Will AI revolutionize malpractice — or fall victim? (Behind the Scenes, Part 2)
In medicine, culture can make-or-break any new tech. In a field wracked by malpractice lawsuits, how would the AI "black box" fit in?
It’s no secret that AI is emerging faster than the regulations meant to constrain it. For black boxes, that means a lot of uncertainty over how surgical recordings would fit into the malpractice system, despite Stanford professor of surgery Teodor Grantcharov’s assurances that they won’t per his company’s 30-day deletion policy. This legal unknown drives the boycotting and sabotage that I reported on for MIT Tech Review, so read the full story here. But then come back to this newsletter to delve into the legal implications of black boxes and why doctors’ fears about new tech might ultimately be shooting themselves in the foot.
Grantcharov operating in a black box-equipped room at St. Michael’s Hospital in Toronto (Yuri Makarov)Everyone’s Worried about Malpractice
At Duke University, vice chair of clinical operations Christopher Mantyh used to hear all sorts of concerns about the black box — from privacy to disciplinary action to the Hawthorne Effect to general uneasiness with surveillance. But over the past four years, the concern with the most staying power, however, was the medico-legal one. Will these surgical recordings be used in malpractice lawsuits?
Technically speaking, nobody knows for sure, according to Michelle Mello, a professor of law and health policy at Stanford, but she thinks OR black boxes could actually help surgeons. “Most of the time, it’s not going to show negligence,” Mello emphasizes given that only a quarter of adverse events in the hospital are due to negligence. “It's going to show an operation that maybe wasn't carried out perfectly, but it was well above the standard of customary care.”
Beyond helping exonerate doctors in a malpractice lawsuit, greater transparency might even reduce the number of cases filed, suggests Justin Dimick, chief of surgery at the University of Michigan. For instance, his hospital’s approach to medical errors, known as the Michigan Model, is to conduct a thorough evaluation after each complaint, apologize if a mistake is found and learn from it, and then explain and vigorously defend if the hospital thinks it did everything right. Ever since this strategy was implemented in 2001, malpractice lawsuits have dropped by 65% and the hospital’s legal costs by about 40%.
Mello says that many patients file malpractice lawsuits because they don’t understand what happened to them after a surgery, and they feel stonewalled by their doctors. “When it is explained to them that what they suffered was a bad outcome but not malpractice, or it was malpractice, but people are very sorry and happy to compensate, that avoids a lot of problems,” Mello says. Rather than a bloodbath, she believes OR black boxes could help patients understand and give them back some semblance of control.
But it doesn’t matter if Mello is correct about OR black boxes helping surgeons within the legal system, if the actual surgeons still think the recordings will hurt them. “It looks like a horror show,” says Alexander Langerman, an ethicist and head and neck surgeon at Vanderbilt. “Some plaintiff's attorney is going to get a hold of this, and then some jury is going to see a whole bunch of blood, and then they're not going to know what they’re seeing, and everything's going to be battled away.”
He thinks that some parts of the sausage-making might be better left in the factory, not to hide operative mistakes but because extra information isn’t an unconditional good. “I fly on a plane, and I don’t get the cockpit voice recorder — or like to know that we had a near miss,” Langerman says. “Is that going to help me at all? No.” Furthermore, if these recordings do begin to be used punitively by the courts, the people who will be punished are “those few poor souls who were the early adopters who believed in safety and were doing it for the right reasons,” Langerman adds.
Analytics page for black box (Surgical Safety Technologies)Malpractice Doesn’t Serve Patients Either
That’s a surgeon’s perspective. But wouldn’t it be a good thing for patients if they could access OR black box data and get justice accordingly? It’s not that simple, says Tenielle Brown, a law professor at the University of Utah, because these surgical recordings would enter a fundamentally broken legal apparatus for dealing with malpractice, for both patients and surgeons.
For patients, Brown argues that the tort system, or lawsuits over wrongdoing that causes injury but isn’t criminal, can’t promise real justice. That’s because the statute of limitations has been getting shorter and shorter, now down to two to four years; maximum damages have been cut and capped in most states; and the whole process can take up to 15 years before any money trades hands. That’s not to mention that only a fraction of genuine medical errors are turned into lawsuits because malpractice lawyers do a lot of cherry-picking, since they are generally paid only if they win.
Emory professor of law Joanna Shepherd estimated that around 95% of patients who seek an attorney for medical harm are shut out of the legal system, with women, children, and the elderly disproportionately affected. “They’re going to figure out how much money you have,” Brown says, “because if you are unemployed, they’re not going to make a lot of money on you.”
For a similar set of reasons, Brown argues that the tort system is lousy at safety and deterrence for surgeons as well. “It’s a completely after-the-fact, inefficient, weak signal,” she says, with little ability to improve safety and almost no correlation between a genuine medical error occurring and payment being dished out.
As such, instead of surgeons learning from their mistakes, they have become “the most risk-averse, freaked-out people,” overestimating their chance of being sued by 300%, Brown says. This fear often leads to “defensive medicine” described in Part 1 of this series. So, “if we’re really truly committed to reducing medical errors and promoting patient safety, then we should not use the tort system at all.”
Instead, Brown envisions an internal peer review process where hospitals go through everything from near misses to catastrophic errors and, without involving the courts, reimburse patients quickly and fairly when surgeons actually made a mistake — similar to the University of Michigan model. “It would actually be incredibly smart to record these procedures for patient safety reasons,” Brown says, “but then not have the solution when things go wrong to be for individual plaintiffs to sue.”
That’s why she thinks periodic data deletion is an intriguing short-term strategy. “If I were their lawyer, I would tell them to just have a policy of deleting it because then they’re deleting the good and the bad,” Brown says. “What it does is orient the focus to say, ‘This is not about a public-facing audience. The audience for these videos is completely internal.’”
Black box inside an operating room (Yuri Makarov)Lessons from the skies
Surgery could also take a page from aviation for how to run these systems.
According to Sean Payne, branch chief of the vehicle recorder division at the National Transportation Safety Board, pilots had similar concerns about liability, punishment, and Big Brother-style surveillance when black boxes were introduced into planes in the 1950s and ‘60s. The only reason pilots got on board, Payne says, were regulations that restricted use to internal safety purposes, with the government and their employer unable to access the black box to penalize the crew. “If it’s non-punitive and you’re using it just to increase safety,” Payne says, “only then are you going to really start to see people coming over.”
That doesn’t mean bad actors can fly scot-free. In the U.S., pilots can still be prosecuted for negligence after a crash, such as being drunk. But that’s different from punishing a pilot for not being as good as a colleague, or sharing the cockpit recording with all the passengers. “Fostering that environment where you can voluntarily report without fear of something happening to you is critically important and a big part of the reason why aviation is so safe nowadays,” says Payne.
Read Part 1 of this Behind-the-Scenes series of my MIT Tech Review article, further examining the parallels between surgery and aviation, as well as additional concerns surgeons had about the Hawthorne Effect and data being deleted every 30 days.