When entering the workforce as a practicing physician, it is important to have a working understanding of medical liability and risk management. Physicians are by far the most often sued professional in the U.S.
I had the opportunity to speak with a group of medical students and residents about medical liability and risk management recently, and I thought readers of this blog might benefit from the information shared during that presentation.
Definitions and Background
Risk Management refers to a set of policies and procedures designed to reduce the likelihood of being successfully sued for malpractice. It encompasses strategies to provide high quality care, reduce harm to patients, reduce the risk of being sued and minimize losses in the event of a lawsuit. For this post, I am going to limit my comments to the first three of these aspects.
Although programs designed to improve quality and reduce medical errors are important to implement, it is interesting to note that when studied, there is little or no correlation between the quality of care and the likelihood of being sued. Physicians typically overestimate the risk of a lawsuit by a factor of 3 to 4 times the actual risk.
Of all malpractice suits filed, only about 4% ultimately result in an award to a plaintiff. And only a tiny fraction of patients harmed by a negligent physician actually sue for damages.
Still, the average primary care physician can expect to be sued about once every 7 to 10 years. Interestingly, the number of suits filed and average amount awarded has been declining for the past 10 years, with less than $3.2 billion awarded in 2014.
Although the malpractice climate seems to be improving, a lawsuit can be very disruptive, costly and emotionally draining. When involved in a suit, a physician can expect that it will take a least 4 years to be resolved, even if closed without any award. If a case goes to trial it may drag on much longer than 4 years.
The general categories of failures that ultimately result in the filing of a lawsuit tend to fall into one or more of the following areas:
- Problems with the CARE
- Lack of RAPPORT with the patient or family
- Breakdown in COMMUNICATION
- Poor DOCUMENTATION
You’re setting yourself up for a suit if you do not follow accepted guidelines and evidence based medical care. If you don’t use accepted antibiotic choices for acute sepsis, or appropriately evaluate an outpatient with chest pain, or arrange for appropriate follow-up for a patient with abdominal pain, the stage will be set for a lawsuit if something goes wrong and the patient is harmed.
Even if care is entirely appropriate, if there is a poor outcome and the relationship with a patient or patient’s family is strained, there may be an inclination to file a suit.
Illustrative Case: An eighty year old male patient with poorly controlled diabetes and peripheral vascular disease developed sepsis and was admitted to the intensive care unit. In spite of appropriate prophylactic care, he developed an acute GI bleed and subsequently died of later complications related to his hypotension, acute MI and renal failure.
Several months later, a lawsuit was filed by his children for wrongful death. On review of the case by the liability carrier, there did not appear to be any care issues and was felt to be very defensible. But the suit appeared to be filed because of the family’s perception that communication was lacking, the complications were unexpected, and the attending hospitalist was perceived as aloof, uncaring and unavailable to the family when problems occurred with their father’s condition.
Breakdown’s in communication come in many varieties. But the most common that affect liability include:
- Lack of true informed consent and failure to fully discuss likely outcomes
- Failure to inform patients of abnormal test results (imaging studies, lab tests, etc.), often because of a flawed process
If expectations are not clear, then they are likely to be unmet, resulting in frustration and anger. It is important to spend a few minutes explaining to very ill patients that treatment offered is likely to help, but not guaranteed, and that it is important to follow-up if improvement does not occur as expected.
And patients should never be told that if they do not hear from your office, then test results can be assumed to be normal. Every result, whether following discharge from the hospital, or following an office visit, must be received, reviewed and discussed with the patient.
The process must be documented. If a phone is no longer in service, and an email address is not available, then a certified letter should be sent as a final measure to attempt communication and follow-up.
If all of the above aspects of risk avoidance are addressed, it can all be for naught if the documentation does not reflect what happened during and after the care of a patient that experiences a poor outcome. Even if evidence-base guidelines are followed, appropriate informed consent is provided, and rapport has been developed, it can be of no benefit if the interaction was inaccurately or incompletely documented.
Further, there is one more type of documentation issue that is even more dangerous…
Altering the Medical Record
Documentation should be as contemporaneous as possible. But additions can be made. Corrections can be made as well, by adding an addendum, not by erasing entries or recreating a record, because it is fairly easy to show when a record has been changed. It is especially reckless to attempt to change a record after a lawsuit has been filed because then juries will assume guilt, no matter how valid a reason is given for the change.
Given the above considerations, what are the specific likely reasons that patients give for initiating a malpractice action? Here is a list from a recent survey done of plaintiffs:
- Poor communication between physician and patient
- Poor relationship with the practitioner
- Desire to get more information
- Feeling like patient was not informed about what happened
- To prevent harm from happening to someone else
Risk Management Programs
Most medical groups and hospital systems have specific programs designed to reduce the risk of liability. There may be a designated risk manager. The programs are designed to improve care, communication and documentation and reduce the size of awards if a case is lost.
Such programs will generally create and promote policies and procedures such as:
- Tracking and communicating test results to patients
- Guidelines for charting and regular audits of charts
- Medication ordering, refilling, handling and administration
- Informed consent for procedures and administration of medications
- Continuing education requirements
- Quality Improvement and Patient Safety Programs with tracking and reporting of quality and safety measures
- Reporting and investigating errors and root cause analysis when necessary
- Mandatory disclosure of errors
Most organizations will also adopt a Code of Behavior that helps to promote effective, timely and honest communication with patients and among staff members.
As you interview for a new position, try to get a sense of the culture of the organization and the attitudes of the other employees as it relates to risk management. And while working in your new position, it will be helpful if you can apply these risk management principles and encourage and support the above policies in order to avoid a time-consuming, emotionally draining lawsuit.