COVER STORY

Malpractice: Don't wait for a lawsuit to strike

Indemnity awards are up, especially in primary care cases. Here are the latest statistics—and what you can do to keep safe.

By Gail Garfinkel Weiss
Senior Editor

Ever wonder why you didn't specialize in, say, dermatology instead of primary care? If not, you may start after you consider the latest malpractice data.

Internists ranked second and general and family practitioners third in the number of malpractice claims reported from 1985 through 2000, according to the most recent update of Physician Insurers Association of America's Data Sharing Project, which contains malpractice information on 28 specialties. Obstetric and gynecologic surgeons had the dubious honor of claiming first place. Dermatologists, on the other hand, are way down the PIAA list.

Basic things get doctors in trouble. Of the thousands of claims against primary care physicians that were resolved from Jan. 1, 1985, through Dec. 31, 2000, more than 15,000 had their genesis in a diagnostic interview, evaluation, or consultation. About 6,000 more involved prescription medications (see "Top 10 procedures primary care docs are sued for").

Notably, the mishaps most likely to generate malpractice claims have changed little over the past 15 years. A decade ago, PIAA, a Rockville, MD, trade association of doctor-owned and -operated professional liability carriers, identified improper performance, diagnostic error, failure to monitor the case, performing a procedure not indicated, and medication errors as the most prominent "medical misadventures" for all specialties combined. (A medical misadventure is defined as a principal departure from accepted practice.) The list in its latest report is substantially the same.

What has changed, however, is the average indemnity award. That has gone up every year from 1995 through 2000, at a rate exceeding inflation. Primary care doctors have been particularly hard hit: Average claim payments jumped from $150,011 in 1995 to $270,460 in 2000.

Thomas C. Phelps Jr., vice president of loss prevention services with Medical Assurance in Birmingham, AL, attributes this trend at least in part to the fact that primary care physicians now offer a wider range of services, including outpatient treatment of illnesses like pneumonia and high-tech diagnostic procedures like endoscopy.

"Primary care physicians want to offer these services because they're convenient for patients, they offer the doctors a marketing advantage, and they increase doctors' revenue stream," says Phelps. "And with appropriate training, they can do these procedures. But the procedures create risks."

We asked Phelps and other risk managers how you can minimize your chances of being hit with a malpractice lightening bolt. First, though, some information on what you're most likely to get sued for, based on the 1985-2000 data.

Spotting primary care snares: Where malpractice dangers lurk

PIAA lists malpractice risk by medical misadventure, condition, and procedure. Among primary care physicians (defined by PIAA as internists, general and family practitioners, pediatricians, and gynecologists), the misadventure cited most often is diagnostic error. Next, paradoxically, is "no medical misadventure"—meaning that a doctor has been named in a suit but there is no allegation of inappropriate medical conduct on his part.

"He might be the partner of a doctor who has been sued," says Lori Bartholomew, PIAA's director of loss prevention and research. "Or if something goes awry when, say, a nurse gives a vaccination or injection, the doctor might be named in the suit."

What are your chances of having to pay a claim? That varies. Only about 5 percent of "no medical misadventure" claims resulted in payment, Bartholomew notes. But that can't be said of the other top-10 misadventures: Doctors wound up paying in some 36 to 46 percent of those cases (see "Top 10 reasons for malpractice claims against primary care physicians").

The patient conditions that most often resulted in claims were—in order of total claims—myocardial infarction, bronchus and lung cancer, breast cancer, colon and rectal cancer, and diabetes. For cases closed in 2000 alone, though, the list changed radically; myocardial infarction still topped it, but chest pain (not further defined), symptoms involving the abdomen and pelvis, obesity, and back disorders ("Top 10 medical conditions primary care docs are sued for") followed. Obesity claims, Bartholomew notes, stem from improper management of an overweight patient, such as recommending a diet or weight-loss medication that might not be appropriate if the patient has other health problems due to obesity.

No such variation exists among the most culpable "procedures," however. From 1985 through 2000, those that resulted in the most claims were the diagnostic interview, evaluation, or consultation; prescription of medication; general physical examination; failure to render care; and injections and vaccinations. For 2000 alone, the list differs only marginally.

Tracking and follow-up: Don't neglect either

What to do? For starters, risk managers unanimously recommend that you establish tracking and follow-up programs. "Without adequate reminder systems, people fall through the cracks and diagnoses are missed," says Richert E. Quinn Jr., a general surgeon and vice president of risk management at Copic Insurance in Englewood, CO. For instance, you need systems to ensure that:

•Labs and X-rays you've ordered are performed.
•The physician reviews reports before they go into the chart.
•Patients are told to come in for follow-up visits.

"You can use a computerized system or a tin box with 3x5 cards," Quinn says. "Or you can flag certain dates on your scheduling sheet."

The type of system isn't as important as consistency of use, says Tom Phelps. "The key is to make sure the people in the practice are committed to whatever system is put in place. And for the system to be viable, it must be tailored to how the physician manages his patients."

Patients, Phelps affirms, generally believe that no news is good news. So it's not uncommon for a patient to appear in a physician's office months after undergoing a test, saying, "I never heard from you, so I assumed everything was okay. But I still have symptoms."

Phelps cites a case involving a woman in her late 20s who was sent for a mammogram by her ob/gyn after complaining of tenderness in her right breast. The patient had the test, heard nothing, and assumed that everything was normal. She began experiencing other symptoms, however, and when she returned to her physician several months later the mammogram report—found in her chart—identified a suspicious lesion and suggested further evaluation. There was no indication in the chart that the report had been seen by the physician or relayed to the patient.

"The ensuing lawsuit was settled out of court; it was deemed too difficult to defend given the patient's age and poor prognosis," Phelps says. "That case is a perfect example of a practice that didn't have the appropriate infrastructure. I tell doctors that juries appreciate and understand that doctors have noncompliant patients. What juries struggle to understand—and to forgive—is a perceived lack of effort on the physician's part to manage information on a timely basis and follow up with the patient. A practice that doesn't have a suitable system can get itself into an indefensible position."

Putting it in writing: The importance of documentation

Maureen Mondor, vice president of risk management with ProMutual Group, based in Boston, remembers a case in which a physician told a patient over the phone that he probably had a hiatal hernia, but if his symptoms persisted he should go to the emergency department. The patient had, in fact, suffered a heart attack, but a subsequent lawsuit was resolved in the doctor's favor.

"He had done a good job of documenting his advice," says Mondor. "Generally, doctors are held to a reasonable standard of care; they're not expected to be perfect."

You are expected to keep careful, complete records, however. "About 60 percent of the paid claims that our company sees involve some failure in documentation," says Richert Quinn. "The problem might involve the record's content or legibility, or whether the practice keeps track of things like patients' medication history and allergies."

The medical record, Tom Phelps says, can provide the most striking evidence that you've done right by your patient. "We need to use the medical record to show that the doctor we're defending got the appropriate history, ordered the appropriate tests, and told the patient that he or she needed to be seen again," he explains. "The record should also indicate that the doctor instructed the patient about any changes in symptoms that might suggest a more serious problem."

Keeping in touch: Communicate with patients

"Malpractice suits follow a common progression," says Mark Gorney, a plastic surgeon and chairman of the risk management committee at The Doctors Co., a malpractice insurer in Napa, CA. "First the patient experiences surprise, then disappointment, and finally anger. Most physicians who have a disappointed patient, a treatment failure, or a complication naturally tend to avoid the patient. That's a big mistake. Perceived arrogance or disinterest on the doctor's part is a key reason a disappointed patient turns angry and visits a lawyer."

If risk managers have a mantra, it's "communicate, communicate, communicate"—particularly with an anxious, sick patient. Maureen Mondor puts it bluntly: "Physicians who are cavalier, cold, or who don't listen to patients' needs or concerns are the ones who'll get into difficulty, even if they're the best doctors in the world."

Mondor also stresses the power of a sincere apology. "If something goes wrong," she notes, "say something like, 'I'm sorry for what you're going through,' or 'I'm sorry for what happened.' So many times, patients just want empathy, and to know that what happened to them won't happen to someone else."

Of course, you must establish good doctor-patient—and doctor-doctor—communication channels before an untoward event occurs. PIAA's Lori Bartholomew points out, "In many malpractice claims, either the doctor failed to tell the patient something, the doctor's instructions were misunderstood, or the doctor failed to pass along important information to a referral physician."

Mondor notes that because the medical profession is so stratified, the left hand (say, a primary care physician) often doesn't know what the right hand (a surgeon, for instance) is doing. "A patient who undergoes hip replacement surgery might be put on Coumadin," Mondor says. "This can be disastrous if the surgeon hasn't told the primary care physician to monitor the patient's blood levels, or if no one has instructed the patient to be alert for signs of bleeding."

Medication errors: What patients don't know can hurt them

Even a patient who asks questions, keeps all his appointments, and has WebMD bookmarked on his computer doesn't necessarily know that Ginkgo biloba can cause bleeding and shouldn't be taken with aspirin. So before you advise a patient to take two aspirin, you'd better find out what else is in his medicine cabinet.

"Doctors should tell clinical staff that as part of the intake process, they need to ask what medications patients are taking, including over-the-counter and herbal remedies, and what medications they've had problems with," says Tom Phelps. "I recommend asking patients to bring all their medications to the office so the staff can actually see what they're taking."

Indeed, with the huge increase in the number of drugs available, adverse drug reactions and interactions have become a major malpractice snare. "The most recent PDR lists more than 4,000 drugs," says Richert Quinn. "Many of these are look-alike, sound-alike medications, so there's a lot of potential for error." Phelps advises physicians to meet with pharmaceutical representatives so they have a clear idea how to use new medications.

And don't forget: Handwriting counts. "You need to write scripts clearly and avoid abbreviations that can be misunderstood," says Quinn. "Make sure, too, that decimal points are visible and in the right place."

Quinn also emphasizes that refilling prescriptions in perpetuity without seeing the patient invites trouble. He offers this cautionary tale: "I had a case where the doctor refilled medication by telephone for 16 to 18 months for a patient who complained of abdominal distress. As it turned out, the patient had stomach cancer. No diagnostic workup was done until it was too late."

Who gets sued and how it winds up

Top 10 reasons for malpractice claims
against primary care physicians

Top 10 medical conditions
primary care docs are sued for

Top 10 procedures primary care
docs are sued for

Diagnostic radiologic procedures excluding CT scan and contrast material

 

Gail Weiss. Malpractice: Don't wait for a lawsuit to strike. Medical Economics 2002;6:82.