Our most gross mistakes in medicine often become lawsuits. A common denominator for those trials is that they must prevent these situations from affecting another patient. However, the worst of these cases are settled before trial and almost all of these settlements contain a confidentiality or nondisclosure agreement (NDA)also known as a “gag order.” No one can talk about it. No one learns anything. We bury the lessons and bury the next patient.

But we can learn from these events by telling the stories — what happened, why, and what we should learn from them. The stories can be told anonymously and without mentioning settlement amounts. No guilt and shame, just lessons learned.

Stories have been the most memorable source of learning for millennia. They remain “the brain’s preferred device for learning—and the most powerful tool for persuasion.” Without learning from these stories, we will continue to repeat our mistakes. Patient safety will not be improved.

Lawsuits do not improve quality

Ensuring that mistakes are not repeated should be our primary goal. Several studies have shown that lawsuits not improve the quality of care. In fact, I’m not sure that our tort system of lawyers, medical malpractice insurance companies, or those being sued has ever felt that prevention of medical errors should be one of their goals. Why? Because each party has different goals – and it’s not patient safety. The irony for insurers is that their biggest opportunity for cost savings would be to eliminate medical errors in the first place.

At the same time, we know that it is possible to effectively encourage safety – we see other industries doing it much better than healthcare. The poster child for error prevention is the aviation industry. The National Transportation Safety Board (NTSB) and Federal Aviation Administration (FAA) do not hide the results of air accident investigations – they share the lessons learned with every pilot, mechanic and operator of a similar aircraft.

If it weren’t for this transparency, passengers might die at a faster rate than that nearly 100,000 American lives lost annually due to medical errors. If the airline industry handled its plane crashes like we in healthcare handle ours, none of us would dare get on a plane.

Case study: Spinal epidural abscess

Over a 12-month period, four different medical malpractice attorneys in one state asked me to review the medical records of four different patients who were left paralyzed when their spinal epidural abscess (SEA) was missed.

In my experience, an SEA can be ruled out in most cases with a careful patient history, including an assessment of risk factors such as immunocompromise, diabetes, alcohol/substance abuse, recent spinal surgery, hardware, and so on. If an SEA is still possible, a normal sedimentation rate (ESR) or C-reactive protein (CRP) will eliminate even more of these cases. If ESR or CRP is elevated or a strong suspicion remains, an MRI of the entire spine is warranted. I would estimate that about half of these MRIs may be positive. The missing element in each of the four cases was, in my professional opinion, “failure to think about it.”

I was frustrated that there was so little awareness of SEA as a cause of back pain, so when the four cases resolved, I anonymized the stories and shared the lessons learned with my emergency medicine colleagues. This led to a free monthly storytelling project now in its 10th year with over 5,000 readers. The format is simple: facts, plaintiff arguments, defense arguments, findings, takeaways, supporting references. “Takeout” is the key.

What does our industry think?

Five years ago, I hosted a panel discussion on this topic at an American Association of Legal Nurse Consultants conference that was very enlightening regarding the continued use of NDAs in healthcare. The panel included a plaintiff attorney, defense attorney, legal nurse consultant, and an executive from a medical malpractice insurance company. Panelists were told to assume that learning from our mistakes would be completely anonymous, never naming names or disclosing the amount of a settlement.

Despite this directive, the various panelists expressed their positions as follows:

• Plaintiff’s attorney: My responsibility is to my client. I have to do the best I can. If the defense demands confidentiality and is willing to pay my client more for it, it will take care of my client first. (Which just ensures that no one learns and the same mistakes will be repeated.)
• Defense lawyer: My client’s livelihood is at stake. A single mistake should not cost them their reputation. Sometimes I have to pay more to protect my client. (This does not take into account the fact that we do not reveal names.)
• Insurance company manager: Transparency will lead to more copycat lawsuits. Plaintiffs’ attorneys will gain insight and ammunition to pursue more cases, causing medical malpractice insurance rates to rise. And we already share information via damage reports and case studies. (But the vast majority of cases result in pre-trial settlements, which have NDAs, so those lessons are never learned.)
• Legal nurse consultant: Nurses advocate for the safety of their patients. Greater transparency has the potential to make healthcare safer. It could also educate the public to better advocate for themselves. (Yes!)

After an hour of discussion and another 30 minutes of audience questions, the elephant in the room remained: We know what is the right thing to do, but we have no motivation to do it.

A way forward

We can only avoid making mistakes if we know what mistakes are being made. Our goals should include:

• Improve patient safety by treating every medical malpractice settlement as a teaching opportunity.
• Share the lessons learned from our mistakes – anonymously – with the doctors who might repeat the mistake.

An advocacy group working towards such a solution is the recently established one National Patient Safety Boardmodeled after the aviation NTSB, with the goal of creating a data-driven, scalable approach to preventing and reducing patient safety incidents in healthcare settings.

Improving transparency by eliminating NDAs remains the lowest hanging fruit in the entire patient safety movement. Let’s learn from other people’s mistakes, not our own.

Charles Pilcher, MD, is a retired emergency physician and the medical director of the emergency department. He currently serves on the board of directors of EvergreenHealth in Kirkland, Washington, and chairs the board’s quality and safety committee. He has served as a medical-legal consultant in malpractice cases throughout his career and is the editor/publisher of a free monthly newsletter, “Medical Malpractice Insights — Learning from Lawsuits.” Opinions expressed are the author’s alone.