Life-Saving Medical Technology Also a Culprit in Physicians’ Liability

In the debate over the crisis in the medical malpractice system, exorbitant jury awards and insurance industry pricing tactics are often singled out as guilty parties. But at least one report points out the central role medical technology plays in the legal precedents on medical negligence.

The report, Medical Liability and the Culture of Technology, by Peter D. Jacobson, says that the history of medical malpractice liability closely parallels the development of medical technology, and that any attempt at reforming the system must take into account how technology influences malpractice liability – and vice versa.

“In a sense, technology is both a savior and a culprit,” Jacobson said. “Savior in extending length and improving quality of life; culprit in causing rapid increases in health care expenditures and, for physicians, considerably more exposure to liability.”

The report, one in a series produced by the Project on Medical Liability in Pennsylvania, funded by The Pew Charitable Trusts, explores the relationship between technology and medical liability, based on several assumptions. One assumption is that technology is the principal driver of health policy, health care delivery and negligence law. The report also maintains that that the “culture of technology” is the major force in the development and use of medical technology.

American medicine thrives on the inexhaustible demand for high-tech medical interventions. Patients expect the latest treatments and devices, putting added pressure on physicians to embrace the newest technologies.

But this culture of technology can lead to unrealistic patient expectations and a proclivity to sue when procedures fail. These trends have significant effects on malpractice liability, according to this study.

“Along with improving health, technological advances create opportunities for error in diagnosis and treatment, and those errors may result in more visible and more severe outcomes,” Jacobson wrote.

“The precision of new technologies means that momentary lapses can have major adverse consequences.”

Jacobson, a professor at the University of Michigan School of Public Health, sees no easy legal or policy solution to the technological imperative.

But the report lays out a series of recommendations for improving stability in the medical liability system while continuing to encourage the adoption of new technological advances:

• The Culture of Technology: A more forthright debate is needed between medical leaders and the public over the cultural aspects of medical technology to alter expectations about what new treatments and devices are capable of achieving.

• Technology Assessment: Develop a more robust technology assessment process that helps ensure patient safety by limiting improper use of unproven innovations and allowing more training time for physicians and other health professionals.

• Legal Standards of Care: Change the standard of care to incorporate cost-benefit analysis, allowing physicians to weigh available resources when deciding to adopt new technologies.

• Liability Doctrine: Design a no-fault system in cases where causation is indeterminate (such as with neurologically impaired infants).

• Expert Testimony: Expert witnesses are necessary in establishing liability for the use of technology, but they often disagree over what constitutes appropriate care. Jacobson describes three possible solutions: independent panels under judicial supervision to review and monitor expert testimony; use of court-appointed experts; or developing specialized courts. Of these, he argues that the best solution is an independent judiciary panel that would review and monitor expert testimony, and make use of court-appointed experts.

Liability exposure inevitable

Jacobson concluded his report with a cautionary note: “Malpractice crises have generated an enormous amount of commentary, empirical report and reform proposals. By focusing political attention on simplistic fixes, such as caps on damages, policymakers have lost sight of the broader factors responsible for the recurrent malpractice crises. As long as society demands technological innovation, liability exposure is an inevitable consequence for physicians, hospitals and other health care providers.”