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Reducing your risk of malpractice claims

By James W. Saxton, Esq. & Maggie M. Finkelstein, Esq.

In order to reduce risk in a serious fashion, understanding the true cause of medical malpractice claims is essential. The data reveal that often a professional liability claim is initiated due to communication or service lapses, and not due to malpractice. Methods for reducing communication or service lapses, therefore, can positively impact liability risk.

Costs of any professional liability claim or lawsuit to a physician of course include a financial aspect, but it is much more than that. Neither the public nor the legislatures understand the true impact of a lawsuit, as evidenced by their current debate regarding whether tort reform is even needed. Physicians, their families and their staff go through an emotional roller coaster and suffer stress, often trying to assess where things went “wrong” and what they might have done differently in the care of a patient, when actually perhaps nothing was “wrong” with the care and treatment provided.

The length of litigation can take its toll. We have long underestimated the true impact these claims are having on our doctors. Physicians Insurance Association of American has estimated that on average, it can take more than five years after the date of an incident for a payment to be made in a professional liability action. The physicians may incur a negative impact to their reputations and even their medical practice from the media or by word of mouth. There can be licensing and credentialing implications. Pennsylvania passed legislation requiring that a physician report a medical malpractice suit to the State Board of Medicine, who then has the authority to investigate, independent of any result in litigation, and to impose sanctions on a physician if it determines that the physician was negligent, not requiring liability to be determined. (Section 903 of the Medical Care Availability and Reduction of Error Act). If any payment is made in response to a written claim, a report must be made to the National Practitioners Databank as well as the State licensing board (See section 746 of the MCARE Act). Hospitals use the databank to query for recredentialing purposes, among other things.

With the financial implications and other costs associated with a professional liability claim, it is important to understand what may truly cause claims so that methods of prevention to reduce risk can be followed.

Although it has often been concluded that “good bedside manners” is important, we never realized just what an impact it can have. Studies by Hickson and Levinson, published in 2002 in the Journal of the American Medical Association, have revealed that physician-patient communication is linked to professional liability claims. Hickson has linked both communication lapses and patient complaints to professional liability claims. When a patient complaint or dissatisfaction is coupled with an adverse event, the patient is more likely to sue when their complaint has not been satisfactorily addressed. Levinson, in a previous study, specifically associated good communication with fewer professional liability claims. Therefore, by enhancing communication and service excellence, a physician can reduce professional liability risk and, as new evidence shows, simultaneaously enhance a practice’s bottom line through higher patient satisfaction.

Good communication also includes written communication. With accountability appropriately placed on the patient, physician liability risk can be reduced. For example, one often alleged negligent act in a lawsuit is that the physician failed to take an appropriate history of the patient, which resulted in the physician’s negligent care of the patient. However, by incorporating language in a patient history form which sets forth the patient’s responsibility for providing accurate and complete results and signed by the patient, places responsibility on the patient. This acts to make the patient aware of the importance of providing accurate and complete information.

Knowing what often causes malpractice lawsuits leads to solutions for reducing risk of those lawsuits. Using traditional risk management techniques, and new ones, can affect risk in the two areas which Hickson and Levinson identified: service lapses and communication lapses. Therefore, enhancing communication and taking service to what we call the next level, five-star service, can impact risk. This is the direction that many practices are headed, and it is a trend that needs to continue.

In that patient complaints are linked to claims, appropriately addressing complaints can positively impact risk. An event management process should be in place to handle patient complaints. One person can be responsible for receiving and reviewing patient complaints – a patient advocate of sorts. Timing is everything. The sooner that a patient is contacted to address their complaint, even if it is just to notify the patient that their complaint was received and is being investigated, the better. The first 24 hours are critical. The complaint then should be truly investigated. Often times, anger drives a patient to a plaintiff’s attorney. The complaints should be looked upon as an opportunity: to address a patient concern, to prevent the concern from escalating, to create evidence in your own favor should the matter evolve, to satisfy a patient, and to prevent the same situation from occurring again either to the same patient or any other patient as part of an overall quality improvement program.

Manage patient expectations. Often times patients become angry or upset because they initially did not have an understanding as to the expected results of their care and treatment. Managing patient expectations at every step of a patient’s treatment can keep their expectations in line with reality. This could involve informed consent documents, patient education tools, videos and films, brochures, as well as communication and patient involvement.

Every day communication is important as well, and is a component of providing five-star customer service. Neither concept is easy to accomplish, despite the appearance of the concepts being just “common sense.” It takes effort every day and is difficult because both concepts involve changing behavior. Communicating better involves not only words, but also behavior and mannerisms. Patients take note of rolling eyes and other gestures. They can even sense the same over the telephone. Changing the behavior may first begin with recognizing that you exhibit a behavior that may not be well-received by the recipient. After you recognize the behavior, changing it for the long-term takes work. One method to change is the ladder approach. For example, if a physician is behind schedule and stressed, causing a rushed attitude, the first step is to consciously recognize the appearance being portrayed. You may catch yourself and redirect behavior. As this process continues, and the more often you recognize it, eventually it will become habit to react in more positive fashions.

Practices are working to implement and to move up the five-star service culture curve, making it a part of their every day practice. Five-star service is part of everyday behavior, and it is every aspect and point of contact of a physician’s office that needs to have a positive impression on the customer or patient: telephone, front desk, waiting room, examination room, office visit and examination, encounter with staff and nurses, encounter with the physician, check out, and billing. To understand where you can impact service, an assessment of each of these points of contact needs to occur, followed by an analysis and a plan for improving service excellence. The plan must then be followed through and regular assessments should occur to continue to identify weaknesses and also to identify compliance.

Improving service and striving for five-star service, as well as enhancing communication, can improve liability risk at the same time that it enhances practice success. A step-by-step process to impact risk could look as follows:

· Embrace the five-star concept.

· Announce commitment to the organization.

· Assess your practice’s service and patient satisfaction.

· Analyze the assessment and identify weaknesses and areas for improvement.

· Establish a plan for implementing change.

· Include educational programs for physician and staff.

· Provide physicians and staff with tools to effectuate change.

· Re-assess annually.

· Keep the commitment alive by event management, on-going training, and incorporating communication and service strategies into your culture.

James W. Saxton, Esq., is a shareholder with Stevens & Lee, where he is Chair of the Healthcare Litigation Group and Co-Chair of the Healthcare Department. Maggie M. Finkelstein, Esq. is an associate with Stevens & Lee, associated with its Healthcare Litigation Group and Healthcare Department.

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