The Experiences and Objectives of a Legal Expert
Dr. Leopold-Michael Marzi, Director of Vienna General Hospital’s legal office
It goes without saying that the hospital is a world of its own, which outsiders find difficult to penetrate. For this reason, it is implausible to take the risk strategies of other systems as a model for the hospital sector without first subjecting them to scrutiny. Nevertheless, the prospect of teasing out and applying parallels – and differences - remains an appealing one.
Integrated Approachat the Vienna General Hospital
For some time now, the Vienna General Hospital, with the assistance of its internal legal office, has been endeavouring to introduce an integrated risk management approach incorporating the following elements :
• Risk assessment of patient care in the broadest sense
• The legal aspects of hospital activities
• An error management culture
• Raising awareness of error prevention
• Comparison of hospital activities with those sof similar risk-prone sectors such as civil aviation
It is not necessary to expand further on why effective risk management in hospital is not possible without the participation of all of the healthcare professions. With job demarcation a prominent feature of modern hospitals, it is imperative that all associated professions are also included in risk management. In the technical field, for example, a technological defect may contribute to or cause a medical error.
Proper Handling of Accurate Information
While the parallel with civil aviation may appear misplaced at first sight, it is nonetheless highly promising. The decisions taken by doctors and pilots when performing tasks may have fatal consequences for patients or airline passengers. However, the risk of a fatal outcome is substantially reduced when appropriate safety precautions are taken. Given the distances involved, air travel is an extremely safe means of transport and mortality rates are low relative to road transport. Whereas pilots must complete a series of concrete safety checks, the interdisciplinary obligations applying to doctors are not spelt out with any degree of clarity, even though the medical profession is bound by a general code of conduct (for example, the principle that doctors do no harm).
Much of the information provided by patients is not properly scrutinised or assessed and decisions are often taken spontaneously based on what is considered predictable. For example, a patient may have nothing to hide when she indicates she is not pregnant but she may still be wrong. For safety reasons, therefore, her condition should be verified before surgery proceeds.
The argument that doctors have nothing to learn from pilots because flying an aircraft and performing surgery are fundamentally different occupations is bogus. Clearly, no serious pilot would try to tell a doctor what to do. A pilot could, however, offer a doctor advice on the tools available to minimise errors.For example, optical and acoustic signals can improve concentration. A quick double-check just before administering a drug drastically reduces the number of errors.
Contribution of Hierarchies
The argument that hierarchical systems such as hospitals cannot adopt error prevention mechanisms similar to those operating in aviation is based on false assumptions. Hierarchies are by no means alien to the airline industry. As is clear from their uniforms, co-pilots are not the highest ranking members of an aircraft’s crew. Nevertheless and despite some initial resistance, the airline industry managed to require pilots to listen to their co-pilots, even where they are old enough to be their fathers.
Aviation law played a key role in prescribing a clear set of duties for every occupational group involved in air travel. Airline disasters may be rare but every pilot, copilot and crew member knows exactly what he must do in an emergency. This knowledge is not theoretical in nature but is tested and, therefore, updated at regular intervals.
During their medical training doctors do not learn what course of action to take when an error occurs. Although a general obligation to engage in lifelong learning exists, only a tiny minority of doctors are fully aware of their legal obligations in the event of a patient being harmed. This situation is conducive to increasing carelessness among doctors and making them even more fearful of making mistakes. Neither position is desirable.
Risk management in hospital is an ongoing process. It is inconceivable that it would apply only to specific professions or that it would be confined to a one-off training programme. A balance must be struck between avoiding unnecessary alarm and lulling staff into a false sense of security in which they believe errors have no repercussions, legal or otherwise. Many of the doctors who have come face to face with a public prosecutor never believed such an eventuality possible because they always acted with their patients’ interests in mind. Even when medical errors do not result in court proceedings, the doctor involved may still pay dearly for failing to take out an insurance policy designed specifically to meet the legal costs arising from cases of medical error.
Even legal experts have come to doubt whether a hospital- based lawyer can do more than deal with the legal consequences of a critical incident, still less to contribute towards developing an internal risk management system.
Conclusion and Perspectives
My experience as the director of the Vienna General Hospital’s legal office has left me reasonably optimistic in this regard. As a lawyer, I do not expect the legal profession to perform miracles. For the legal expert, digging up old files on medical errors for use in training is as important in terms of error prevention as spending time dealing with cases in which patients have been harmed. Creating an error management culture is as important as providing access to all relevant information. Developing such a culture requires the formulation of explicit and comprehensible goals. All relevant actors must be made fully aware of the reasons they are required to act according to certain rules, even if the purpose of these rules only emerges after an incident occurs. Developments in the aviation industry make a formidable case for seeking to develop a strong focus on and awareness of risk management.