++
++
Medical malpractice is a serious concern for many physicians and a topic that often prompts intense debate. In this chapter, we review the elements of medical malpractice, as well as data about the frequency of both negligent medical care and actual claims of medical malpractice. We will also review how well the malpractice system achieves its purpose of deterring negligent medical care and compensating patients who are harmed by such negligence. We also discuss malpractice issues that are of particular concern to hospitalists, and what can be done to reduce the risk of being the subject of a medical malpractice claim.
+++
THE ELEMENTS OF MEDICAL MALPRACTICE
++
Medical malpractice is a form of negligence that applies to health care providers including doctors, nurses, and institutional medical care providers like hospitals. At the core of negligence-based liability is the notion that individuals committing unintentional but reasonably avoidable acts that cause injury should be required to compensate the victims of those acts. To determine whether negligence is present in a given situation, courts require plaintiffs to prove four elements through a preponderance of the evidence: duty, breach, causation, and harm.
++
PRACTICE POINT
To determine whether negligence is present in a given situation, courts require plaintiffs to prove four elements through a preponderance of the evidence: duty, breach, causation, and harm.
In the hospital setting, physicians have a duty to provide care with the same skill and diligence as a reasonably competent physician in the same specialty or field of practice would under similar circumstances.
The question of whether a physician breached the duty of care, then, often hinges on competing testimony provided by expert witnesses as to the applicable standard of care and whether the conduct in question failed to meet that standard.
To establish legal causation, the plaintiff must show that the breach was both the “cause in fact” and the “proximate cause” of the injury.
++
The duty of care in negligence claims is a hypothetical standard by which the court judges the conduct of the defendant to determine whether he or she had an obligation to act differently. In the hospital setting, physicians have a duty to provide care with the same skill and diligence as a reasonably competent physician in the same specialty or field of practice would under similar circumstances. Failure to meet this standard constitutes a breach of the physician’s duty of care. In most cases, for this duty to exist, a physician-patient relationship must have been established.
++
In order to determine whether a physician has breached the duty of care, an expert witness must testify as to the applicable standard in court. In the majority of states, physicians are judged by a national standard of care that all physicians in the same specialty would be expected to follow. However, in a significant number of states, physicians are judged by what other physicians in the same specialty and in the same geographic area would have done in a particular situation. In either case, the relevant testimony must come from expert witnesses who have the education, training, or other credentials that would make them familiar with the applicable standard of care. The question of whether a physician breached the duty of care then, often hinges on competing testimony provided by expert witnesses as to the applicable standard of care and whether the conduct in question failed to meet that standard.
++
Even if a physician breaches this duty by failing to adhere to the standard of care, the plaintiff in a case cannot establish liability unless that breach is the actual cause of the injury. To establish legal causation, the plaintiff must show that the breach was both the “cause in fact” and the “proximate cause” of the injury. As a breach of the duty of care is the “cause in fact” of damages if the plaintiff can establish that the presence of the breach was the “deciding factor” in determining whether the damage would have occurred. Put differently, a breach of the duty of care would not be the “cause in fact” of harm if the harm would have occurred despite the negligent care of a physician. In addition to being the cause in fact of harm, a breach of the duty of care must also be the proximate cause in order to satisfy the causation element of negligence. To be the proximate cause of harm, the harm must be, by its nature, a foreseeable or direct consequence of a breach of the duty of care. Some courts require an additional or alternative finding that the breach was a “substantial factor” in causing the injury, especially when two or more parties may be responsible.
++
If the court or jury finds that a physician has breached a duty by failing to adhere to the applicable standard of care and that the breach is the cause in fact and proximate cause of a patient’s injury, then the physician will be liable for damages. The measure of such damages is often highly dependent on the facts and circumstances surrounding the particular incident. Generally, a claimant can recover compensatory damages for both economic and noneconomic harm. Economic damages include the specific costs associated with treating the injury, such as medical bills and drug expenses, as well as current and future loss of earnings. Economic damages also include the costs of living with the injury such as modifications to the home to accommodate a wheelchair. Noneconomic damages most often include pain and suffering (physical and emotional) from the injury. In addition, courts may order punitive damages for injuries that are the result of malicious conduct or a willful disregard of patient safety. However, such instances are rare.
++
Medical malpractice claims usually involve numerous medical personnel involved in every stage of the patient’s care. Malpractice plaintiffs cast a wide net when filing suit for a number of reasons. First, it is often cost prohibitive to file an individual suit against each defendant because of the increased costs of legal discovery. Second, because most states employ a comparative negligence standard (meaning that total damages are calculated and then allocated to defendants based on their percentage of contribution of fault), it is difficult to allocate damages among separate claims. It is also more likely that naming multiple defendants will help the plaintiff narrow down which of the defendants was actually at fault (if any). Third, joining multiple defendants in the same suit allows plaintiffs to use the defendants’ own knowledge and testimony to establish standards of care, cutting down on the costs of hiring independent expert witnesses. Finally, there may be jurisdictional rules that prohibit separate claims and require naming all the responsible parties in a single claim if a failure to do so would result in an unfair outcome or an increased burden on the judicial system.
+++
THE EPIDEMIOLOGY OF MEDICAL MALPRACTICE
++
Up until relatively recently, little data existed about liability environment for hospitalists specifically. However, data recently published by Schaffer et al, looked at claims rates for hospitalists, based on data from a medical liability insurer, covering physicians in the New England region. This study showed that the claims rate against hospitalists (0.52 claims per 100 physician coverage years [PCYs]) was significantly lower than that for nonhospitalist internal medicine physicians (1.91 claims per 100 PCYs), and emergency medicine physicians (3.50 claims per 100 PCYs). Among the claims filed against hospitalists, 32% resulted in payment, with a mean payment of $384,617. The severity of injury to the patient in the claims against hospitalists was high, with 50% of the claims involving the death of the patient.
++
Some studies have analyzed the epidemiology of medical injury in specific states. Examining more than 30,000 records of patients hospitalized in New York State in 1984, the Harvard Medical Practice Study is the largest study to assess the rate of medical malpractice injuries and claims. This study showed that adverse events occurred in 3.7% of hospitalizations; of these adverse events, 27.6% were determined to be due to negligence. In a further analysis of the Harvard Medical Practice Study by Localio et al, the overall rate of malpractice claims per discharge was 0.13%. In this study, the vast majority of adverse events did not result in a malpractice claim. Of the adverse events due to negligence that were identified, remarkably only about 2% resulted in malpractice claims. The estimated ratio of negligence to claims was 7.6 to 1.
++
Testing the generalizability of the results of the Harvard Medical Practice Study, a subsequent, methodologically similar study by Thomas et al, examined 15,000 hospital records from Utah and Colorado. In this study, which yielded comparable results to the Harvard Medical Practice Study, 2.9% of hospitalizations in each state involved adverse events. Of these adverse events, 32.6% were a result of negligence in Utah, and 27.4% were a result of negligence in Colorado. Additional analysis of these data by Studdert et al in 2000 showed that only about 3% of those patients who suffered a negligent injury filed a malpractice claim. Characteristics more common among patients who suffered negligence but did not file a malpractice claim include low income, uninsured, insured by Medicare or Medicaid, and age ≥75 years. Of those malpractice claims identified during the study period, 78% were made despite the absence of negligence and 56% were made despite the absence of an adverse event. The ratio of negligent adverse events to claims was 5.1 to 1 in Utah and 6.7 to 1 in Colorado.
++
The two main purposes of the medical malpractice system are to compensate patients who suffered injuries resulting from negligence, and to deter negligent behavior by imposing costs on physicians who practice negligently. These data call into question whether the medical malpractice system is achieving these objectives. Given the large number of adverse events due to negligence not leading to a malpractice claim, the medical malpractice system is not efficient at holding negligent physicians accountable, and many patients who have been injured as a result of malpractice are not receiving compensation. One implication of these data is that the rate of claims is a problematic metric to use in assessing quality of care, since most episodes of negligence do not lead to malpractice claims, and a significant number of malpractice claims are filed in the absence of negligence or injury.
++
A somewhat different picture emerges when the outcomes of claims are analyzed, rather than simply the filing of claims. Studdert et al in 2006 evaluated 1452 closed malpractice claims in which objective assessments were made by reviewers as to whether there were medical errors resulting in injury. Of those claims filed involving injuries, 63% were determined to be a result of error. In cases in which there was injury due to error, compensation was paid 73% of the time. In cases in which there were no errors, no compensation was paid 72% of the time. The authors of the study concluded that, although the malpractice system does a reasonable job of providing compensation only when there is injury as a result of a medical error, the process has significant shortcomings. Namely, cases take a long time to come to resolution (5 years, on average, from injury to disposition) and the monetary costs of litigating the claims are steep (54% of the compensation paid).
++
Thus the data show a very limited correlation between malpractice claims made and acts of actual malpractice. Based on the 2006 data from Studdert et al looking at the outcomes of claims, it appears that the majority of claims with merit result in compensation and the majority of meritless claims are denied compensation. However, the system of determining which claims have merit is protracted and expensive.
+++
AREAS OF MEDICAL MALPRACTICE OF SPECIAL CONCERN TO HOSPITALISTS
++
One analysis of 272 malpractice claims made against hospitalists found that the most common contributing factor underlying the cases was a problem with clinical judgment, such as failing to order an indicated diagnostic test or having too narrow a diagnostic focus. The second most common contributing factor was a breakdown in communication—either between the providers and the patient/family or among providers (Table 35-1).
++
++
Many of the areas of malpractice risk of specific concern to hospitalists relate to communication issues. The discontinuity between inpatient and outpatient care that is inherent to hospital medicine, as well as the multiple handoffs of patient care that can occur when hospitalists work shifts, both increase the risk of a communications breakdown that could result in injury due to negligence. Examples of areas of liability concern for hospitalists related to inadequate communication include failure to follow up on incidental findings (Case 35-1) and appropriately addressing test results that may be pending at the time of discharge.
++
CASE 35-1 FAILURE TO FOLLOW UP ON AN INCIDENTAL FINDING
A 62-year-old male with a significant smoking history presented to the emergency department (ED) in November 1999 after a fall resulting in a left shoulder injury. The ED physician took x-rays of the chest and left shoulder, read them as showing no fracture, and discharged the patient home. Four days later, the attending radiologist read the x-ray as showing a left lung nodule, and a report of the x-ray was sent to the ED physician and primary care physician (PCP). The radiologist did not call either the ED physician or the PCP. The patient saw his PCP twice in December 2000 for back and shoulder pain and was sent for physical therapy. The patient presented to the ED in August 2001 with chest and shoulder pain. A chest x-ray was obtained, which the ED attending read as normal, but the radiologist noted a large mass in the left lung. This information was not conveyed to the patient’s PCP. After another visit to his PCP in September 2001, the patient presented to the ED again in October 2001 with back and chest pain, and a chest x-ray showed a mass occupying the majority of his left lung. The patient died of metastatic disease soon thereafter. The patient’s children filed suit against the PCP, ED physician, and radiologist, and the suit was settled for more than $500,000.
Adapted from Wright J, McCormack P. Failure to act on incidental finding. CRICO Forum 2007;25:6-7.
++
The preceding case illustrates the liability pitfalls that can result from inadequate communication among the physician ordering a radiologic study (the ED physician), the physician interpreting the study (the radiologist), and the physician who is best suited to follow up on the abnormal results (the primary care physician). This case had features that are common in ED cases leading to malpractice claims, including the misreading of plain radiographs, the involvement of multiple individual failures, and process breakdowns.
+++
PENDING TESTS AND INCIDENTAL FINDINGS
++
Hospitalists frequently find themselves in the same position as the ED physician in the above case, ordering a study of which the final results may not come back until after the patient has been discharged. The same problem applies to laboratory tests. One study by Roy et al encompassing the hospitalist services at two academic medical centers found that 41% of patients had laboratory or radiology results pending at the time of discharge and in 9.4% of cases the results of these studies were considered potentially actionable. Seventy percent of the inpatient physicians and 45.8% of the outpatient physicians were unaware of these potentially actionable results.
++
The problem of pending test results at the time of discharge is best addressed at a systems level—for example, through a mechanism that automatically notifies the ordering provider of the final results of such tests. However, such systems are not widely in place and even when they are, physicians still often fail to follow up on clinically significant results. Consequently, physicians need to take responsibility for following up on the final results of the tests that they order.
++
Physicians may also be held responsible for responding to test results ordered by another physician when these results come back while that physician is on duty, as was held in Siggers v. Barlow (906 F.2d 241). Responding to these test results often means communicating with the patient’s PCP about what additional follow-up needs to occur, such as serial imaging for an incidentally discovered pulmonary nodule. Discharge summaries, while important, are generally not adequate as the only means of communicating important findings that need to be followed up by the PCP. Kripalani et al and Pantilat et al identified a number of potential deficiencies in the discharge summary as the sole means of communicating with the PCP. These deficiencies include the possibility that the discharge summary does not reach the correct PCP (occurring 25% of the time), failure to include tests pending at discharge (occurring 65% of the time), and the PCP not receiving the discharge summary prior to follow-up (occurring 67% of the time). Therefore, hospitalists should contact PCPs directly regarding important test results or other matters that need to be followed up, by phone and/or letter, and this communication should be documented in the patient’s chart.
+++
COORDINATION OF CONSULTANT CARE
++
Another potential area of malpractice liability is the use and coordination of consultants. Hospitalists list active coordination of consulting specialists as one of the benefits they bring to patient care. However, with this responsibility for coordination of specialists, and in their role of the attending physician of record for the patient, hospitalists are at risk of incurring malpractice liability based on the actions of the consulting specialists (see Case 35-2).
++
CASE 35-2 DOMBY v. MORITZ (2008 CAL. APP. UNPUB. LEXIS 1856)
A 67-year-old female with a history of hypertension checked her own blood pressure, found that it was elevated, and contacted her PCP. As instructed by her PCP, the patient took an extra dose of atenolol, after which she had an episode of syncope. She presented to the hospital, where she was bradycardic and so the ED physician gave the patient atropine and glucagon to reverse the effects of the atenolol. A partner of the patient’s cardiologist was contacted and advised to put an external pacemaker on the patient, but the cardiologist did not see the patient. The patient was admitted to the ICU by a hospitalist. In anticipation that an internal pacemaker might be needed, the hospitalist reversed the patient’s warfarin with fresh frozen plasma. The ICU nurses called the cardiologist to report that the patient was bradycardic and feeling unwell. The cardiologist never placed an internal pacemaker. The hospitalist was next contacted by the ICU nurses once the patient was in cardiac arrest. The patient’s family filed suit against both the cardiologist and the hospitalist. The court ultimately found in favor of the hospitalist.
Domby v. Moritz (2008 Cal. App. Unpub. LEXIS 1856) illustrates this risk. In filing suit against both the cardiologist and the hospitalist, the family of the patient asserted that the hospitalist should have ensured that the cardiologist physically came in to evaluate the patient. Although the court ultimately found in favor of the hospitalist, this case shows that hospitalists have to take an active role in discussing the treatment plan with consultants and in clearly delineating who has responsibility for which aspects of the patient’s care. It may be legally hazardous to consider a clinical decision “not my call” and exclusively within the purview of a specialist, because the hospitalist, as the attending physician of record, may face litigation based on the decisions made by the consulting specialists.
+++
RISK FACTORS FOR MEDICAL MALPRACTICE CLAIMS AND STRATEGIES TO REDUCE THIS RISK
++
In considering ways to reduce the risk of facing a medical malpractice claim, a key question to ask is why patients decide to file claims, given that the vast majority of patients who are injured due to medical errors do not initiate a malpractice action. One study, by Beckman et al examined 45 plaintiff depositions in medical malpractice cases and found that in 71% of cases there were significant relationship issues between the plaintiff and the defendant physician. The most common issue was the feeling by the patient of having been deserted by the physician. Examples include abandonment, and the physician being unavailable and sending associates such as residents in the place of the attending physician. Other relationship issues that were present in the examined depositions included: devaluing the patient (such as by discounting the patients’ illness or pain); delivering information poorly (including failure to explain what was occurring); and failing to understand the patient’s or family’s perspective (such as by not asking for the patients’ opinion).
++
The behavior of consulting specialists who are brought in after an adverse event has occurred may also influence whether a malpractice claim is filed. In 54.8% of cases, health care professionals raised questions about the care the patient had received, and in 70.6% of these cases, the health care professional who cast doubt on the quality of the care that had been provided by the defendant physician was a consultant who saw the patient after the adverse event. In a couple of cases, it was an acquaintance—who happened to be a health care professional but was not directly involved in the case—who suggested that the care received was substandard. Therefore, consultants seeing a patient after an adverse event need to be mindful that even an offhand remark on the care the patient has received may affect whether the patient pursues a malpractice claim.
++
These data suggest specific measures that may be taken to reduce the risk of a malpractice claim being filed. It is important to avoid those physician behaviors, such as creating conditions in which the patient may feel abandoned and not fully acknowledging the patient’s concerns or discomfort. Given the possibility that having associates such as residents or physician assistants see the patient runs the risk of the patient feeling abandoned, the attending physician should explain the expected involvement of associates up front. It may also be helpful to frame the care to the patient as being provided by a team, so the patient does not feel connected only to the attending physician. It is also important to ensure that patient expectations about the outcome of a procedure or treatment are realistic. The informed consent process is an opportune occasion to address the patient’s expectations.
++
Strong communication skills are also important. Supporting the benefit of good communication skills in reducing litigation, another study by Lester et al found that physicians, who exhibited “positive communication behaviors” such as making eye contact, acknowledging what the patient says, and spending more time with the patient, elicited reduced litigious feelings in observers. Hickson et al in 1994 showed that the patients of obstetricians with a high frequency of malpractice claims complained about these physicians’ communication skills, including these physicians not listening and not providing information. The rate of these complaints about poor communication was significantly higher for physicians with a history of a high frequency of medical malpractice claims than for physicians with a better claims record.
++
On a systems level, it may be possible to identify physicians within an organization who are at increased risk of a malpractice claim. Physicians with an increased number of patient complaints have more risk management episodes, defined as both malpractice claims that are filed and incidents reported by staff members to the risk management department. One study by Hickson et al from 2002 retrospectively examined a cohort of 645 physicians, looking for an association between the number of unsolicited patient complaints and the number of risk management episodes. A small number of physicians generated a markedly disproportionate number of patient complaints, with 9% of the physicians garnering more than 50% of the complaints. There was a significant positive correlation between the number of complaints received and both the total number of risk management episodes and the number of lawsuits.
++
Similarly, another study by Stelfox et al found that scores from a commonly used hospital satisfaction survey were significantly associated with risk management episodes, which included both malpractice lawsuits and incidents identified by risk management as having the potential to result in a malpractice claim. The survey instrument included five questions asking patients to rank their inpatient attending physician in different areas, using a scale of 1 to 5 for each question, with a score of 5 denoting the highest rating. Each 1-point decrement on the survey correlated with a 5% increase in the rate of risk management episodes. The specific questions on the survey that had the strongest correlation with risk management episodes were those regarding the time the physician spent with the patient and the concern the physician showed for the patient’s qualms. No significant correlation was found between the responses to questions on how satisfied the patient was with the physician’s skill and the rate of risk management episodes. There was also a positive correlation between the rate of patient complaints and the rate of risk management episodes. Notably, a breakdown of complaints against physicians again suggested the crucial importance of good communication with the patient. Of the 483 complaints analyzed in the study, 75% of them concerned communication issues and 25% of them related to patient care matters. These two studies by Hickson et al and Stelfox et al show that by using data that are commonly collected by hospitals—number of complaints and the results of patient satisfaction surveys—it may be possible to identify physicians who are at elevated risk of being named in a malpractice action.
++
CASE 35-3 COMPLAINTS AGAINST DOCTOR A
Dr A is a physician who joined the hospitalist service 4 years ago. During his time as a member of the hospitalist group, his scores on patient satisfaction surveys have been in the lowest decile of physicians at the hospital. As the director of the hospitalist service, you receive a call from a manager in the patient relations department saying that Dr A has been the subject of two complaints within the past 6 months. The patient relations manager says both complaints are very similar, and the complaints describe Dr A as being unwilling to fully discuss his patients’ medical conditions. The complaints further state that it seems like Dr A is always trying to get out of the patients’ rooms as quickly as possible and that he appears annoyed when the patients ask questions. One of the patients who complained wrote: “Dr A just did not seem like he really cared about me or my many medical problems. I would not want him to take care of me again or any members of my family.”
When you, as the director of the hospitalist service, meet with Dr A about these issues, he seems irritated and explains that every physician has at least a few disgruntled patients and that is part of practicing medicine. Dr A says he wants to make sure he sees all his patients and completes his billing forms promptly, and so he cannot be expected to linger in patients’ rooms. Dr A further explains that if a patient asks a question that he deems important, then he makes sure to answer that question fully.
++
If it is possible to recognize physicians at increased risk of malpractice suits, such as Dr A in the preceding case, then potentially actions may be taken to mitigate this risk. For example, physicians who receive a high number of complaints or with particularly low satisfaction ratings could undergo educational programs aimed at enhancing their patient-communication skills. One approach, advocated by Moore et al consists of a tiered intervention system. Initially, a physician who has been identified as being at high risk is approached by a peer to discuss the issue. If that is not effective in improving the physician’s complaint rate, then a plan for improvement is developed in conjunction with someone in authority, such as the department chair. If these efforts are still unsuccessful, meetings can be held with senior officials in hospital management, with the possibility of discipline or dismissal. Components of the plan to reduce the complaint rate (and so potentially also the risk of facing a malpractice action) can include enhancements to the management of the physician’s practice, continuing medical education on the physician-patient relationship, and/or mental health evaluation.
+++
DISCLOSING ERRORS TO PATIENTS
++
Physicians understandably are often conflicted about whether to disclose medical errors. Historically, physicians have been hesitant to disclose mistakes for fear of inviting litigation over an error that may otherwise have gone unnoticed by the patient, and in order to avoid possible censure over having made a mistake. An opposing view holds that disclosing errors will help avoid the strain in the patient-physician relationship and the breakdown in communication that may occur after a mistake, and so may decrease the risk of litigation, or at least lead to smaller awards.
++
The empirical evidence is inadequate to clearly answer what effect disclosure of medical errors will have on the likelihood of malpractice litigation. Policy changes regarding notification of patients about medical errors implemented by some medical centers do provide examples of the possible consequences of disclosure policies. In 1987, the Lexington, Kentucky, Veterans Affairs Medical Center (VAMC), in reaction to two large malpractice payouts, decided to put into place a policy of proactively identifying and investigating cases of possible medical negligence. If medical negligence was found, the representatives from the Lexington VAMC would have a face-to-face meeting with the patient or next of kin. At this meeting, hospital representatives would explain the situation, answer any questions, and offer restitution—the amount of which was based on a determination of actual loss. Claims assistance was also offered. Reviewing 15 years of experience with this full disclosure policy at the Lexington VAMC, Kraman et al concluded that this approach appeared to reduce the amount of overall malpractice payouts. Although the Lexington VAMC had an increased number of payouts, the average amount of these payouts was relatively small, at $14,500. This compares to a mean pretrial settlement amount of $98,000 for all medical centers in the VA system. Despite the Lexington VAMC being in the top quarter of all VAMCs in the number of tort claims filed, it was in the bottom quarter of all VAMCs in terms of total malpractice payouts. This VAMC experience has major limitations regarding its generalizability, because physicians in VAMCs do not pay individual malpractice premiums and, as federal government entities, VAMCs are not subject to punitive damages.
++
Several hospital systems and liability insurers have instituted programs that couple disclosure of unanticipated care outcomes with rapid offers of compensation in appropriate cases. The most widely published program is the one implemented by the University of Michigan Health System (UMHS) in 2002. In this program, unanticipated outcomes are promptly disclosed and investigated. The three principles the UMHS cites as defining their risk management approach are: (1) rapid offers of compensation when “unreasonable” care was the cause of the injury; (2) forceful defense of claims in which the care provided was reasonable; and (3) use of knowledge gained from the incidents to prevent future injuries and claims. With this policy in effect, the UMHS saw a decrease in monthly liability costs, in the rates of new claims, and in the time to resolution of claims. As with the VAMC program, questions exist about the generalizability of the UMHS program, especially since UMHS as an institution could assume legal responsibility when the outcome was due to systems-level problem. As a result of how tort laws are structured in some states, claims in those states are usually filed against individual physicians, rather than institutions, which might make some physicians hesitant to accept settlements, with the accompanying requirement of reporting the payment to the National Practitioner Data Bank.
++
Despite the encouraging reports from organizations implementing disclosure-and-offer programs, some uncertainty remains about disclosure as a risk management strategy, particularly when disclosures are not made in the context of compensation programs. A major legal concern about disclosure in the absence of some mechanism for awarding rapid and modest compensation is that, because most medical errors do not result in malpractice claims, aggressive disclosure of medical errors may prompt claims that would otherwise not have been filed. A theoretical modeling of this issue by Studdert et al in 2007 concluded that routine disclosure would have a 94% likelihood of increasing malpractice compensation costs. Regulatory protections that exist, such as state “apology laws” designed to allow physicians to apologize without having it used against them, may provide only very limited protection. These laws may prevent expressions of regret from being used against the physician, but not ancillary information surrounding that expression of regret, such as information about causation or fault.
++
Ultimately, one may expect to see progressively wider implementation of policies encouraging or even requiring error disclosure. The basis for this expectation is independent of the effect of error disclosure policies on malpractice costs, but is instead based on regulatory, public policy, and ethical considerations. Some states and accreditation organizations, such as The Joint Commission, are increasingly implementing standards requiring error disclosure. Error disclosure, with the accompanying ability to gather data on what types of mistakes are recurring, also supports the public policy goal of improving systems so as to reduce future errors.
++
Disclosure of medical errors is generally considered the ethically appropriate course. Honesty is necessary to maintain a strong physician-patient relationship, and informed consent requires that patients be fully aware of the circumstances surrounding their treatment so they can decide about further care. Demonstrating this trend toward increasing disclosure of medical errors, a consensus statement from the Harvard-affiliated hospitals in 2006 expressed a commitment to full disclosure of medical errors in order “to change our systems to prevent future error” and because “it is the right thing to do.”
++
PRACTICE POINT
Disclosure of medical errors is generally considered the ethically appropriate course. Honesty is necessary to maintain a strong physician-patient relationship, and informed consent requires that patients be fully aware of the circumstances surrounding their treatment so they can decide about further care.
++
Defensive medicine, as defined by a 1994 Office of Technology Assessment report, is “when doctors order tests, procedures, or visits, or avoid high-risk patients or procedures, primarily (but not necessarily solely) to reduce their exposure to malpractice liability.” Defensive medicine may be categorized by whether it is positive, such as ordering of extra tests to try to forestall a malpractice claim, or negative, such as avoiding patients perceived as representing an increased malpractice risk. Some authors prefer the term “assurance behavior” in place of positive defensive medicine, and “avoidance behavior” in place of negative defensive medicine, so as to avoid the suggestion of approval or disapproval about defensive medicine.
++
Particularly in environments of high-liability stress, defensive medicine appears to be very common. A 2005 study by Studdert et al surveyed physicians in litigation-prone specialties (emergency medicine, general surgery, orthopedic surgery, neurosurgery, obstetrics/gynecology, and radiology) in Pennsylvania, which had experienced rapidly increasing malpractice premiums. Of the physicians who responded to the survey, 93% had engaged in defensive medicine and 42% were limiting the scope of their practice because of fear of liability. The most common type of defensive medicine in the survey was ordering extra tests, which 59% of physicians reported doing. This was especially common among emergency physicians, 70% of whom reported ordering extra tests. Physicians concerned about whether their malpractice insurance coverage was adequate and those who felt their insurance premiums were particularly onerous were especially likely to engage in defensive medicine. Common negative defensive medicine practices included avoiding high-risk patients, reported by 39% of physicians, and avoiding high-risk procedures, reported by 32% of physicians. Positive and negative defensive medicine practices have differing implications for the health care system. Positive defensive medicine has the potential to increase costs while offering modest, if any, benefits to patients. In contrast, negative defensive medicine may limit patients’ access to certain medical services viewed as high risk, such as obstetrics.
++
Not only is defensive medicine common, but it is also expensive. Estimates of the costs of defensive medicine vary and are fraught with methodological limitations. One estimate is that approximately 5% to 9% of health care spending can be labeled as defensive. A concern is that if defensive medical practice becomes common enough, it may become the standard of care, which could force all physicians to practice in a defensive manner.
++
Overall, there is no clear empirical evidence that defensive medicine affects patient outcomes. There are some theoretical arguments against the practice of defensive medicine. Patients who perceive that their physician is ordering a test or procedure for a defensive reason may react negatively to this and be more likely to file a claim in the event of an adverse outcome. Some forms of defensive medicine involve physical risk to the patient—for example, ordering unnecessary biopsies and other invasive procedures. Particularly for these cases, services ordered primarily to serve the desire of the physician for minimizing risk and not the medical needs of the patient are ethically suspect. However, if fear of malpractice causes physicians to lower their tolerance for the possibility that a significant finding, such as a cancer, could be missed, then this effect is not necessarily deleterious. Indeed, some tests ordered primarily or solely to benefit the physician (by reducing medicolegal risk) end up having clear benefit to the patient. In the aggregate, though, defensive medical practices are likely cost ineffective.
+++
ADDITIONAL STRATEGIES TO REDUCE THE RISK OF A MALPRACTICE CLAIM
++
A number of different strategies can be employed to potentially reduce the risk of a malpractice action. As discussed above, good communication practices with patients and their families are crucially important. Feelings on the part of patients that the physician is unavailable or dismissive of the patients’ concerns may increase the risk of a malpractice claim. Delegating important communication tasks should be avoided. Residents and other trainees may not provide complete information to patients, may not convey information in a sensitive manner, and may not carefully document the communications they do have with patients.
++
A 2007 case decided by the Massachusetts Supreme Judicial Court highlighted the importance of informing patients about the potential side effects of their medications. The case, Coombes v. Florio (450 Mass. 182), concerned a 72-year-old patient on multiple medications (including oxycodone, tamsulosin, and oxazepam) who was driving and fatally struck a 10-year-old boy. The boy’s mother sued both the driver of the car and the driver’s physician, Dr Roland J. Florio. The Massachusetts court ruled that this was not a medical malpractice case, because the boy who was killed and his mother had no physician-patient relationship with Dr Florio. Nonetheless, the court held that Dr Florio could still be subject to a negligence claim, because he did have a duty to make the patient aware of the side effects of the medications the patient was taking so that the patient could make an informed decision about whether it was safe to drive. The court reasoned that if it was not safe for the patient to drive, then an accident, which might result in harm to parties other than the patient, was a foreseeable consequence. The court drew an analogy with a bar owner being found negligent when someone becomes inebriated at the bar and then drives and becomes involved in a fatal collision.
++
Inadequate communication among physicians, both between hospitalists, and between hospitalists and PCPs, is a significant liability concern for hospitalists. These communications should be standardized whenever possible. Handoffs of patient care between hospitalists should use a standardized form so that crucial information, such as diagnostic uncertainties and the status of communication with the PCP, is not overlooked. Although the discharge summary is not in and of itself adequate as the only means to communicate important information to a patient’s PCP, it can be designed to help make sure the PCP receives important information arising from the hospitalization. For instance, the discharge summary can have standardized sections dedicated to tests pending at the time of discharge and issues requiring outpatient follow-up. Having these sections in all discharge summaries ensures that the person preparing the discharge summary addresses these areas and also gets PCPs accustomed to looking for this information in the discharge summaries. Even with standardized discharge forms, important issues requiring outpatient follow-up should still be directly communicated to the PCP, so as to minimize the chance that these matters get overlooked.
++
Checklists have been found to reduce complications and mortality in the surgical setting, and the benefits of checklists also extend to the medical setting. Checklists in Hospital Medicine have the potential to reduce errors that could give rise to a malpractice claim, such as the failure to use appropriate deep vein thrombosis (DVT) prophylaxis in a patient who subsequently develops a pulmonary embolus while in the hospital, or leaving a central venous catheter in a patient who then develops a catheter-related bloodstream infection. Checklists could also improve efficiency, such as by making sure a patient who needs a physical therapy evaluation receives one promptly. To enhance the effectiveness of a checklist in Hospital Medicine, other members of the care team, such as the nurses, should be involved in ensuring the components of the checklist have been met, and are empowered to raise the issue when the components of the checklist have not been met.
++
Informal “curbside” consultations is a potentially legally perilous practice. Questions to consultants about a specific patient should generally be made as a formal request for consultation, not an informal “curbside” consultation. When consultants provide “curbside” consultations, they are usually not seeing the patient and evaluating all the data, so their assessment may be based on incomplete information. Moreover, a “curbside” consultation does not result in a note from the consultant in the chart, so the basis for the consultant’s recommendations will not be part of the medical record. A consultant who formally sees the patient will also usually be able to continue to follow the patient as an outpatient, which can help with the transition of care to the outpatient setting and provide a resource to whom the patient’s PCP can turn for assistance. If the name of a consultant who provides a “curbside” consultation is placed in the chart, then if a malpractice claim arises, it is likely that the consultant will be named in the claim. Table 35-2 summarizes strategies designed to reduce the risk of a malpractice claim.
++
+++
COPING WITH A MALPRACTICE CLAIM
++
Being the subject of a malpractice claim is usually intensely stressful. Common reactions to being sued include anger, depressed mood, frustration, irritability, and insomnia. Samkoff and Gable have even compared physicians’ reaction to a lawsuit with the five Kübler-Ross stages of grief: denial, anger, bargaining, depression, and then acceptance. Physicians are at risk of personalizing the claim and considering it an attack on their competence and character. The process of adjudicating is commonly protracted, often taking 4 to 5 years from the time of the adverse event to resolution of the case, thereby adding to the stress of a malpractice claim.
++
Approaches that may help physicians cope with the stress of a malpractice claim include discussing the stress with trusted friends, family, and colleagues. Discussions of specific details of the case should occur only in settings where privilege applies, such as with one’s lawyer or with a therapist with whom one has a formal patient-clinician relationship. Open discussion with family about the accompanying stress may be especially helpful, since the stress of the malpractice claim is likely to affect family members. Colleagues should express support when they know an associate is facing a malpractice action. Some professional societies also offer specific counseling resources or referrals for physicians trying to deal with the stress of a malpractice action.
++
One of the reasons malpractice claims can be so stressful for physicians is that so much of their own identity revolves around their profession. Realizing this, the physician should attempt to depersonalize the claim. Most claimants have as their primary objective obtaining compensation, not vilifying the physician. Physicians dealing with a malpractice suit should use it as an occasion to assess whether they have appropriate balance between their professional lives and their leisure time. Spending time engaged in vocational pursuits, such as hobbies and time with friends, is important. Physicians should also have the lawyer representing them explain what the process of adjudicating the claim will entail, so that the process is demystified and surprises are minimized. The facts surrounding the case should be examined to see if there is a systems-level issue that can be addressed to help prevent future claims—for example, designing a system for reviewing incoming radiology studies if a radiographic finding was missed.
++
There are some specific pitfalls that must be avoided during the stress of malpractice litigation. Physicians facing a malpractice claim who do not have a formal PCP should obtain one, as a PCP can be helpful with medication for symptoms and referrals for counseling. Self-medication should be avoided. Insomnia is a common symptom arising from the stress of a malpractice claim, and physicians who feel medication is needed to treat insomnia should discuss this with their own physician, and should not self-prescribe or obtain medication from a colleague informally. One action that should never be taken is going back and altering any documents in an effort to assist one’s defense. Not only is this unethical and potentially criminal, but also by the time a physician is aware that a malpractice claim may be filed, the filing party almost certainly has copies of the medical records and related documents.
++
When a claim results in payment on behalf of an individual physician, there are reporting requirements. Information about this payment must be reported to the National Practitioner Data Bank (NPDB), which was established by the Health Care Quality Improvement Act of 1986. The Act was intended to improve the quality of medical care, in part by requiring the submission of malpractice payments to the NPDB, which can then be queried by health care institutions when making hiring decisions. Patients and individuals do not have access to reports of physician malpractice payments made to the NPDB, although physicians can request their own NPDB files. Some states, however, have web sites that allow patients to look up individual physicians and find out information about their malpractice histories.
++
Popular perceptions notwithstanding, the medical malpractice system appears to do a reasonable job of awarding compensation primarily in cases that actually involve an injury due to negligence. Nevertheless, the system is inefficient and expensive. In addition, most adverse events resulting from negligence never lead to claims or compensation, and meritless malpractice claims also remain a problem.
++
PRACTICE POINT
In seeking to avoid malpractice claims, physicians need to be conscientious about communicating with the patient, so that the patient does not feel abandoned or devalued. Although medical liability experience involving hospitalists specifically is limited, issues hospitalists need to be careful about include coordinating the actions of consulting specialists, following up on pending tests, and communicating with PCPs about issues that require outpatient follow-up.
++
Domby v. Moritz, 2008 Cal. App. Unpub. LEXIS 1856
++
Coombes v. Florio, 450 Mass. 182 (2007)
++
Siggers v. Barlow, 906 F.2d 241 (1990)
++
Beilke v. Coryell, 524 N.W.2d 607, 610 (N.D. 1994)
++
Hill v. Medlantic Health Care Group, 933 A.2d 314, 325 (D.C. App. 2007)
++
Kent v. Pioneer Valley Hospital, 930 P.2d 904, 906 (Ut. App. 1997)
++
Palandjian v. Foster, 842 N.E.2d 916, 921-22 (Mass. 2006)
++
Polozie v. United States, 835 F. Supp. 68, 72-74 (D. Conn. 1993)
++
Health Care Quality Improvement Act of 1986, Pub. L. No. 99-660, 100 Stat. 3743
++
(codified as amended in scattered sections of 42 U.S.C.).
++
The author would like to thank Prof. Michelle M. Mello for her review of the manuscript and Nicholas Beshara, JD, MPH for his contribution to the previous edition’s chapter.
+
Brennan
TA, Leape
LL, Laird
NM,
et al. Incidence of adverse events and negligence in hospitalized patients. Results of the Harvard Medical Practice Study I.
N Engl J Med. 1991;324:370–376.
[PubMed: 1987460]
+
Schaffer
AC, Puopolo
AL, Raman
S,
et al. Liability impact of the hospitalist model of care.
J Hosp Med. 2014;9(12):750–755.
[PubMed: 25331989]
+
Stelfox
HT, Gandhi
TK, Orav
EJ,
et al. The relation of patient satisfaction with complaints against physicians and malpractice lawsuits.
Am J Med. 2005;118:1126–1133.
[PubMed: 16194644]
+
Studdert
DM, Mello
MM, Brennan
TA. Medical malpractice.
N Engl J Med. 2004;350(3):283–292.
[PubMed: 14724310]
+
Studdert
DM, Mello
MM, Gawande
AA,
et al. Claims, errors, and compensation payments in medical malpractice litigation.
N Engl J Med. 2006;354:2024–2033.
[PubMed: 16687715]