A week ago, the Wall Street Journal published an excellent article, “Clues to Better Health Care From Old Malpractice Lawsuits,” which detailed the way that malpractice insurers and medical safety groups have been pouring through thousands of closed malpractice cases to see ways they can improve health care.


As the Wall Street Journal says:


There are common themes in claims from almost every medical specialty—including failure to properly diagnose a patient or poor technique in a procedure. But data collections from different specialty groups are also helping to identify issues unique to different types of doctors, including primary-care physicians, anesthesiologists, emergency-room doctors and cardiologists.


It should come as no surprise that many of the “issues unique to different types of doctors” are exactly the same types of cases for which medical malpractice lawyers routinely advertise. Consider this list of improvements to Emergency Care:


Of 332 claims studied from 2007 to 2013, 52% of patient injuries were found to be caused by patient assessment issues.

  • The diagnosis was wrong because the doctor failed to consider other diseases and conditions with similar symptoms.
  • The doctor failed to order the right diagnostic tests.
  • The patient was discharged too soon.
  • The physician didn’t deal with abnormal test results or examination findings or use available information in the patient’s medical record.

Solutions: Avoid first-impression or intuition-based diagnosis. Make sure all specialists who evaluate patients have complete data.


Indeed. The very best source for information about how to improve health care comes from, no surprise, the times when it didn’t work right. That is to say: medical malpractice lawsuits.


For too long, the medical community has looked at malpractice lawsuits as some type of totally random event, like a tornado or a hurricane. Far from it: in the vast majority of states, medical malpractice lawsuits cannot even be filed unless a qualified doctor has already reviewed the records and has determined there’s the possibility of malpractice. Then, to win a malpractice lawsuit, the plaintiff has to have a qualified expert testify, under oath, that the defendant doctor actually committed malpractice and actually harmed the patient.


I’m glad to see that, somewhere, medical professionals are finally looking at the wealth of data and analysis that plaintiff’s lawyers and their clients have generated over the past few decades. Here in Pennsylvania, however, things aren’t going as well.


The House of the Pennsylvania General Assembly is currently considering HB 1064, which would give special protections to any “health care provider” involved in “the provision of emergency health care.”


The bill has undergone some revisions, and since it’s still in committee may undergo more, but the end goal is quite simple: to make it exceedingly difficult to bring malpractice claims against emergency departments.


In a normal tort lawsuit — everything from a simple car accident to brain surgery negligence to architectural malpractice — the plaintiff was to prove, “by a preponderance of the evidence,” that the defendant was negligent. HB 1064 creates a special rule for emergency departments in hospitals, so the plaintiff has to prove “by clear and convincing evidence” that “the health care provider was grossly negligent.”


Let’s start with “gross negligence.” If you’re wondering what that means, you’re not alone: not even the Pennsylvania Supreme Court knows what it means. The term “gross negligence” usually shows up in criminal statutes, and even in that context nobody knows what it means:


[A]s a theoretical matter, there may be some gradation of negligence greater than that set forth in Section 302, but less culpable than recklessness, which could be encompassed by the term “gross negligence.” However valid that point may be in theory, this Court’s task is decisional. And, as the Superior Court majority below properly noted, this Court has construed the terms “reckless” and “grossly negligent” as defining the equivalent state of mind for purposes of the involuntary manslaughter provision. See Commonwealth v. Comer, 552 Pa. 527, 716 A.2d 593, 597 (1998) (definition of “recklessly” set forth in Section 302 “encompasses” gross negligence set forth in Section 2504) (citing Commonwealth v. Lobiondo, 501 Pa. 599, 462 A.2d 662 (1983)).


Commonwealth v. Huggins, 836 A.2d 862, 867-868 (Pa. 2003). In other words, at least when it comes to involuntary manslaughter, nobody really knows what “gross negligence” means, so the courts assume it means the same thing as “reckless.” “Reckless,” in turn, means:


A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation.


18 Pa.C.S.A. § 302(b)(3).


So let’s back up: under HB 1064, to prove that a doctor or nurse in an emergency room committed malpractice, the plaintiff would have to prove, “by clear and convincing evidence,” that the doctor or nurse “consciously disregard[ed] a substantial and unjustifiable risk” in such a way that it was “a gross deviation from the standard of conduct.”


In other words, the patient would have to prove the doctor knew they were going to hurt the patient but didn’t bother doing the right thing. If only we all had a powerful lobby like the hospital association to promote bills in the legislature, then we would never have to worry about being sued when we speed through a red light and cause an accident — after all, we didn’t “consciously disregard” the risk of an accident, we just didn’t think about it, so we shouldn’t be responsible, right?


While all the rest of the country is learning how to improve health care safety from malpractice lawsuits, the Pennsylvania legislature is wondering if hospitals should be held to the same standard used for criminal defendants facing involuntary manslaughter charges. It’s embarrassing.