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Six ways physicians can prevent patient injury and avoid lawsuits


Thought leaders identify risks that many physicians overlook and offer steps to protect from liability


When a patient or family sues, the emotional wound takes a toll on the physician, undermining confidence and trust. “We doctors tend to be really hard on ourselves,” says Richard G. Roberts, MD, JD, past president of the American Academy of Family Physicians and a professor at the University of Wisconsin’s primary care clinic in Belleville, Wisconsin. “We see every wart in the process of care.”

But risks surround physicians every day, from alleged diagnostic errors to inadequate follow-up. By recognizing what poses the greatest risk, physicians can create and implement formal policies and procedures to protect their practices. 

“Risk management,” Roberts explains, “is a series of strategies designed to reduce the likelihood of injury to the patient, and when injury occurs, to reduce the likelihood that a suit results.”

PIAA-formerly known as Physician Insurers Association of America-reports that 70% of the claims closed within its Data Sharing Project (DSP) database have no indemnity payment. Among the 30% that close with an indemnity payment, the majority of risk surrounds claims alleging diagnostic errors, says P. Divya Parikh, director of research and loss management in PIAA’s Rockville, Maryland, headquarters.

The association’s database contains nearly 290,000 medical professional liability claims and lawsuits closed since 1985. PIAA’s most recent report is based on 2013 comparative data on claims closed between 2003 and 2012.

“Obstetrics still is a top medical specialty that has claims reported, but others include internal medicine, orthopedic surgery and general surgery,” Parikh says. “Within the DSP, the majority of claims reported are by the patients themselves, except in the pediatric cases and in cases of patient death or long-term injury.”

To identify the most overlooked risks to physicians, Medical Economics asked several thought leaders to share their insight into strategies for protecting office-based practices. Here, we present six common risks that you can mitigate.

1. Faulty communication

Honest and open communication is the best approach; that’s why it’s often referred to as “disclosure.” When patients feel that healthcare providers genuinely care and have their best interests in mind, they tend to be more forgiving of errors, says Graham Billingham, MD, FACEP, FAAEM, chief medical officer of The Medical Protective Company, a national professional liability insurer based in Fort Wayne, Indiana.

The number of medical malpractice claims has declined significantly in the last decade. Billingham suspects the decline is due at least in part to physicians offering the explanations that patients need when faced with unanticipated outcomes of their care. 

“A bad outcome is not always synonymous with malpractice. However, a bad outcome and poor communication are usually the driving force when a patient or family considers litigation,” Billingham says. “The importance of communicating effectively with patients and their families cannot be emphasized enough-it is one of the best ways to mitigate risk.

 “Listening carefully, offering clear answers and instructions, addressing complaints, setting realistic expectations, including family members (as appropriate), and documenting thoroughly are all good techniques to improve communication and avoid risk exposure,” he suggests. 

It’s also important to inform the patient and loved ones that the physician’s practice will learn from the error so as to eliminate or minimize harm to others in the future.

Some circumstances may call for a formal apology, Billingham says, but in all cases, it never hurts to express empathy to the patient and family.

Certain populations may require special consideration, such as patients with language barriers, and those who are elderly or noncompliant-leaving the hospital against medical advice or acting in a violent or disruptive manner.

2. Lack of informed consent

“Patient consent is a big area where claims can come into play,” says Rob O’Connor, CPCU, senior vice president at People’s United Insurance Agency Inc., a general carrier headquartered in Hartford, Connecticut that underwrites liability policies for physicians and healthcare facilities.

“You want to make sure that the patient has consented to whatever procedure the doctor is doing,” he adds. For instance, the patient should have “a full understanding of the risks-that surgery may lead to death or paralysis.”

It’s essential to verbally communicate the risks before a procedure, not after-and to include this information in a written consent form that the patient signs. The patient must receive a proper explanation of the form’s purpose that clearly spells out the risks inherent in the procedure.

“This should be standard practice,” O’Connor says, “but there are still problems in this area with claims.”

3. Failure to stay up-to-date on standards and training

Physicians also need to be aware of new and revised developments in their areas of practice and specialties, says Kenneth N. Rashbaum, a healthcare compliance lawyer in New York, New York. This includes changes in disease management for acute and chronic conditions, technological innovations, recently published research and practice standards.

“Often, medical liability issues focus on the question of whether the doctor followed current standards of practice,” Rashbaum says, “or was he or she treating the patient based on an older standard that has been revised in recent years?”

While this advice may sound obvious, he adds that busy practitioners “may not feel they have the time to read up on everything that is current,” or to participate in conferences and other continuing medical education opportunities.

The transition to electronic health records is among the most significant risk management concerns, Rashbaum says.

“Clinicians should make sure they are current in training on their organization’s systems and familiar with the issues regarding use of templates and clinical support systems in computer-based pharmaceutical ordering,” he says, “and that they are aware of the need for retention of communications relevant to treatment.”

4. Inadequate follow-up of diagnostic tests and specialist referrals

Some of the most frequent problems resulting in litigation involve physician orders for tests and the corresponding lab or X-ray results, says Darrell Ranum, JD, CPHRM, vice president of patient safety at The Doctors Company, a medical malpractice insurer headquartered in Napa, California.

There are instances when tests results aren’t received by the ordering physician. On other occasions, patients don’t follow through with tests as directed; or the results come in, are filed away before the physician reviews them, and the patient isn’t briefed about the findings.

“If test results that indicate patients need further testing or treatments are lost or not addressed, patients may not receive necessary treatment,” Ranum says. “It is essential that physicians and their staffs be able to track the status of these orders to make sure that none are overlooked or forgotten.”

Another aspect of care needing better follow-up involves referrals to specialists. The referring physician’s office often makes appointments with specialists for patients and documents when a specialist’s report is anticipated.

“The referring office should set a reminder as to when to expect the report,” Ranum suggests.

If the report isn’t received within a specified time from the appointment date, the referring office should contact the consulting practice and note its follow-up efforts in the patient’s medical record.

“Generally, the consultant will contact the referring physician if the patient is a no-show,” he says. “The referring physician should then contact the patient.”

5. Variations in policies and procedures

“In well-run practices, there is one set of rules that all staff understands and follows,” says Karen B. Everitt, regional vice president of risk management at ProAssurance Companies, a professional liability carrier based in Birmingham, Alabama. “The alternative is risky, where there are numerous competing procedures that vary from physician-to-physician or between staff members, making it easy for errors or omissions to occur.”

Policies and procedures should be specific and readily available to all staff members. They can be kept in a notebook or manual or in an electronic format that is easy for the office staff to access. The physician or a committee should review policies and procedures on an annual basis to ensure that they reflect preferences and requirements, Everitt says.

In addition to follow-ups on diagnostic tests and specialist referrals, these policies would detail the protocols for calling in new or refill prescriptions and dealing with cancellations and no-show appointments. They would also provide clear guidance in addressing patient or family complaints, security, retention, storage, destruction, maintenance, and release of medical information under Health Insurance Portability and Accountability Act rules.

Other issues include fire safety and emergency or disaster response, social media, and employee competency and conduct.

6. Avoidance behavior

Compassionate gestures count. If a hospitalized patient has a bad outcome, some physicians may avoid making rounds in the presence of relatives.

“Look at it through the family’s eyes,” says Roberts, the University of Wisconsin family medicine practitioner. “That’s exactly when they really need you.”

Don’t be afraid to face them. It’s important to let them know you understand how they feel. Make eye contact with whomever you’re addressing and put a comforting hand on the individual’s arm.

“That’s a key part of doctoring,” he says. And be sure to listen; don’t do all the talking. In other words: “Just shut up and be there. Show that you care.”

Remember, however, that risk management remains “a moving target,” cautions Billingham of The Medical Protective Company. “As new technologies and treatments emerge, so too will new risks. It’s important to constantly reassess and measure both quality and safety,” he says. 


The causes of malpractice suits and patient injury

The Doctors Company has one of the nation’s largest databases of medical malpractice claims and suits. The company studies the clinical information captured in the data to gain understanding of the mechanisms and causes of patient harm and provide this information to physicians so they can reduce risk and promote patient safety. 

The following are some key findings for the studies:

Surgical treatment is the most common allegation in claims.  Some 25 percent of all claims involve surgical treatment.

Missed or delayed diagnosis is the second most common allegation.  Some 21 percent of all claims involve missed or delayed diagnosis.

The top factors that actually contributed to patient injury, based on expert reviews of the data, are:

  • Problems with clinical judgment (38%)

  • Technical skills (23%)

  • Communication (22%)

  • Patient behaviors (20%)

  • System failures (14%)

  • Documentation (13%)

Source: The Doctors Company

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