By James W. Saxton, Esq. & Maggie M. Finkelstein, Esq.
Throughout the nation, health care providers are struggling in the face of a national medical liability crisis: insurance premiums continue to be high; physicians are leaving states to practice in more physician-friendly states, physicians are retiring early; and physicians are not performing certain higher-risk procedures. Median verdicts in medical malpractice cases are staying high, as well as frequency. According to Jury Verdict Research, the median verdict in 2003 was $1.2 million.
The costs of a professional liability claim are often underestimated, except by those physicians who have experienced it. It takes a toll on your emotions, on your staff, on your office atmosphere, on your personal life, and your patient care; and can lead to databank issues and licensing implications; not to mention the financial burden. The first step is prevention of lawsuits. It takes many strategies, including traditional and innovative risk management strategies in order to affect the frequency and severity of lawsuits in a positive fashion.
We know that often malpractice does not cause malpractice claims. Data reveals that communication and service lapses not only lead a patient to a plaintiff’s attorney, but also increase severity. Plaintiff counsel is taking advantage of the service issues, the lack of collaboration, and the lack of event management. They showcase these issues in the courtroom in front of the jurors (patients) – driving up severity.
Therefore, it is time for physicians to take control and to attack risk in order to change the liability equation for them. What can you do now to impact your personal risk profile? One of the new trends in physician’s offices is the creation of a Quality Assurance Committee.
In efforts to affect liability risk in a positive fashion at the same time that physicians increase patient safety and patient satisfaction, an emerging trend in the physician’s office is the creation of a Quality Assurance Committee. A Quality Assurance Committee consists of physicians within a medical practice who evaluate patient safety and quality of care to patients in efforts to minimize patient safety concerns, to manage current patient issues, and to prevent future patient safety issues.
Historically, quality assurance and peer review activities have been housed in the hospital setting, where physicians have had little impact on the process, the quality improvement measures, and the conclusions reached. By incorporating a QA Committee into the office practice, physicians can gain more control and affect their own specific risk. Physicians can get to the root cause of frequency and severity, and use the QA Committee as a vehicle for changing the liability equation.
The QA Committee can be structured so as to have any of several tasks such as:
· Review pending claims.
· Review quality assurance issues.
· Identify areas in need of improvement.
· Promote movement to best practices.
· Review and analysis of risk management issues.
· Oversight of event management process.
· Prioritize risk management activities.
· Tracking and trending of data.
· Patient concerns.
· Physician concerns.
· Developing risk management strategies in response, education and training.
· Remedial solutions.
· Determine educational endeavors.
· Police quality concerns of colleagues.
· Determine the need for ad hoc or focused loss control activities.
· Review data and trends of events and claims.
· Discuss and prioritize specific risk management initiatives in an effort to develop best practices from a risk management and quality assurance perspective.
As for organization, one of the most important aspects is having in place a structure to aid in confidentiality of information used by the QA Committee. There is a general recognition that, in order to promote disclosure by health care providers of events, the fear of having the information used against them must be mitigated. This requires confidentiality protections to prevent disclosure in a civil or criminal action, to prevent disclosure in a disciplinary action (whether about licensing or medical staff privileges), and to provide general confidentiality protections. However, there needs to be a balance. We cannot be so concerned about confidentiality that participation in quality assurance efforts does not take place. A structure can be created to reduce the risk of discoverability and use of the information against our physicians.
Confidentiality measures available include attorney client privilege, attorney work product doctrine, and peer review protections. In Pennsylvania, peer review information is protected by statute: Pennsylvania’s Peer Review Protection Act provides protections to a committee which undertakes certain peer review activity defined by the statute. If the requirements of the statute are met, the Act provides for confidentiality of information generated by, or for, a peer review committee, prohibiting disclosure in a civil action against a health care provider on the same subject matter reviewed by the committee. Notwithstanding the Act, plaintiffs will often claim that certain information is not protected in efforts to obtain it. For this reason alone it is important to have in place appropriate protective measures and evidence of the same to further aid in the ability to defend such attempts, and also to have legal counsel involved from inception.
Alternative risk insurance vehicles such as risk retention groups lend themselves to quality assurance activities by physicians, where physician-insureds are owners of the insurance company. This structure allows for the creation of mandatory, positive loss control efforts, including event management and quality assurance activities, where data can be blended to understand and identify trends.
One of the benefits of the alternative risk financing environment is that the Quality Assurance Committee can identify risks among the pool of physicians and provide solutions to all insured-physicians. Quality improvement recommendations can be made to the individual practice, loss control tools and strategies can be created and provided to all physician-members, and the information obtained can also be used to determine loss control/risk management educational programming.
In order for any Quality Assurance Committee to be successful, every physician and staff person needs to have an understanding of the QA efforts, their importance, and the internal QA process. This may begin with a mission statement for your practice which includes a commitment to QA efforts, which you can use on your materials, brochures, advertisements and website.
Part of the infrastructure should include the adoption of policies on the QA Committee. The policy should include a detailed description of the committee: what it is, the membership, and the functions and purpose. It may, for example, be a committee of three physicians whose purpose is to review medical records, medical care and quality concerns; set quality standards; review all mortalities; and recommend quality and performance improvement. Confidentiality of the Committee should be addressed, including confidentiality protections, immunities provided, and authorities for the same.
The procedure for the Committee should be addressed. It should not be a burdensome nor time consuming responsibility. The Committee could meet quarterly for an hour to an hour and a half.
A reporting policy should be in place which addresses the reporting procedure (the infrastructure), reporting forms (if any), and what should be reported. Sources of information will be important to identifying issues. Sources can include patients (complaints, patient satisfaction surveys), pending claims and lawsuits, physicians, event reports, self assessments, and reports from outside sources (auditing and surveying, for example). Recently, a study showed that patients can accurately report on quality of care by physicians in such areas as appointments and scheduling, communication skills, and referrals.
As you begin to create your Committee, select physicians who are known to be committed to the QA cause, and educate them about their duties. Prioritize initial objectives and goals. Review the Committee goals annually. As the Committee matures, begin with reporting of incidents. Develop a mission statement for the QA Committee.
Beginning like this, you are well on your way to a successful quality improvement effort. Set up timetables for each of these steps. The Committee can tackle more, as it matures. The Committee can truly be customized to meet your organizational needs, but it must have in place the structure and protections needed to make it truly effective.
James W. Saxton, Esq., is Co-Chair of Stevens & Lee’s Health Law Department and Chair of the Health Law Litigation Group. Maggie M. Finkelstein, Esq., is an Associate in Stevens & Lee’s Health Law and Litigation Departments.