Most of ours glaring mistakes in medicine they often become processes. A common denominator of those processes is that they should prevent these situations from happening to another patient. However, the most serious of these cases are settled before trial, and almost all of these settlements contain a confidentiality or nondisclosure agreement (NDA)also known as “monk order”. No one can talk about it. Nobody learns anything. We bury the teachings 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. Stories can be told anonymously and without mention of settlement amounts. No guilt or shame, just teachings.

Stories have been the most memorable source of learning for millennia. They stay “the brain’s favorite learning unit – and most powerful tool of persuasion.” Without learning from these stories, we will continue to repeat our mistakes. Patient safety will not improve.

Processes do not improve quality

Making sure mistakes are not repeated should be our number one goal. Several studies have shown that processes don’t improve quality of care. In fact, I’m not sure that our system of lawyers, medical malpractice insurers, or those being sued has ever considered that preventing medical errors should be one of their goals. Why? Because each part has a different purpose — and it’s not patient safety. The irony for insurers is that the biggest opportunity for cost savings would be to eliminate medical errors in the first place.

Meanwhile, we know it’s possible to effectively encourage safety — we see other industries doing it much better than healthcare. The poster child for error prevention is aviation industry. The National Transportation Safety Board (NTSB) and Federal Aviation Administration (FAA) does not hide the results of plane crash investigations — they share the learning of every pilot, mechanic and operator of a similar plane.

If it weren’t for this transparency, passengers could die at a faster rate than in nearly 100,000 American lives lost annually due to a medical error. If the aviation industry handled its air accidents the way 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 records of four different patients who were left paralyzed when their spinal epidural abscess (SEA) was omitted.

In my experience, an SEA can be ruled out in most cases with a complete patient history, including an assessment of risk factors such as immunocompromise, diabetes, alcohol/substance abuse, recent spine surgery, hardware, and so on away. If an SEA remains possible, a normal sedimentation rate (ESR) or C-reactive protein (CRP) will rule out even more of these cases. If ESR or CRP is elevated or strong suspicion remains, an MRI of the entire spine is warranted. I would estimate that about half of those MRIs could 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 learnings with my colleagues in emergency medicine. This led to a free monthly storytelling project now in its 10th year with over 5,000 readers. The format is simple: facts, plaintiff’s arguments, defense arguments, result, conclusions, supporting references. “Takeaways” are the key.

What does our industry think?

Five years ago, I hosted a panel 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, a defense attorney, a consulting paralegal, and an executive from a medical malpractice insurance company. Participants were told to assume that learning from our mistakes would be completely anonymous, never naming names or revealing the value of an agreement.

Despite this directive, the various members of the group expressed their positions as follows:

• plaintiff lawyer: My responsibility is to my client. I have to do what I can. If the defense demands confidentiality and is willing to pay my client more for it, my client’s care comes first. (Which only ensures that no one learns and the same mistake will be repeated.)
• Lawyer: My client’s livelihood is at stake. One 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 director: Transparency will lead to more copycat lawsuits. Plaintiff attorneys will gain information and ammunition to pursue more cases, leading to higher medical malpractice insurance rates. And we’re already sharing information through claim reports and case studies. (But the vast majority of cases result in pretrial settlements that have NDAs, so those lessons are never learned.)
• Legal consultant medical assistant: 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. (Yes!)

After an hour of discussion and another 30 minutes of audience questions, the elephant in the room remained: We know what we need to do, but we don’t have the motivation to do it.

A way forward

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

• Improving patient safety by treating every medical malpractice resolution as a teaching opportunity.
• Sharing the lessons from our mistakes — anonymously — with those doctors who might repeat the error.

An advocacy group working for such a solution is recently established National Patient Safety Councilmodeled after the aviation NTSB, with the goal of creating a scalable, data-driven approach to preventing and reducing patient safety events in medical environments.

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

Dr. Charles Pilcher, is a retired emergency physician and emergency department medical director. He currently serves on the board of EvergreenHealth in Kirkland, Washington and chairs the Quality and Safety Committee. He has served as medical-legal counsel in malpractice cases throughout his career and is the editor/publisher of a free monthly newsletter, “Medical Malpractice Insights — Learning from Lawsuits.” The opinions expressed are solely those of the author.