Medical Malpractice, Errors in Judgment, and The Beginner’s Mind

Last month the American Journal of Medicine published a new study (“Longer Lengths of Stay and Higher Risk of Mortality among Inpatients of Physicians with More Years in Practice”) with the unexpected conclusion that hospitalized patients were more likely to die or stay long in the care of an experienced physician than in the care of a recent graduate from residency:

According to findings in the American Journal of Medicine, patients whose doctors had practiced for at least 20 years stayed longer in the hospital and were more likely to die compared to those whose doctors got their medical license in the past five years. …

Over the course of the study, there were 59 different attending physicians. The researchers divided them up based on how long they were practicing: five years or less, six to 10 years, 11 to 20 years, or more than 20 years. …

At first glance, compared to patients with the newest doctors, those with the most experienced physicians had more than a 70 percent increase in their odds of dying in the hospital and a 50 percent increase in their odds of dying within 30 days.

However, when the researchers took into account how sick the patients were, they found that only the sicker patients — those with complicated medical problems — were at higher risk in the hands of the more experienced doctors.

Southern’s group also found that while the doctor’s experience played a role in how long patients stayed in the hospital, it also mattered how many hospitalized patients he or she was taking care of.

When doctors weren’t very busy, they kept patients in the hospital for roughly the same average time no matter how many years of experience they had. But when they did have a lot of patients to see in the hospital, those with more than 20 years of experience kept patients there about half a day longer than their peers who’d been practicing for less than five years.

Description from Reuters. The authors suggested that the younger doctor’s “familiarity with more current guidelines and practices” explained the difference, and suggested requiring periodic re-certifications. Scepticemia notes some possible confounding variables and sample size issues, but on the whole the study’s conclusions look robust.

We have a fair amount of experience investigating medical mistakes around here, including malpractice by hospital residents, so let me offer another possibility.

There is a misunderstanding about medical malpractice law which goes like this: if a doctor is faced with multiple potential diagnoses and treatments and the doctor chooses the wrong one, the doctor will be liable for medical malpractice.

Such myth is not and has never been the law.

Courts in Pennsylvania used to bend over backwards to make that clear to juries, and used to give them an “error of judgment” instruction like this:

[I]f a physician has used his best judgment and he has exercised reasonable care and he has the requisite knowledge or ability, even though complications resulted, then the physician is not responsible, or not negligent. The rule requiring a physician to use his best judgment does not make a physician liable for a mere error in judgment provided he does what he thinks best after careful examination.

The rule of reasonable care does not require the exercise of the highest possible degree of care, but requires only that the doctor exercise that degree of care that a reasonably prudent physician would have exercised under the same circumstances as presented here.

Physicians who exercise the skill, knowledge and care customarily exercised in their profession are not liable for a mere mistake of judgment. Under the law, physicians are permitted a broad range of judgment in their professional duties, and they are not liable for errors of judgments unless it is proven that an error of judgment was the result of negligence. And folks, as a general proposition that applies in any case, doctors or physicians do not guarantee a cure to their patients, and negligence should not be presumed from the occurrence of an unfortunate result.

Pringle v. Rapaport, 980 A.2d 159 (Pa. Super. Ct. 2009)(rejecting error of judgment instruction as likely to confuse juries because it “wrongly suggests to the jury that a physician is not culpable for one type of negligence, namely the negligent exercise of his or her judgment” and remanding shoulder dystocia case for a new trial). The law still holds that a doctor isn’t responsible for every adverse event, and that, at core, the issue is whether the doctor followed the applicable standard of care, nothing more and nothing less.

Truth is, only a small number of medical malpractice lawsuits involve allegations that a doctor was presented with multiple legitimate options and chose the wrong one. (Those few cases usually involve allegations that, in fact, there was only one legitimate option.) Instead, the majority of medical malpractice lawsuits arise from an allegation that the doctor completely missed something or did something in an indisputably negligent manner. “Failure to diagnose,” as it were, like the obstetrician who failed to recognize hypoxia and fetal distress or the radiologist who didn’t see a lump on an x-ray that was lung cancer. Other times, the defendant did something just plain wrong, like the hospital that reported mistaken biopsy results back to the treating physician or the surgeon who didn’t check if they perforated the patient’s bowel during an operation.

Don’t take my word for it, peruse the case studies at the Risk Management Foundation. These aren’t “errors in judgment.” The doctor didn’t carefully evaluate several possibilities and pick what we know in hindsight to be the wrong one; the doctor missed the correct “possibility” entirely. They’re not about errors in judgment but about a lack of diligence.

There’s a Zen proverb which counsels the experienced to retain “a beginner’s mind.” Keith Lee named his site after it, so I’ll just quote him:

Shoshin (初心) is a concept in Zen Buddhism meaning Beginner’s Mind. It refers to having an attitude of openness, eagerness, and lack of preconceptions when studying a subject, even when studying at an advanced level, just as a beginner in that subject would. The term is especially used in the study of Zen Buddhism and Japanese martial arts.

The same applies to physicians. A new resident doctor who is literally inexperienced — particularly a sleep-deprived one, but that’s a problem for attending physicians, too — is more likely to make a mistake, and so you should avoid going to a teaching hospital in July. Recent residency graduates, though, are anything but inexperienced. By the point a doctor graduates residency and becomes an attending, they have a minimum of 10,000 hours actually practicing medicine through their medical school clinical years and residency, the magic number for expertise.

But even better, a recent residency graduate on their first attending assignment has something better: motivation. They’re anxious about making mistakes, failing, or making a bad impression, and they’re eager to prove themselves as worth, excellent doctors who can handle responsibility.

So they go the extra mile, putting extraordinary effort into their cases. The most detailed and useful notes we see in medical records invariably come from new attending physicians who, new to attending status, now have responsibility for transferring care, too, and take it seriously. The new attending physicians are, in my humble opinion, less likely to make the sort of negligent mistakes that constitute malpractice.

Tweet Like Email LinkedIn