Having to do what’s right, more than once

Having to do what’s right, more than once, is an opportunity. A major opportunity for healthcare to do right by others is in malpractice reform, and the opportunity is greatest for active duty military members.

Malpractice and medical mistakes affect active duty and veteran populations, and the unpredictable trajectory of consequences contributes to suboptimal health. Medical malpractice affects civilian populations too, all over the world. Reform with medical malpractice should not only focus on liability coverage; it should focus on accountability and process improvement.

Having to do what’s right, continuously, is an edge. Establishing a formal system of malpractice inclusion in incidents, errors and healthcare process improvement is advantageous. Our world must accept this advantage with integrity, and integrity to military justice with medical malpractice is necessary. We can do what’s right with focus.

Telling the story.

Regardless of who asks, telling the story is important. Military medical malpractice is important for us to understand. As the public remains walled from military medicine and legal differences, passivity grows. This cycle creates continued diminishing of medical justice priorities: the public’s potential advocacy becomes even more silenced as the injustice sentiment persists. Let’s outlast the previous cycles. Let’s make medical malpractice and justice endeavors successful for military members, by telling the story specific to the United States.

*Require public transparency of current laws. Encourage understanding of the legislation and context of active duty and veteran malpractice injustice. The 1946 passage of the Federal Tort Claims Act (FTCA) removed some sovereign immunity culture and allowed lawsuits from persons who were harmed by individuals acting on behalf of the federal government. These laws do not apply for active duty service persons. The 1950 Feres Doctrine established a legal culture that restricted US military service persons from ability to sue, and the Doctrine has been continuously upheld on the grounds of need for military order, hierarchy and discipline. The Doctrine’s upheld arguments specify that the unique relationship between servicepersons and the government requires an avoidance of malpractice accountability through courts. Too, the Doctrine acknowledges that service persons are allowed benefits and provisions in other veteran care, therefore their malpractice injuries can be provided for (1). It would be of public interest to clarify how this law does and does not address justice, emotional compensation, financial needs, health outcomes, integrity to process improvement, disclosure of medical errors and transparency to the public. It is of public interest to account for tax-funded healthcare delivery by acknowledging what the Feres Doctrine limits in data aggregation. Additionally, it is of public interest to clarify the diminished special relationship that occurs when injustice festers. Require public transparency through civilian quality improvement and healthcare law associations at the table. Require an investment of the special relationship between the service person and their government, through public transparency.

*Hold the legal community responsible. While a profession’s preference and discretion are important to uphold, including the Supreme Court’s preference for separation of military and civilian jurisdiction (2), wasteful and inefficient legal processes are of public interest. Legal issues will continue, even with newly passed legislation that allows for military medical malpractice to be compensated (3). Compensation systems are different than formal lawsuits in court. How these cases have been resourced, the continued confusion around interpretation, the continued energies applied to rationalizing the Feres Doctrine and the legal scholarship associated with potential change are all issues that inefficiencies and potential injustice touch. Hold the legal community responsible for swift improvement.

*Be real with the legal community. Literature on the subject is wrought with double standards. In example, Dwight Sterling writes that “the view that the military is what separates the United States’ constitutional democracy from marauding outsiders intent on subjecting Americans to authoritarianism comprises the spiritual energy that infuses the Feres doctrine with its emotional impact. Indeed, it is no easy task to convince the highest civilian judicial body to roll back constitutional protections for a subset of the federal workforce”. Passages such as these already contribute to the evidence of need for immediate reform. If the military is so crucial to democracy, sound and fair justice for military members should be just as easy a priority. Clarification of constitutional law should be conducted to assure the right path forward with medical errors. Additionally, it should not be the job of military members, nor general civilians, to “convince” judicial bodies. Protecting the federal workforce, and the special relationships involved, are the legal and judiciary professionals’ responsibilities. If there needs to be convincing to roll back constitutional protections, or uphold the protections, then the entire subject has been too grey anyway. If there needs to be convincing to do one’s job, there needs to be professional replacement and reform. It is the legal community’s responsibility to step in, ask for incidents, errors, and would be malpractice claim estimates, then compare to current ongoing medical and other care costs associated to malpractice injuries.

*Assign a civilian-military team to analyze issues alongside reform. Specify continued concerns that will persist, despite new compensation systems. Some broad issues in malpractice justice include public transparency of errors, serious harms that will continue, confusion of the application and court resources utilized due to this confusion. Other ongoing, pressing issues in malpractice justice for military members include the barring cases on the grounds of discretionary function (4), pregnancy as a life experience outside of military jurisdiction (5) , prevention of fairness that disrupts the order that Feres claims to uphold, double recovery (4), and unaccounted costs associated with life altering medical errors. Additionally, prenatal exposures, reproductive exposures and pediatric error responsibilities (6,7) remain in limbo. Debating these issues for decades has left little in achievement. Assign the expectations with timelines attached.

*Address comprehension and consent of the military service person with medical liability waiver. What is the conversation around military liability immunity at the time of recruitment? What is the continued follow up conversation in rights and healthcare delivery? Clarify the submissive culture of hierarchy as a separate issue to medical harm. Waivers that explain the waiving of rights to sue and liability immunity have been suggested (8), yet even these changes may not establish integrity to comprehension. Additionally, reasons for choosing military service may cloud comprehension and judgement on rights. Address this and get it right.

*Consider injustice as a quality of life indicator. The sense of injustice has profound consequences to all involved, including the soldier, those who caused harm and the general public (9). Justice is a quality of life issue, and the legal scholars who circle Feres Doctrine for decades ought to know better. Give merit to injustice, and remove the priority influencing of those who cannot respect this merit.

*Provide a detailed analysis of the consequences to reliance on the Feres Doctrine for malpractice immunity. There are concerns that sovereign immunity affects military healthcare culture to an unknown extent, military medical practice to an unknown extent and military medical errors to an unknown extent. Concerns regarding application of the Feres Doctrine are abundant and valid: that Feres has been interpreted as illogical, that legal professionals attach emotion to military hierarchy unprofessionally, that there is a lack of cohesiveness, that there has been inappropriate expansion toward any military medical error, that there is disorganization toward the definition of military discipline and that it has created diminished professionalism and moral injury to courts as a whole. Concerns with the Feres Doctrine also include that harm to service persons continues, that the Doctrine may contribute to harm, that there is disorganization to its application when involving reservists, National Guard, civilians and remote populations, and that its application with remote work is confusing (9). There is also continued concern with the Feres Doctrine and sexual assault, of which military medicine is uniquely attached. A detailed analysis of military malpractice injustice, publicly available and held in priority, is necessary.

*Require a task force to address the recommendations for military malpractice and justice improvement. Remediation of the asymmetry of the Feres Doctrine has been considered a broad goal. Recommendations that compare incremental steps or blueprints for legislative reform should help shape a national strategic plan. Recommendations to include worker’s compensation strategies should be addressed (9) and, if found suboptimal, declared so. Consideration to state legislature actions, such as codifying the official conduct/private conduct distinction within state law, should be considered (9). Recommendations to improve and codify the Feres application, with considerations such as discipline determinants, should also be addressed. The removal of the Feres Doctrine, as it pertains to medical malpractice, should also be afforded national analyses and review. Justification for continued application is a requirement to the public and should be treated as such.

*Detail and plan for immediate actions that the military can take with initial reform and compensation claims. Data aggregation, comparison of claims to incidents, malpractice reform analyses associated with contracted private providers and other avenues of process improvement should be detailed and initiated.

*Be accountable to military and civilian comparisons. Some military legal scholars have concluded that negligence and malpractice are much higher in the military than civilian, but what does that mean? Where is the data? How can this work be this standardized for continuous process improvement work? Be accountable (9).

*Respect the tone of the literature. There is a plethora of literature on military malpractice injustice, the Feres Doctrine and associated issues for US service persons. As an example, the continued inclusion of sexual assault and injustice in literature should be responded to with serious military healthcare consideration. Of equal and distinct addition, legal scholars highlight that the inability to find closure causes secondary harm and severe injustice. The tone of literature often depicts a court system bereft of military consideration or inclusion, with court systems preferring the silo. There is no accountability to service person or public wishes in court and justice reform, and the current system highlights a civilian-military gap so great that resentment threatens to fill it. The tone of literature, literature often written by civilian legal scholars or military experts, should be respected and acknowledged.

*Respect the public. Scholars make note of sovereign immunity and historical roots in monarchies, citing court references to English sovereign immunity of the Crown(9). The United States military members do not serve a Crown, nor do they serve individuals in federal government. Respect us as a public, and ask that analysts, publishers, court systems and institutions do the same.

*Respect members of the military. Philosophical analytics, including interpretation inclusive of legal realism and court analogy preferences, may be detailed. The back and forth of accountability in military medical malpractice may be a law punt for the United States courts, as ineffective and theatrical as games may be. For those injured, the hurt and permanent change resulting from poorly delivered care is real. The game has grown stale. Refine and standardize methodologies toward military malpractice justice improvement. Scholars can research and judges can quarterback the handoff. Yet at the end of the day, one who has been harmed by medicine requires justice. Respect service persons above analytics, philosophies and lengthy bureaucracy.

*Respect a higher loyalty. Military discipline does not just involve obedience to orders; it involves duty and loyalty to one’s service and to one’s country. Lawsuits brought by service members against the government for service-related injuries have been identified as undermining commitment and loyalty to military discipline. Perhaps it is time to assess malpractice justice as a loyalty to caring for the service persons. A higher loyalty to our country would be to ensure process improvement in medical care for military service persons, to those who have bourne, with acknowledgement and acceptance of military medicine malpractice.

All that matters is that we do what it right, continuously. When we are lucky enough to have process improvement and systems in place, we must use them to the best of our abilities.

Learning from the military malpractice metrics.

With every effort in military malpractice analytics, we must learn a lot. There should be no limit to the time and effort placed into this education. While legislative reforms and public accountability to military medical malpractice take shape, healthcare can be accountable to the metrics now.

*Organize the metrics. Just as Feres and court rulings in active duty malpractice cases can be tabled for comparison (10), so can potential malpractice. Active duty incidents, errors, complaints and malpractice should be compared, with formulas for estimated impact. Veteran malpractice suits should be compared to errors. The work around the malpractice should consider evidence based practice (EBP) availability, adherence to the EBP and adjustments based on liability environment (state cap legislation, etc). The unknowns of impact to providers, active duty personnel, health delivery and other aspects should be listed. Commitment to examining, and eventually preventing, data limitations should drive advancements in the aggregation.

*Refine the coding and data. Examination of relative weighted product (RWP) and military health system (MHS) data for quality indicators can provide insight into malpractice and liability pressures. How is this data comparable to civilian quality indicator inclusion in liability and patient safety efforts? Additionally, physician identifier codes are inconsistent across direct care and purchased care settings. How can we design these codes for standardization in the future?

*Determine metrics that should be available, based on present day expectations in the real world. For active duty personnel, there needs to be transparency in analysis of errors and incidents across outpatient, specialties, musculoskeletal care and other non-hospitalization utilization data. As an example, literature examined inpatient care for liability immunity affected populations (active duty members) and those undergoing care without liability immunity. It was determined that outcomes did not differ, though there was lower intensity of services given to inpatient active duty personnel. This lower intensity was potentially driven by the fact that physicians were shielded from malpractice consequences, and the literature hinted at reform for cost in services. While outcomes are thought to help with cost containment, and liability reform an argument, the work itself needs to be checked, and the tools and formulas validated. Outcomes to health could be included, and the lifelong costs associated with a malpractice injury needs better literature review. Additionally, active duty personnel satisfaction should be included (11). Better metrics around healthcare delivery, health outcomes, active duty personnel and medical malpractice should be expected without delay.

*Define. Define negligence by military medicine. Define standards of care. Clarify defensive medicine (12). Have standards for metrics, include patient care process measures (i.e. excess diagnostics) and outcome measures (i.e. delayed diagnoses and life expectancy). Create standard methodology and formulas for this work, as well as for associated economic analyses. Additionally, literature that provides formulas for intensity metrics associated with liability protections should be reviewed for validity, reliability and standardization (11).

*Maximize the research. In example, analyzing clinician knowledge of active duty healthcare and liability has proven successful, with most physicians aware of laws (11). This work could be expanded for training interventions, contractor task force inclusion (best practice alignment between civilian and military health systems) and clinician voice at the liability reform table. In another example, literature found that physicians who treat polarized populations on the liability spectrum tend to display spillover effects. These physicians treat non-active duty with less intensity, not the other way around (11). How can military inclusion benefit, and be benefited by, inclusion under the greater healthcare umbrella?

*Maximize current quality improvement processes. Ensure systems at MHS allow for peer review, medical errors, complaints and potential malpractice (13).

*Collaborate with civilian healthcare leadership to determine formulas for litigation potential and risk tiers for errors. Methodology to estimate the potential of an error to be litigated, average claim aware and resulting costs should be established in the healthcare industry. Assign analysts to MHS to develop specific reports. The effort to improve based on liability, malpractice and error should not be hindered by federal government bureaucracy at the courts. Incorporate current compensation for injuries (14) and lifelong compensation in veteran healthcare into this work. Analyze for risk to denial of VA claims with the injury as well.

*Create consensus for policy advancement. Literature review responsibilities should be understood. Expert analysis should be followed up with action. Major litigation reform work that recommends EBP development should be coupled with evidence-based adherence guidance, yet also with EBP expectation and enforcement. Unclear or mixed evidence should be supported with a major review. In example, whether or not cap action and shielding increases costs and intensity of services should be analyzed consistently, using consensus in outcomes measured. Contribution of state policy is important to note. The recent publication that found that intensity of inpatient medical care is 4-5% lower for the liability immunity affected population, the active duty soldiers, is a case in point. The intensity decrease was stronger for states without caps or non-economic damages awards (11) . Create consensus for policy development, and keep focus on what is best for active duty health outcomes. Consensus in formulas, methodology, literature priorities, quality to publication and evidence based recommendations is feasible and should begin without delay.

*Create accountability to the gameplan. Timelines, goals and other aspects of strategic planning should be developed. A formal, transparent way forward is necessary.

*Be accountable to class action. Pretending that active duty personnel have not considered class action suits is immature and ignorant. While class action in the UK has seen courts side with the Ministry of Defence (15), informal class action organization is likely a continued conversation among active duty personnel. If management has to ask why so many feel that their health situations are similar and deserving of financial justice, management has not initiated quality improvement to healthcare. Examine past discussions, potential issues and ask for active duty personnel to lead task forces in risk management around medical malpractice and improvement. Be accountable to class action, and do not brush off the right to optimal health alongside the dismissal of legal accountability to geopolitics.

*Be accountable to deployment medicine. Consider Congressional oversight, with private industry healthcare quality partnership, in deployment medicine. Evaluation of resources, trauma care delivery and quality assurance should be tied to funding. Process and outcome measures should be available in public reporting. It does matter if funding could have established closer trauma care and chose not to. It does matter if geopolitics prevented trauma resources in a timely manner. Let the data do the talking. These metrics should be available to the public, and mismanagement of deployment medicine should be an accountability.

Liability reform expectations.

No limit on time or effort should be applied to medical malpractice, caps and liability reform, yet the expectation of results should be an international movement.

*Compare international compensation systems, malpractice legal processes and liability insurance associated with medical mistakes. Determine who is measuring what in regards to liability reform. Create consistency to methods and create consensus to definitions.

*Coordinate efforts that meet the current climate of civilian medical malpractice liability. Create consensus. National work should seek regional or state comparisons. State analyses should be regularly updated (16). Cap and immunity policies, jury awards and patient safety data should be thoroughly accounted for. The infrequency of robust literature reviews should no longer be acceptable. Additionally, the acknowledgement of the current climate of malpractice liability outcome indicators should be understood, with consensus on moving forward. Some literature indicates statistical significance to caps legislation and outcomes, yet these outcomes are not associated with patients or health. If the 9 of 12 articles included in a literature review report significant findings, and 3 failed to show statistical significance, what is the path forward (17)?

*Demand integrity to the outcome indicators of medical malpractice liability. Caps and litigation reform outcomes are measured often by physician availability, physician migration, claims, jury awards and premiums (17). There is hardly, if ever, literature that includes the economic and other costs associated with poor medicine. Efforts to require health outcomes in liability research and literature should be formalized. While it is known that the malpractice reform and patient safety outcome evidence is mixed (18), liability outcome indicators need to be standardized. Formulas, methodologies, tools and other means to derive the evidence should be conducted in consensus, and this should be a priority. These outcomes must include analyses of individuals impacted, as well as their socioeconomic trajectories and quality of life, for any merit toward integrity. The consensus and effort is not that difficult to do, it just takes coordination.

*Require quality to malpractice liability literature. Caps and other medical reform analyses fail to include comprehensive, clear and ongoing data on market influence. Because stock markets, float periods and other occurrences will impact insurance and investment (17), the impacts should be clarified. Publication quality should be assured, particularly as malpractice reform is of interest to clinicians from all economic literacy backgrounds.

*Build an international medical malpractice platform for professional, trustworthy, best practice initiatives. This effort is feasible and has already been jump started in the literature. Comparisons of medical malpractice between Saudia Arabia and the UK show an in-depth review of several indicators. Both countries have seen a dramatic rise in medical malpractice litigation over the recent years. Process and outcome points were established and included legal aid access, legal fees, average time to court resolution, percentage of cases taken up by the court, transparency of court, physicians specialties most affected by litigation and physician out of pocket charges (19). Comparisons between US, Canada and the UK, conducted by a team in South Africa showcase differences (20).

*Create a formal international review responsibility toward liability reform. Classifications of these reforms have already been organized, including a tri-divisional set. The set sees liability-limiting initiatives favoring health-care providers as one component. A second component is that of procedural innovations promoted as improving dispute resolution processes, such as patient compensation funds, “sorry” laws, disclosure and early offer laws, health courts, and safe harbor laws. The third division lies with major conceptual reforms to move liability away from physicians to hospitals or administrative no-fault compensation systems (21). Malpractice litigation has been noted to be inefficient and costly, with literature on reform models sorely lacking (22). Create formal international responsibility.

*Require quality to international publication. Literature on reform models could require upfront reviews on previous research. Based on scarcity of data and low priorities in research funding, liability data could be compiled on easy to translate platforms. Search terms limited to English only should warrant type search translation capabilities at the publishers and internet platform levels (23).

*Crosswalk liability reform. Caps of legal fees and caps on jury awards have been suggested as potential remedies. Separate courts, compensation funds, insurance reform and other considerations also remain at the forefront. Crosswalk and compare.

Malpractice inclusion in civilian healthcare quality improvement.

With every mistake and failure (not only a clinician’s, but also of those around the clinician), healthcare must learn what not to do and the public must learn what will be improved. People should know and care about failures to the system, so we all learn from them.

*Compare international systems. Compare compensation systems, malpractice legal processes and liability insurance associated with medical mistakes. Determine who is measuring what and create consistency to methods. Require consensus to definitions for errors, defensive medicine, malpractice, outcomes and other considerations.

*Find consensus with what is known. Malpractice litigation has been noted to be inefficient and costly, with literature on reform models sorely lacking (22). What else is of international common knowledge regarding liability reform in medicine?

*Assign responsibility to malpractice and quality improvement in healthcare. Potential to use medical malpractice and liability claims for patient safety is not the responsibility of the courts, it is the responsibility of healthcare. Justice is a responsibility of the courts. Data sharing, in a timely manner, is a shared responsibility. Australian literature has examined that potential for data collection in liability research is hindered by lengthy court cases (22). This limitation could be prevented, with shared responsibility assigned.

*Compile the quality improvement research. Studies that have examined quality improvement outcomes associated with malpractice data are important. In example, a five-site Netherlands study considered quality improvement initiatives alongside ED malpractice claims and felt that these initiatives may have had impact (24). Additionally, there was a decrease in ED claims as physicians became part of the hospital network. Where are the similar studies across the world? What methodology could be applied for assured evidence? What policy implications would strong evidence hold, and can the methodology be applied to incident and error records? Compile the research and have consensus on the methodology and evidence.

*Require quality to data analytics. Response-driven teams have examined medical malpractice associated with Ohio obstetrics and gynecology and taken credit for reduction in litigation costs and safety events, though claim differences are unknown (25). Establishing quality guidance to liability research could spell out good data aggregation practices, such as inclusion of claims. In another example, a Chinese malpractice claims review of various hospitals (26) did not assess incidents or errors, nor did it speak to differences in socioeconomic between the graded hospitals. Court access, court fees, applications, court acceptance and everything else that may be related to financial bias could have been included. Accountability to quality in research by establishing the standards is important.

*Connect policy to the malpractice data efforts. Policy simulations with clinician industries, such as medical education and compensation demands, could assist in quality and malpractice reform (27). Malpractice data could also transform inpatient and outpatient care, as well as hospital quality improvement policies (28).

*Consider comprehensive application of the research work, and involve healthcare operations holistically. Malpractice data can be used to inform and tailor clinician curriculum (29). Patient complaint analyses that targets time from graduation and time specialist training (30) could be matched with malpractice training.

*Collaborate for frameworks and guidance to operations associated with malpractice, in the spirit of the unknown. There may never be confident evidence for some malpractice and liability insight. In example, despite incident reporting and accreditation advancements with errors, disorganization remains. There is particular disorganization around medical error disclosure and apology. How disclosure and apology truly contributes to malpractice may never be known. Framework and guidelines would assist in disclosure of error nonetheless. With guidance for healthcare facilities and clinicians, disclosure, malpractice claims, patient outcomes (including justice, satisfaction and quality of life) and quality improvement to healthcare delivery could be redesigned and advanced as a whole. As an example, Canadian work has organized guideline analyses to account for inclusion of specifics, including avoidance of blame, support to the staff, an apology or expression of regret, avoidance of speculation, some form of patient support, and education/training to the clinician (31). Knowing that evidence may never be strong or generalizable in current research conditions, guidelines should be shaped anyway.

*Create a culture that includes malpractice data as a quality improvement point, and require this data as a quality improvement reimbursement condition. Partner with liability immunity affected populations. Partner with military leadership.

When the military protects us, when the military refrains from running our government, when the military supports democracy, countries feel fortunate. As we tell ourselves how lucky we are, we ought to back it up with integrity in doing what’s right. Healthcare must support and partner in leadership, toward service person justice in medical malpractice.

Malpractice reform must not only include liability reform. Malpractice reform must include a healthy dose of fear, and unlimited hope, by data transparency and quality improvement analytics inclusion. This is true for civilian populations, and true for military populations, and the malpractice reform work should be accomplished together.

It is not difficult to get started, nor to see malpractice reform through. All that matters is that we do what it right, continuously. When we are lucky enough to have process improvement and systems in place, we must use them to the best of our abilities.

Traveling with the Refs:

1.https://core.ac.uk/reader/222446080

2. https://fas.org/sgp/crs/misc/LSB10305.pdf 3.https://www.navytimes.com/news/your-navy/2019/12/26/explainer-can-you-now-sue-the-military-for-medical-malpractice/#:~:text=Service%20members%20will%20still%20not,to%20sue%20in%20federal%20court.&text=However%2C%20victims%20seeking%20redress%20in,injuries%20that%20occurred%20in%202017

4. https://apps.dtic.mil/dtic/tr/fulltext/u2/a521076.pdf

5. https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1027&context=ndlr_online

6.https://www.google.com/url?q=https://www.gwlr.org/wp-content/uploads/2015/05/83-Geo-Wash-L-Rev-647.pdf&sa=D&ust=1610560547407000&usg=AOvVaw0HYAVw1rxUCBVBSPMaRDC7

7. https://www.gwlr.org/wp-content/uploads/2015/05/83-Geo-Wash-L-Rev-647.pdf

8. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2374243

9. https://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article=2041&context=etd

10. https://thejns.org/focus/view/journals/neurosurg-focus/49/5/article-pE7.xml

11. https://www.nber.org/system/files/working_papers/w24846/w24846.pdf

12. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6800742/