Chapter 2: Doctors and the Doctor Identity
E. DOCTORS AS THE LEGALLY RESPONSIBLE ACTOR – THE MIXED “SYSTEM” MESSAGE
Despite the significant focus on the “system” as the cause of preventable patient harm in the last 15 years, when a patient is harmed in healthcare and legal action is taken by the patient, the doctor is generally sued personally rather than as part of the responsible “system”. For example, he or she is usually personally named in the litigation and his or her personal medical indemnity is invoked (often by the hospital) to provide at least partial recompense to the patient for the harm, depending upon the contractual
arrangements between the doctor and the hospital in which the services were provided. For many doctors, the perception is that the “system” approach is shallow and does not protect a doctor when most needed. This can lead to doctors distancing themselves from “the system” and, not unreasonably, they may feel abandoned by it. Under these arrangements, hospitals, governments and other liability funders benefit financially from the doctors’ medical indemnity insurance. There has always been another “system” based alternative called “enterprise liability”, which is a legal arrangement similar to vicarious liability for an employee’s actions, but which focuses on all who participate in “the enterprise”, not just employees53. However, this is not widely used.
While the threat of litigation is much lower than many doctors believe, the risk-averse approach of many health-system risk managers is antithetical to the “no blame” culture
52 There are some exceptions to this – the development of Patient Reported Outcome Measures over
the past 30 years has been one example, but few of these are routinely collected. See Nelson E. Eftimovska E. Lind C. Hager A. Wasson JH. Lindblad S. Patient reported outcome measures in practice. 2015 British Medical Journal, 10 February, volume 350, article g7818 at
http://dx.doi.org/10.1136/bmj.g7818
53 Review of Professional Indemnity Arrangements for Healthcare Professionals. Compensation
and Professional Indemnity in Healthcare – Final Report. November 1995. Australian Government Publishing Service Canberra (PIR Final Report): “Enterprise liability – a different model” at paragraphs 9.137 -9.141. This model applies a more truly “systems” approach to liability, by a collective acceptance of liability and financial consequences.
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discussed in the system paradigm. It can also be antithetical to the “just culture” paradigm as well. The legal concept of negligence awards damages on the degree of loss suffered rather than the degree of wrongdoing of the defendant. This mismatch between the degree of moral wrong-doing associated with doctor’s action and the damages which may be payable often results in medical outrage or distress, partly because of a lack of understanding of the basis for damages. A damages award for the consequences of a momentary lapse, which fulfils the legal definition of negligence but for which most doctors will feel sympathy, is seen by many doctors as unreasonable punishment, even where they are covered by insurance. While a key reason for the existence of the tort system is the allocation of financial losses associated with an injury, the tort system is founded on a “failure of a duty of care”. Such language generally invokes feelings of both personal and professional shame in a doctor. Where the doctor sees the injury as an “innocent mistake”, they see the damages paid as unjust punishment. The sociologist Charles Bosk describes this phenomenon as the “contested concept” of error in medicine.54
One consequence is that doctors generally feel unsafe and under threat, just in case a patient suffers harm in their care. The whole practice of so-called “defensive medicine” is argued to be a consequence of the need to allay this fear55. In some situations, a
doctor performing the defensive medicine gains a financial advantage from so doing, so not all “defensive medicine” is driven by fear alone. Equally not all fear-driven practice change has been negative. Fear of complaint or litigation has led to improved practices, such as better record-keeping and better explanations of risks to patients, which can lead to better patient care and outcomes56. However, because defensive practices are not focussed on likely benefit to the patient but rather protection of the doctor, it is of concern57. Where a defensive treatment is invasive, it may give rise to additional risks to the patient. At the very least, it adds costs to the healthcare system, through
unnecessary or poorly directed testing.
54 Bosk 2005 – see note 47: accessed 21 August 2013.
55 See eg, Hancock L. Defensive Medicine and Informed Consent. – A Research paper. Prepared
for the Review of Professional Indemnity Arrangements for Healthcare Professional. May 1993 Australian Government Publishing Service, Canberra.
56 Mulcahy L. Disputing doctors – to socio-legal dynamics of complaints about healthcare. 2003
Open University Press, Maidenhead (England): pages 108-109.
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The work for this thesis started with a widely-held assumption that in fact, fear of litigation in a fault-based system resulted in the under-reporting of adverse events, the high incidence of preventable patient harm and the lack of action on prevention. Analysis of the various studies in Chapter 1 show that preventable patient harm and poor reporting of patient harm occur across all jurisdiction, representing many different litigation and compensation cultures. High levels of harm and low levels of reporting appear to be universal problems, regardless of the nature of and basis for compensation for those who suffer preventable harm in healthcare. This has been noted in passing by others, with a range of reasons being postulated for the consistency of these issues across diverse countries58. Some of these relate to the so-called “culture of medicine”. With the formal setting of international standards for medical training59, and the
replication of similar hospital-based intern training processes across the world, a common professional culture transcends national boundaries. Other discussion has focussed on doctor self-perception and group identification between doctors. The common education and training processes of doctors and the self-beliefs created in this formative environment have shaped a recognisable self-identity for those who go
through this professionalisation process, referred to in this thesis as the Doctor Identity.
F. People as complex systems
The earlier part of this chapter described some of the complex roles of doctors within the broader healthcare system, that may give rise to preventable patient harm. The health system is complex, and the development of durable and consistently effective ways of addressing patient safety has proved to be a “wicked problem60”, not readily
58 See eg, Robbennolt JK. Apologies and Medical Error. 2008 Clinical Orthopaedics and Related
Research, 30 October, volume 467, pages 376-382.
59 The World Federation for Medical Education, which was established in 1972 under the auspices
of the World Health Organisation, set about establishing agreed international standards on medical education in 1997. For further information go to: http://wfme.org/standards, viewed 18 January 2016. Prior to this international effort, there were national variations, but in countries which have an English or European medical history, the common heritages within the profession across nations created a similar “culture”.
60 The theory of “wicked problems” was first expounded by Horst Rittel and Melvin Webber in
1969 and published in 1973. Rittel HWJ. Webber MM. Dilemmas in a general theory of planning. 1973 Policy Sciences, volume 4, pages 155-169. A more recent exposition by Jon Kolko describes a wicked problem as “a social or cultural problem that is difficult or impossible to solve for as many as four reasons: incomplete or contradictory knowledge, the number of people and opinions involved, the large economic burden, and the interconnected nature of these problems with other problems”. Kolko J. Wicked Problems: Problems worth saving – A Handbook and A Call to Action, 2012 Austin Center for Design, Austin (Texas): page 10.
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solved despite it being widely acknowledged in public discourse. The external complexity is compounded with the internal complexity of all human beings and their emotional and psychological responses, shaped at the biological level.
When the high risk of preventable patient harm came to significant public attention in the decade between 1995-2005, the knowledge base to address “systems failures” in organisations had achieved some maturity in an academic sense, following the ground- breaking work of Rassmussen61 in the 1980s and Reason in the 1980s-90s.62 These authors identified the types of human behaviours and situations likely to result in error and harm. Their contribution helped popularise the understanding of the complex web of causation which could set up a situation where harm was an "embedded pathogen” waiting to express itself in any complex system. In turn, this moved the medical discourse about “adverse events” and “medical error” away from a more simplistic, individualistic tort law based approach, which was designed to find someone to blame who could pay damages.
It is argued in this thesis that a system perspective was a necessary, but not sufficient. step towards safe and effective patient safety-centred healthcare. There was another body of knowledge which was emerging about human performance vulnerability, based in human biology. Neuroscience and the biological bases of psychology, human
emotions and “reason” has, over the last decade, moved into centre stage, to explain why human beings sometimes act or fail to act, when there is a known problem to be addressed. This thesis argues that a broad understanding of these developments is core to progress in relation to patient safety, and to assist doctors to have greater well-being. It is not just the complexity of external systems that are relevant to understanding human error and preventable patient harm. The complexity of the internal systems in each and every doctor, and their collective professional identity, has created
corresponding internal system strengths and vulnerabilities.
61 Rasmussen J. Human errors – a taxonomy for describing malfunction in industrial installations.
1982 Journal of Occupational Accidents, volume 4, pages 311-333; Rasmussen J. Skills, rules and knowledge; signals, signs and symbols and other distinctions in human performance models. 1983 IEEE Transactions on systems, man and cybernetics, volume SMC-a3(3), May/June, pages 257-266.
62 Reason J. Human Error. 1990 Cambridge University Press, Cambridge. Reason J. Managing
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