It's time to sue the trustees

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I’m not a health care person by training. Much of my background is in the public policy arena—starting first in energy and then branching out to telecommunications, and thence to water and wastewater. In parallel, I’ve also run large organizations and managed thousands of people and billions of dollars in capital and operating budgets. I’ve been a regulator and I’ve been regulated. When I offer opinions and illustrative stories on this blog, I am mainly driven by what I see as failures, and I try to offer approaches that might work to improve things.

In that sense, for almost nine years, the blog has presented a series of advocacy documents. Regular readers know that I have seldom pulled my punches: There are enough people who try to be diplomatic in what they say and how they say it. When it comes to saving lives from preventable harm, I am too impatient to be overly considerate about people’s sensibilities.

In all this, I’ve had to decide my own role, beyond what I do to make a living (providing negotiation training and advice to companies in many sectors around the world.) I’m honored to be invited by hospitals and others to provide stories, training, and maybe even some inspiration as they pursue their journeys towards patient-driven care. Those journeys rely on creating learning organizations, characterized by respectful treatment of the staff and transparency to achieve process improvement to deliver high quality and safe care. I’ve chosen to interact mainly with those hospitals that we have come to view as “islands of excellence in a sea of mediocrity.” I don’t spend time in places that are not committed to the quality and safety journey because I only have so much time available and because I don’t find much merit in hitting my head against a wall.

Admittedly, that’s a luxury on my part, hanging out with the 5% or 10% of institutions that “get it.” But what becomes of the rest, the vast majority of hospitals that don’t get it? My buddy Dave Mayer likes to say that the answer to achieving greater quality and safety and transparency is to “educate the young and (when necessary) regulate the old.” Beyond the humor, there is an element of wisdom in Dave’s construction of the argument.

I’ve spent a lot of time on this blog carping about the lack of rigor that has gone into the design of health care regulation, so I don’t want to spend time on that today. Suffice it to say that the hand of government is often roughly applied, and we can only hope that officials get better at designing and implementing policies.

But recent remarks by Bob Galbraith at our student and resident training program (Telluride East) reminded me that the heart of professional activities must be self-regulation. He posited that the medical profession has failed in this regard—avoiding discipline of their members who are clearly impaired, incompetent, and negligent. So, he suggests, fix this they must, or some one will step in and do it for them.

Bob’s right on his particular point, but we know that most medical harm does not derive from the individual actions of doctors. It derives from the work patterns and systems that are in place in hospitals. These are not organizational aspects in which most doctors and nurses have been trained. They are trainable with some time, effort, and resources—but those in a position of authority must encourage and demand that it happen. The “those” in this case must be the boards of trustees, the governing bodies of the hospitals.

But it is in this arena that we have a public policy lacuna. While trustees often have a statutory responsibility for the quality of care given in their hospitals, they are never held accountable for that care. The history of involvement by lay governing bodies is heavily centered on the social and community aspects of governance, including fund-raising. Clinical decisions are left to the clinical staff, as they should be, but oversight of clinical activities by the governing body is often rudimentary at best.

It’s time to change this pattern and, where necessary, force greater engagement by trustees in quality and safety issues. Given the stature of trustees in the community and their political influence, I don’t expect legislators to do much on this front. But there is a group that could take advantage of the current situation and give those trustees a real incentive to learn how to effectively govern safety and quality.

That group is the medical malpractice plaintiff bar.

Currently, plaintiffs’ attorneys sue the doctors or nurses or the hospital when someone is harmed and negligence is alleged. The main argument is that the standard of care was not met, and the focus is usually on the specific actions or non-actions by the clinical staff.

But it’s time for a broader definition of negligence: Negligence today is found in a hospital that has not used the wealth of data and experience garnered around the world by the “islands of excellence,” those thoughtful hospitals who have created a new standard of care by the manner in which they have organized work and by the existence of a culture of continuous process improvement. All of those hospitals, too, have boards that are assiduously engaged in appropriate governance of quality and safety.

I call upon the plaintiff bar to expand their reach in medical malpractice cases. Name the individual trustees as defendants. Depose them as to the extent of their activity and oversight with regard to quality and safety improvement. Ask them if they have established a corporate goal of eliminating preventable harm. Find out how they measure and monitor harm in their hospitals. Ask them how much time in each board meeting is devoted to the topic compared to, say, financial matters.

Counselors, I think you will find—all too often—a prima facie case of governance negligence, a factor which is highly likely to support the underlying contention in your particular litigation.

And think more broadly than individual patient lawsuits. Curious about targets of opportunity? The CMS Hospital Compare website might provide guidance. Simply look for those hospitals that have an incidence rate for, say, central line infections or surgical site infections or urinary tract infections that is above the national average. Given the standard of care for such items, if a place has been persistently below average, it’s likely that something is awry. You might even find that you have the basis for a class action lawsuit in those hospitals, as their poor performance is a composite of hundreds of patients.

I have no interest in seeing trustees being held financially liable at a personal level for their lapses, and, after all, insurance will protect them from that. But I do have an interest in having them squirm under the questioning of an experienced malpractice attorney about their failure to carry out their most important fiduciary responsibility, the well-being of patients in their institutions.