By James Saxton, Esq. & Maggie M. Finkelstein, Esq.
The entire nation continues to experience a medical malpractice liability crisis. Facing physicians is the concern of frequency and severity of claims that either continues to rise or remains steady. Much has been written about the impact of the liability crisis on physicians, the medical community, patients and access to care. They need not be reiterated here. The question remains, what can we do about it? Strong, and, more importantly, innovative risk management strategies can reduce both the frequency and severity of claims.
The process of risk management means focusing on those circumstances and/or situations which cause either clinical complications or professional liability risk. It also means trying to prevent those circumstances which make these claims more attractive to the lawyer. For example, generally, we know that documentation – or the lack of it – is what can cause a plaintiff’s lawyer to determine that investment in a claim is worthwhile. We also know that plaintiff attorneys use aggravating circumstances such as communication issues or service lapses against a physician. Therefore, if we know that documentation is not occurring to the extent or in the manner that could help to prevent a lawsuit, you can focus on documentation. That might mean using the SOAP method of documentation or it might mean incorporating certain new forms of documentation into your everyday practice. We set forth below a number of such examples and a process.
Where Does Your Risk Lie?
The first step in reducing liability risk is always understanding where your risk lies in the first place. Knowing where the risk lies means that you can fashion tools and strategies that can literally impact that risk in a positive fashion.
You can use national data to understand where risk lies, focusing first on general risk management issues and then on specialty-specific risk. We know that risk generally lies in areas associated with poor or ineffective communication, poor or lack of documentation, and service lapses. The majority of claims from a clinical perspective generally allege failure to diagnose, misdiagnosis, or improper performance. (See for example, PIAA Closed Claims Data for Ob-Gyn 1985-2003; PIAA National Closed Claims Data 1985-2000). If you have a quality assurance committee, it can track or trend data in the right way.
For those physicians and practices insured by an alternative risk financing vehicle, you may have data available through that organization. For example, one local insurer in a nine-county region in Pa. blindly tracks and trends data associated with claims and lawsuits. From this data, we know that claims generally arise from service issues, communication issues, and documentation issues associated with allegations of failure to diagnose, misdiagnosis, delay in diagnosis, and improper performance. You may be able to use hospital data.
Specific to your own organization, you can also use data from a third-party resource by way of a baseline office risk management assessment. Those physicians insured by an alternative risk financing vehicle may have this already available to them through their insurer. Others can purchase these services from a third-party vendor. The baseline assessment can show you where your practice’s risk lies, so that you can develop strategies and tools to reduce that risk. In this way, you can drill down on your particular risk, taking your analysis to a new level.
What Strategies Can You Use Now?
We know that many lawsuits are initiated due to anger and frustrations of families and patients related to service. Whether it is a phone call that was not returned or questions not answered, these types of issues often trigger a patient or family member to seek an attorney, looking for explanations. This is why incorporating five-star service strategies and an event management program into your practice can go a long way to preventing claims and lawsuits, or at least building positive evidence if a lawsuit is initiated.
A “Five-Star Culture” is the first step, and it must be believed and practiced every day by every member of your team: management, staff and physicians. Patients recognize five-star service, and they also recognize when they do not receive it. Incorporating a five-star culture takes work, and a thoughtful plan must initially be in place. It is a component of your practice which needs constant attention. One way to maintain such a culture once it is established is to create a five-star focus group. This group can internally manage your culture and introduce innovative ways to keep it alive. The group should include both physicians and staff, who should review data and complaints. They are the group that will keep the program alive.
Similarly, an event management program is key to reducing liability risk. Event management is a process whereby support can be given after an adverse event occurs in an effort to ensure that good communication and appropriate documentation occurs. It is important to have an event management policy in your office and to educate your staff on the process. Event management may mean having a meeting with a patient and/or family members to discuss patient care, so that everyone is on the same page, and to answer questions and address concerns that have been raised. It may mean taking the time to thoughtfully respond to a patient letter that contains a complaint or concern. It can take several forms and every situation will need to be managed differently.
What it does in the first instance is address the immediate concern. It then also provides a means for continuous quality improvement – a learning laboratory. You also look at it from a quality assurance aspect: what could you have done differently that would have prevented the concern, the question or the complaint? What can you do now to incorporate a process, tool or strategy in your practice so that it does not happen again to this patient or to any patient? In this way, you not only lead to patient satisfaction, but you also move towards positive risk reduction.
An important aspect of event management is communication. How you communicate is just as important as what you communicate. Patients and families can tell when you are being insincere or not taking the time with them that they feel is needed. Dealing with an angry patient or family member is not easy, and many have the tendency to think the issue will go away. However, there is a better way to manage and communicate in such a situation. For example, let the patient vent. Show the patient empathy. Then most importantly, develop a plan to address the concerns. This may mean that we need to change the way we communicate, and changing behavior is not an easy task. There are many communication programs and workshops available which can help physicians and their staff make this change.
Documentation also plays a key role, not only in whether a lawsuit will be filed in the first place, but also in defense of a lawsuit. Plaintiff attorneys are using documentation against physicians in the courtroom – using technology to display medical records and documentation in front of juries, including on computer screens in the technology courtrooms across the nation. It is time for physicians to use documentation for them.
Setting aside what to document, there are many forms and strategies physicians can use to reduce liability risk. For example, a change in the history form – by incorporating an introductory paragraph which sets forth the importance to the patient of providing accurate and complete information, and using a patient signature at the end which also reiterates the accurateness of the information provided. This helps to place responsibility, rightly, on the patient – the concept of patient accountability.
One can also use a procedure-specific informed consent form which delineates the specific risks and alternatives to a procedure, for a specific procedure, instead of using a generic informed consent form. The procedure-specific form also uses “including but not limited to” language when listing those risks, which will prevent a physician from being boxed in to a set of risks. In addition, the form can include a new type of witness attestation, which is not merely a witness to the patient signature, but rather a witness that the patient has no other questions, their questions have been answered, and that they have read and understood the form. This can go a long way to prevent “he said, she said” in the courtroom. It is time we bring an end to the lack of informed consent claims.
There are also ways to manage patient expectations and family expectations so as to prevent claims and lawsuits. When patient expectations are not in line with reality, we often see patients visiting lawyers. The procedure-specific informed consent form is one way. For example, you can provide the patient with a copy of the form to take home with him or her. This can help to prevent a patient going to a lawyer and saying and that they did not know of the risk. There are many other ways to manage patient expectations. For example, in the practice of bariatrics, one cause of claims is often that family members do not understand the implications of the surgery and/or the potential results (including positive results). One way to manage those expectations is to have the family member or significant other involved and to have them sign a Spousal Consent form.
It is time for physicians to take the age-old topic of risk management to the next level. Risk management is not about defending lawsuits or claims. It is about safety, communication, analysis of data and creation and execution of tools to reduce those clusters of circumstances in the first place. It means having in place a process for when things go wrong so one can not only positively impact the patient and their families but create positive evidence in case there is a claim. This will allow a more aggressive defense to be undertaken. All of these strategies done in a serious fashion will help to change the liability equation in the future.
James 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 Finkelstein, Esq., is an associate with Stevens & Lee, associated with its Healthcare Litigation Group and Healthcare Department.