less bureaucracy and regulation and more accountability to free up the medical resources needed to save lives.

The analyses of needless deaths in both the U.S. and Canada point to a culture of secrecy. “Currently, deaths caused by errors are unmeasured and discussions about prevention occur in limited and confidential forums, such as a hospital’s internal root cause analysis committee or a department’s morbidity and mortality conference,” researchers at Johns Hopkins state in reference to U.S. hospitals. “These forums review only a fraction of detected adverse events and the lessons learnt are not disseminated beyond the institution or department.”

Canada’s public health-care system, says Dr. Ross Baker, professor emeritus at the University of Toronto’s Dalla Lana School of Public Health, faces an additional hurdle because politicians also shun accountability. “I don’t think politicians want to see this,” he told the National Post, which described “a formidable blanket of secrecy” in which “nothing the nurses or doctors tell (investigators) about what happened that day will ever be made public.”

Alarming as they are, these estimates don’t count the needless deaths in outpatient care at ambulatory surgical centers, in nursing homes, at medical clinics or at home. Neither do they count what are literally untold numbers of cases where preventable medical injuries stopped short of death.

Despite government’s longstanding control over health care, this glaring failure of regulation has largely been ignored. Unlike with automobiles and coal mines — industries widely recognized as risky where regulation has led to impressive progress — “research has suggested that the amount of error in healthcare may not have changed,” reports the academic journal, BMJ Quality and Safety.

To counter the culture of secrecy adopted by the current system of “self-regulation” within Colleges of Physicians and Surgeons, health-care regulation should be geared to exposing poor practices and incompetence. It makes no more sense to have physicians regulate themselves than to have the automobile industry regulated by a committee appointed by Ford and General Motors. The incentives in self-regulation are all wrong: doctors admitting to their or their institution’s failings would affect their reputations and, not incidentally, their medical malpractice insurance premiums.

The measurement of medical deaths — a necessary first step in making the health care system accountable — requires the category of “medical error” to be available when filling out death certificates. Without properly identifying why and where patients died, poor practices by physicians and hospitals cannot be rectified. As a check on any reluctance to admit a medical error leading to death, an “adverse events reporting system” should be established to enable those familiar with the deceased to report possible wrongful deaths.

Today’s often informal system of filling out death certificates should be formalized and placed under the auspices of coroners’ offices, which typically are required to investigate all homicides, suicides and other sudden or unexpected deaths. Coroners now investigate deaths related to medical procedures at their own discretion. But given the scale of medical-error deaths, the default should be that coroners investigate medical errors when a family member requests it, with the onus on the coroner to demonstrate why a potential error shouldn’t be investigated.

By randomly sampling deaths reported to be free of medical errors, coroners could also investigate whether false reporting of deaths occurred and whether fines or criminal prosecution should be pursued. To further establish integrity in reporting the cause of death, family members who order a private autopsy, which typically costs between $2,500 and $5,000, should be reimbursed should the autopsy reveal grounds to suspect a medical error.

If there are as many wrongful deaths as the research suggests, many claims for compensation will follow, along with a revolution in medical procedures. Negligent physicians and hospitals will face high medical malpractice insurance premiums while those who observe high standards will see their fees decline. Most importantly, by getting the incentives right the medical culture will begin to change, from one that looks the other way when someone meets a premature end to one that vigilantly enforces and enhances high standards.

Lawrence Solomon is executive director of Consumer Policy Institute.

See the publisher’s website here for the original version of this article.

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