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Medical Malpractice: Where you are Most Vulnerable

Risk Management begins with a careful assessment of loss history in order to recognize and target recurring themes necessary for the development of patient safety systems and claims prevention activities. While it is true that the overall number of claims and suits has decreased over the last couple of years, the severity of payouts for individual claims and clear liability in many claims is increasing. Analysis of claim loss data provides information suggests important strategies to reduce preventable claims and improve the defensibility of claims when they do occur.

Aggregated data obtained from the Physician Insurers Association of America (PIAA) Data Sharing Reports, January 1, 1985 through December 31, 2004, detail information on over 200,000 claims, approximately 61,000 of which closed with indemnity payments totaling more than $11 billion. Physician owned or directed medical liability insurers from across the U.S. have reported these claims.

According to the PIAA, four medical conditions, garner the highest total payments:

• Brain damaged infant;
• Breast cancer;
• Pregnancy; and
• Acute myocardial infarction

Claims arising from these four conditions alone account for over $1.6 billion or slightly more than 36% of total dollars paid for the top 40 reported conditions or procedures. Brain damaged infant is the most frequent condition resulting in an indemnity payment. 2,000 claims were paid for a total indemnity of $920,000,000, averaging $522,000 per claim. 2,000 breast cancer claims paid $347,000,000 with an average indemnity of $227,000. 1,000 pregnancy claims paid an average indemnity of $211,000 or a total of $208,000,000. 1,000 acute myocardial infarction claims paid $191,000,000 or an average of $207,000 per claim.

Diagnostic interview, evaluation, or consultation and prescription of medication are the procedures that most frequently give rise to claims, and, collectively represent 15% of all paid claims. Iatrogenic injury, defined as harm that has been done directly by a clinician such as burn, laceration or puncture during the course of a procedure, has a payment rate over 50%.

MICA loss data tracks closely with the PIAA data. MICA currently insures over 6,000 physicians practicing in a variety of clinical settings. Of these, approximately 1,000, or 1 in 6, are involved in litigation (an active lawsuit) at any given time. MICA loss data from 1999 through the end of 2004 filtered for closed claims that paid $50,000 or more noted the top six specialties experiencing the highest average of indemnity paid were: OB/GYN ($516,000); General Surgery ($428,000): Internal Medicine ($406,000); Family Practice ($385,000); Orthopedics ($330,000) and Radiology ($276,000).These six specialties account for 71% of paid claims.

However, there are specific patterns of allegations regardless of specialty, including failure to diagnose, improper performance or treatment, and medication errors. These allegations have been linked to inadequate technical skills, substandard clinical judgment, lack of or inadequate informed consent, poor communication, wrong surgical site and inadequate documentation.

Experienced as well as inexperienced physicians may fall prey to such hazards as: inappropriate delegation of care and treatment to less-experienced personnel; lack of “alert hovering” leading to delayed diagnosis of treatment complications; inadequate communication between team members and inexperience with a particular procedure or treatment plan.

Of particular concern are a growing number of claims in which post operative or treatment plan complications are not identified in a timely manner. Failure to recognize signs and symptoms arising from a consequence of an injury with subsequent delay in treatment is a frequent component of malpractice allegations. It is interesting and unfortunate that often the most common complications are overlooked.

Clinical judgment is another area of risk exposure for physicians. Many factors contribute to a lack of information necessary to support the physician’s clinical decisions about patient care. They include: an incomplete or inaccurate history, over-reliance on a referring physician’s diagnosis without independent assessment, failure to obtain consultation, misinterpretation of diagnostic studies, inadequate office systems to track test results, cognitive bias, inadequate supervision of personnel and inadequate knowledge.

There are a number of risk management strategies that can be effectively employed by all specialties to improve patient outcome and reduce liability exposure. Consider the following key areas and how you may incorporate these into your practice.

Physicians and surgeons should prepare themselves with high quality training to include technical simulation and supervision by an experienced physician for any new medical treatment, surgical or invasive procedure. A weekend didactic presentation with little hands-on experience does not constitute adequate preparation. In addition, physicians should attend continuing education programs related to their specialty in order to maintain current technical as well as clinical judgment skills. Consider procedural standardization and checklists.

Patient selection for a particular treatment plan or surgical procedure should be a priority focus. It is important to identify and document specific factors that place patients at high risk of a poor outcome. Engage patients in the decision to determine whether or not the potential benefits outweigh the risks.

The value of effective communication cannot be overstated. Quality communication is the basis of a good relationship with the patient. Rapport is established based on forthright and accurate communication. Such behaviors as smiling, eye contact, using plain language, demonstrating empathy and a friendly tone of voice enhance rapport. These behaviors project an attitude of caring. The physician-patient discussion should be held in a private, comfortable location such as the physician’s office with the patient, family and friends, if desired, on an “equal footing” not in an examination room with the undressed patient and without family present.

The physician’s skill and reputation contributes to the patient’s sense of confidence and a caring relationship. Strong communication and “people” skills can decrease the likelihood of a claim even with an adverse outcome. A patient’s or family’s reaction to an unexpected clinical outcome is often directed by their relationship with the physician or others on the healthcare team.

Patients need to feel that their physician really cares about their well being. If the physician appears uncaring, unkind or too rushed to communicate effectively, the patient may seek guidance from an attorney when things don’t go as expected. Inadequate physician-patient communication can trigger a malpractice claim even when the medical or surgical treatment meets the standard of care.

Some common complaints about communication with physicians include:

• Not listening or paying attention to what the patient has to say;
• Not evaluating patients promptly;
• Not returning phone calls;
• Unable to personally speak with the physician about treatment or postoperative concerns;
• Rude and uncaring office staff;
• Inadequate discussion of alternatives to surgery and risks of complications:
• Failure to establish realistic patient expectations regarding the proposed plan of care.

Ineffective communication can lead to a vicious cycle of disappointment, anger, frustration, reactive hostility, defensiveness and deepening anger culminating in a dysfunctional physician-patient relationship. Careful attention to patient’s needs for caring, compassionate communication will enhance your patient’s perspective of your practice and reduce your chance of a claim or suit.