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Correspondence  |   May 2000
The Purpose of Peer Review
Author Notes
  • Bryan A. Liang, M.D., Ph.D., J.D.
  • Grayson Distinguished Visiting Professor
  • Southern Illinois University
  • School of Law
  • Carbondale, Illinois
  • baliang@alum.mit.edu
  • Chairman
  • Department of Anesthesiology
  • St. Elizabeth Medical Center
  • Professor of Anesthesiology
  • Tufts University School of Medicine
  • Editor-in-Chief
  • Journal of Clinical Anesthesia
  • Boston, Massachusetts
Article Information
Correspondence
Correspondence   |   May 2000
The Purpose of Peer Review
Anesthesiology 5 2000, Vol.92, 1495. doi:
Anesthesiology 5 2000, Vol.92, 1495. doi:
In Reply:—
We very much appreciate the comments by Drs. Hogan and Laravuso regarding both the recent Anesthesiology  article 1 and the accompanying editorial. 2 We hope our response stimulates debate in this exceedingly important area.
Drs. Hogan and Laravuso indicate that the “the problem [of discrepancy between peer review assessment and litigation risk] lies not so much in the system of litigation that society has adopted, as in the training and credentialing of practitioners.” Although the training and credentialing of practitioners is, indeed, an exceedingly important consideration for clinical care, the conflict between what medical professionals deem is appropriate care and that care which may result in litigation may be related primarily to weaknesses with how the malpractice system actually functions rather than training and credentialing per se  . Training and credentialing are important within the profession to assure that physicians practice in a clinically appropriate manner. The legal system, through its agents of judge or jury, are to accept what such appropriately trained and credentialed practitioners indicate is standard and apply it to the case at hand. Edbril and Lagasse found that the connect between what is legally answerable and what is professionally appropriate appears lacking. Assuming that the anesthesiology reviewers are not unqualified either through training or credentialing, something I do not believe Drs. Hogan and Laravuso suggest, the disconnect may reside instead in the application of the law and the medical standard of care by the legal system. This possibility is supported by other studies 3–5 in addition to the Edbril and Lasse piece.
Drs. Hogan and Laravuso also indicate that a justification of the current tort system resides in the contention that “[t]o scrap a system that has accomplished much good (handicap access, gender equity, the tobacco settlement to name a few) would be unwise.” However, medical malpractice, which relies on a professional standard of care that may not be being applied appropriately, is, we believe, quite different from civil rights cases or class action litigation for an unhealthful, but legal, product. The difficulty in medical malpractice cases as illustrated in the Edbril and Lagasse article is that the tort system may not be able to function according to its own rules; thus, its social goals of reducing patient injury and maximizing patient safety may not be accomplished. Further, as pointed out in the editorial, the compensation function is also not being well accomplished. Through reform directly addressing these difficulties, we may be more able to reach the goals of patient safety and compensation; but certainly such reform does not preclude other types of tort litigation.
In addition, Drs. Hogan and Laravuso indicate in their letter that another justification of the tort system is that “the personal injury tort system and its incentives represent the physician’s best weapon in the battle for autonomy against managed care intrusions. …” We would respectfully disagree with them on this point. A vast majority of physicians are independent contractors; thus, under traditional independent contractor law, any patient injury liability redounds to the physician him or herself, even if the managed care organization mandates specific utilization review procedures, cost-containment measures, the patients that the physician must see, and so forth. 6–8 Further, federal law, the Employee Retirement Income Security Act, can immunize managed care organizations from state law tort suits. 6 Thus, traditional independent contractor tort law, as well as federal legisla
tion, most likely do not represent weapons against managed care intrusions. Indeed, this is why legislation designed to provide autonomy to physician and patient decision making may not be effective, such as gag clause legislation. 9 
Drs. Hogan and Laravuso support the call for evidence-based medicine and an assessment of safety outcomes, but indicate that “this alone will fall far short” to accomplish the goal of patient safety. Although perhaps a disagreement only of degree, such study and assessment is essential and is an integral component to improving patient safety as indicated by a recent Institute of Medicine report. 10 Of course, education and a change of culture to clinical decisions based on valid evidence is just as important so that the maximum benefit of these insights can accrue to patient safety.
To survive in the modern delivery environment of health care, a framework of legal medicine should indeed be part of every medical student’s education as Drs. Hogan and Laravuso suggest. Beyond traditional legal medicine topics such as informed consent and medical malpractice, modern health law and policy considerations such as financing mechanisms for health care, managed care concepts, contracting, fraud and abuse, antitrust law, and alternative dispute resolution methods should be taught so as to truly prepare the student for the practice environment he or she will enter. 11 With regard to a legal medicine specialty board, the American College of Legal Medicine certifies competency in legal medicine; however, it currently is not approved by the American Board of Medical Specialities as it once was.
Drs. Hogan and Laravuso also suggest that to improve patient injury litigation, a special medical malpractice bar be created akin to the intellectual property bar, with the standard jury system retained. Of course, very few would argue that a more informed legal profession as to medical delivery would be undesirable. Yet the results of the Edbril and Lagasse study and others discussed above indicate that the dissonance between what is deemed medically appropriate and what is deemed legally appropriate lies with the finders of fact, usually the juries. Thus, the focus of reform might be more suitably placed instead upon promoting medically sophisticated juries.
Finally, Drs. Hogan and Laravuso note that financing decisions that result in population-based care rather than an individual patient focus may not be well reflected in the traditional legal system. They then indicate that “f  doctors and other caregivers believe their patients deserve at least the level of personal zealous representation available to a client at a law office, they must also perceive that a tort system, modified to increase the skill level of its actors, is their last, best defense.” Financing decisions that result in changes in health care delivery emphasize the need for reform of the traditional tort system to reflect these changes. In addition, a belief that patients should be afforded their legal rights is not necessarily in conflict with a belief in medical malpractice reforms. The evidence suggests that the malpractice tort system does not in practice achieve its goal of deterrence, does not induce physicians to act affirmatively to adopt optimal patient safety activities, and does not compensate patients who are injured in the health delivery system. Physicians who call for a system that does achieve these goals, is continuously responsive to an assessment of errors, and integrates results of patient safety research would appear to have their patients’ and professions’ best interests at heart. Continuing to use a system that has been “broken .. for some time”12 to further patient interests and professional competence would not seem to be the optimal use of the increasingly scarce resources in the health delivery system.
References
Edbril SD, Lagasse RS: The relationship between malpractice litigation and human errors. A nesthesiology 1999; 91:848–55Edbril, SD Lagasse, RS
Liang BA, Cullen DJ: The legal system and patient safety: Charting a divergent course (editorial). A nesthesiology 1999; 91:609–11Liang, BA Cullen, DJ
Brennan TA, Sox CM, Burstin HR: Relation between negligent adverse events and the outcomes of medical-malpractice litigation. N Engl J Med 1996; 335:370–6Brennan, TA Sox, CM Burstin, HR
Liang BA: Clinical assessment of malpractice case scenarios in an anesthesiology department. J Clin Anes 1999; 11:267–79Liang, BA
Liang BA: Assessing medical malpractice jury verdicts: A case study of an anesthesiology department. Cornell J Law Public Policy 1997; 7:121–64Liang, BA
Liang BA: Patient injury incentives in law. Yale Law Policy Rev 1998; 17:1–93Liang, BA
Liang BA: Error in medicine: Legal impediments to U.S. reform. J Health Politics Policy Law 1999; 24:27–58Liang, BA
Liang BA: Deselection under Harper v. Healthsource: A blow for maintaining patient-physician relationships in the era of managed care. Notre Dame Law Rev 1997; 72:799–861Liang, BA
Liang BA: The practical utility of gag clause legislation. J Gen Int Med 1998; 13:419–21Liang, BA
Kohn LT, Corrigan MJM, Donaldson MS (eds.): To Err is Human: Building a Safer Health System. Washington, DC, National Academy Press, 1999
Liang BA: Health Law & Policy. Woburn, MA, Butterworth-Heinemann, 2000
Brennan TA: Medical malpractice reform–The long view (editorial). J Clin Anes 1999; 11:265–6Brennan, TA