Top medical malpractice risk areas

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

The status of the health care professional liability climate has not significantly changed for physicians. Doctors have left the state, fewer residents are moving into higher risk specialties, access to care has been affected negatively, and physicians have abandoned certain higher risk care. Certainly, the professional liability risks are still too high.

Specifically in Pennsylvania, patient access to care is affected. Data shows that:

· There has been an increase in driving distance of patients needing specialty care.

· There has been an increase in waiting times for specialty care.

· There has been an increase in emergency care waiting times.

· There has been an increase in the number of patients forced to switch physicians.

· 42 percent of specialists have reduced or eliminated high-risk procedures.

These access to care issues affect patient perceptions of their physicians as well as physicians directly.

A significant concern is the continued increase in severity. In other words, plaintiff lawyers are continuing to push these numbers higher. Reasons include continued communication, documentation and service lapses that are coupled with an unexpected or adverse outcome. The need for good communication is under-rated. It is when patients do not have answers to questions from their physician that they often seek out a plaintiff’s attorney.

The good news is that we understand more than ever before how to impact this liability. The open question is: Will we do anything about it? The first step in reducing risk is always identifying the clinical risk that exists. We have undertaken to determine the most significant factors in determining whether or not a complication or adverse outcome becomes a claim. We, together with physician leaders, are determining the cluster of clinical circumstances that cause adverse outcomes. These too must be addressed, but are outside the scope of this article. We look at a way to reduce the potential of a claim from occurring in the first place. Two of the leading the areas of risk are physician-patient relationship and appropriate disclosure after an adverse event. Below is a brief summary of the issues related to the physician-patient relationship and disclosure, and strategies for reducing risk. The key is in execution of these strategies.

Physician-Patient Relationship

Working on enhancing the physician-patient relationship is the first step to reducing liability risk. The physician-patient relationship affects patient satisfaction and liability risk directly. Communication is the key to a great relationship. Communication is linked to adverse events and event follow-up as well as claims. Communication issues are used by plaintiff attorneys in deciding whether to take on a case, and ultimately in the courtroom, which can lead to increased verdicts.

Patients notice what you say and how you say it. They can misinterpret body language and tone. You can take action now to enhance communication, ultimately enhancing the physician-patient relationship:

95 Invest in the first ten seconds.

95 Build a culture of communication.

95 Build a five-star service excellence practice.

The “first ten” seconds of your encounter with a patient will set the stage for not only that contact with the patient but also future contacts. Psychologists tell us that the first impression in every contact makes a significant, cumulative difference. This is true not only for you but also your staff. Keep a reminder on note pads and stickers: the First 10! Encourage staff and other providers to be good communicators. If you have not had a communication in-service in the last 12 months, schedule it. Training workshops are available that provide hands-on training for physicians, including role-playing techniques. Do not underestimate the value of good communication. Specifically, you should:

· Develop a culture of communication.

· Provide an educational program to staff on communication.

· Provide in-service training to staff on communication techniques.

· Provide in-service training to physicians on communication techniques.

· Permit physicians to attend communication workshops.

· Be a role model.

· Provide staff the tools it needs to make a change in communication.

· Commit to that change and execute on it!

A “five-star” service excellence practice acts to enhance the physician-patient relationship. Practices across the country are becoming five-star practices and are differentiating their practice on account of this. There is a noticeable difference in the receptionist, the front desk, the waiting room, and billing. Incorporating true five-star service throughout your practice enhances the patient’s experience and the patient’s relationship with you. This is becoming more important as transparency and quality are becoming ever-increasing important trends in the health care industry. You can do so as well, with a commitment by your entire organization to five-star. Five-star is a concept initially introduced in the hospitality industry which is now seen throughout the U.S. culture. Hospitals and physician practices are embracing it as pay for performance initiatives and quality initiatives are becoming more prevalent. A five-star service culture can therefore act to enhance your practice, patient satisfaction, and employee satisfaction. Specifically, you should:

· Commit to the five-star service excellence culture.

· Ensure buy-in from your practice leaders.

· Provide an educational program to physicians and staff.

· Provide physicians and staff with the tools they need.

· Incorporate service excellence into orientations, in-services, and employee evaluations.

· Perform patient surveys, and use the surveys to further enhance your practice.

· Identify a champion of the cause.

· Again, be a role model.

Disclosure of Adverse Outcomes

The physician-patient relationship can have a far-reaching positive impact. When an adverse outcome occurs, having in place a good physician-patient relationship can be helpful with this next issue – disclosure.

Adverse outcomes are an extension of patient safety and liability reduction. The nationwide trend is towards disclosure as federal and state laws are evolving to include varying types of patient notification requirements. For example, in Pennsylvania, the MCARE Act requires hospitals to notify patients when certain adverse events occur. Circumstances like this make proper disclosure by a patient’s physician more important than ever.

Many health care providers have fears about the repercussions of medical error disclosure, including credentialing, privileges, reputation, sanctioning, licensing and liability issues. These issues should not be barriers – they can be overcome if disclosure is done properly. Proper disclosure can lead to significant benefits, including patient satisfaction, continuous quality improvement, and preventing or derailing a claim or lawsuit. It is also good for a physician’s emotional health. The reality is that plaintiff lawyers use a lack of disclosure to aggravate a jury (patients!). They make it appear as if there has been a cover up and that it took a lawsuit to determine what occurred to the patient. However, if patients are aware of what occurred, understand why it occurred, and understand that steps are being taken to prevent reoccurrence, it can prevent a patient from seeing a plaintiff’s lawyer in the first instance.

The key to disclosing an adverse outcome in the proper manner are the who, what, and when. That is, who should disclose, what should you disclose, and when should you disclose it? Patients tell us that they want to hear from their physician. However, it is essential that the physician be a good communicator. If for some reason, the physician is not, it may make sense to have a risk manager or patient safety officer speak with the patient. The physician should be in attendance during this discussion, and a witness should always be present. It is also important to collaborate with all team members in a no-blame fashion.

It is important to understand that in most circumstances we are showing empathy because something unfortunate occurred. “We are sorry this complication occurred; we are trying to understand what happened; we are going to review it with you; we will know more ….”

Only disclose facts that are known – never speculate or guess as that can only lead to more harm down the road. When facts are unknown or still being investigated, then say so. Apologize – in a way that does not admit liability. “I’m sorry” is a phrase being heard more and more in the health care industry and which is gaining acceptance. Doug Wojcieszak of The Sorry Works! Coalition, a national leading advocacy group, has said, “Disclosure and apology are becoming the mainstream way to reduce liability exposure. Administrators, risk managers, and providers are learning that addressing errors head on with real apologies and a commitment to fix problems for patients and families go a long way to reducing the number of lawsuits.”

Disclosure should occur as soon as possible after an event or occurrence. Always ensure the patient’s safety in the first place and develop a plan for continued care, which is communicated to the patient and family. Ensure that follow-up occurs with the patient and that the patient is given contact information if he or she have questions later.

Importantly, document the disclosure:

· Who was present, their titles and/or relationship to the patient.

· When and where the meeting was held.

· A general summary of the meeting.

· Patient/family understanding of the discussion.

· Any assistance offered.

· Next steps.

Disclosure does not necessarily come naturally to physicians and/or staff. The key is for an organization to have a plan which should include having in place an infrastructure designed to handle next steps when an error or unexpected outcome occurs. Leaders, physicians and staff should be educated and trained on disclosure. Finally, use an event management program as part of the infrastructure.

In 2007 and 2008, we need to take risk reduction to the next level. It starts with understanding where the clinical risk is in every particular specialty. This information is becoming more readily available. Next, we need to focus on the drivers of professional liability risk. Relationships and the lack thereof are fueled by good communication and five-star service. Next, focus on good disclosure of adverse events when they occur. Not only will these help your liability equation but they are also good for the business of your practice.

James W. Saxton, Esq., is Co-Chair of Stevens & Lee’s Health Care Department and Chair of the Health Care Litigation Group. Maggie M. Finkelstein, Esq., is an Associate in Stevens & Lee’s Health Care and Litigation Departments.

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