Strategies to lower your malpractice risk

First, you must get past common misconceptions. Then you need to follow well-documented methods for avoiding patient disappointment.

Few topics preoccupy clinicians as much as the threat of being sued for medical malpractice. Yet pervasive mythology and misinformation cloud perceptions. To avoid facing their day in court, clinicians should understand the current realities of malpractice, familiarize themselves with strategies to reduce the risk of litigation, and know how to make amends with patients when something goes awry.

What the data really show

There is far more malpractice committed than is recognized, litigated, or compensated. Studies in Colorado, New York, and Utah indicate that 2.9%-3.7% of hospital patients experience an adverse event, with 53%-58% of those events caused by error and 6.6%-13.6% resulting in death.1-3 Only 2% of patients injured by error ever pursue a claim.4 At the same time, payment is made on an estimated one of four claims even when there was no error.5

A closer review of the last study provides helpful insights into the nature of malpractice litigation. The study encompassed 20 years of data from five insurers covering 33,000 clinicians, 61 hospitals, and 428 outpatient facilities. Analysis of the 1,452 closed claims showed that 57% of injuries occurred in the hospital and 43% in the outpatient setting. The defendant was a physician in 82% of the cases, and nurses were named in 9% (89 RNs, 39 APNs, 4 LPNs). Women comprised 60% of the plaintiffs, with an average age of 35 years. (This isn’t surprising because pregnancy is one of the most common reasons to see a clinician, enter the hospital, or file a malpractice claim.) The average time from the occurrence of an injury to the closure of the claim was five years.

There were no verifiable medical injuries in 3% of the claims, and 37% of the cases did not involve errors. Most of the claims not associated with errors or injuries resulted in no compensation. Overall, compensation was paid in 56% of claims. Only 15% of the claims were taken to a court decision, with the plaintiff prevailing in 21% of verdicts. Of the 85% of claims resolved prior to a court verdict, payment was made to 61% of claimants. Awards in verdicts were nearly twice as large as out-of-court settlements ($799,000 vs. $462,000). Transaction costs—defense expenses and plaintiff’s lawyer fees—accounted for 54% of the compensation paid to plaintiffs.

What the aggrieved patient must prove

For clinicians named in a suit, a malpractice case looms like a deep abyss. What they forget is that for patients seeking redress, a claim appears to be an insurmountable mountain to climb. Plaintiffs must prove four elements to prevail: that they had a professional relationship with the clinician; that the professional’s performance was negligent in that it fell below the standard of care; that the negligence caused the injury; and that the injury resulted in damages. Each requirement can present challenges.

The relationship: Even though a professional relationship is readily apparent most of the time, it can be ambiguous. Let’s say a nurse practitioner offers telephone advice to a patient yet to be seen in the practice. Does a professional relationship exist? Most courts would answer yes, to the extent that a reasonable person would have relied on the advice. Is a relationship said to exist between a physician assistant and the patient, or instead between the PA’s employing physician and the patient? The answer will depend on the extent to which the PA exercises independent judgment and has a unique professional relationship with the patient as well as on whether the PA is regarded by state law as an independent practitioner or as an agent of the physician. The general principle is that the more independent the clinician, the more likely he or she will be held individually liable for professional acts.

Standard of care: The standard of care is the level of performance that would be expected of the average—not the best—practitioner confronted by similar clinical circumstances. The clinician who performs below that level is said to be negligent. Imagine a patient who is evaluated solely by a PA in a rural primary-care practice for acute wrist pain after a fall, has an x-ray that is not sent to a radiologist, and is diagnosed with a wrist sprain, when in fact there was a scaphoid (navicular) fracture. The patient goes on to suffer permanent pain and disability for the undiagnosed fracture and sues the PA for injuries.

Tort law requires the testimony of an expert witness that the performance of the PA fell below the standard of care. Which expert should give testimony in this case? A primary-care PA? A PA in an orthopedics practice? A primary-care physician? A radiologist? An orthopedic surgeon? Should the expert come from a rural setting? The same state? Lawyers for both sides will use as many different experts as will best help their case. The attorneys will usually aim for an expert who matches most closely the skills and background of the defendant. Even though the general trend is to hold professionals to a single national standard, regardless of locale or specialty, both plaintiff’s and defense lawyers know that juries are more likely to be persuaded if their experts closely match the profile of the defendant.

Proximate cause: The requirement that the clinician’s negligence caused the patient’s harm can be quite complex to sort out. For example, electronic fetal monitoring (EFM) has not been shown to improve or predict long-term birth outcomes.6 Yet when a fetus with a worrisome EFM tracing is determined after birth to have cerebral palsy, it can be tempting to attribute the cerebral palsy to brain damage due to perinatal asphyxia. Studies show, however, that the birth process causes less than 10% of cerebral palsy. While it may be related to prematurity or perinatal infection, in most cases, no one knows why cerebral palsy developed nor how it could have been prevented.7 Yet, for the clinician taking care of an afflicted child, it may be more comforting and sound more professional to attribute the handicap to an error in labor management than to say, “I don’t know what caused the cerebral palsy.”

Let’s also consider a 39-year-old woman who presents with a small breast lump. She does not have a personal or family history of breast cancer. Most often, such masses will turn out to be a cyst that resolves with her next menses or a benign fibroadenoma. The NP appropriately advises the woman to return for a repeat examination after her next menses. But the patient does not return for eight months, when she is found to have metastatic breast cancer with a five-year survival rate of 30%. Did the woman have breast cancer at her first visit? If so, was it already metastatic at that time? These are key questions when trying to determine whether the interval between visits caused the woman any more harm than would have resulted from a correct diagnosis at the initial visit.

Another malpractice myth

Most patients who sue suffer serious injuries, and the notion that patients file claims for frivolous reasons is another malpractice myth not substantiated by the data. The extent and value of damages, however, can be difficult to determine. The breast cancer case described previously is a good example. The patient clearly had some responsibility to act on the clinician’s advice (hopefully documented) to return after her next menses. The NP’s lawyer would try to convince the jury that the patient was guilty of contributory negligence.

Typically, the relative “fault” of both the clinician and the patient would be apportioned by a jury. Let’s assume in this case that a jury finds that there was a delay in diagnosis, that the delay decreased the woman’s chance for survival by 50% (from 80% to 30%), that the total damages were $10 million ($1 million in medical costs, $1 million in past and future wages lost, and $8 million in pain and suffering), and that the clinician was judged 60% responsible for the eventual harm (“after all, clinicians and staff should have recall systems in place to remind patients to return, shouldn’t they?”) and the patient 40% negligent. Thus, the final calculation by the jury might go something like this: $10 million x 0.50 (loss of a chance) x 0.60 (the NP’s portion of responsibility) = $3 million judgment against the NP.

Why clinicians get sued

To better safeguard your practice, it’s helpful to know the main reasons clinicians are sued. Here are those reasons, in order of occurrence:

1. Failure to diagnose or a delay in diagnosis. The most frequent malpractice allegations involve a delay in or missed diagnosis of breast cancer, usually because of overreliance on a false-negative mammogram. The second-most overlooked condition is MI, usually because of over-reliance on a falsely reassuring ECG or cardiac enzymes. These two conditions, as with most illnesses, are diagnosed based on clinical presentation as much or more than “objective” test results. A worrisome breast lump should be taken to a definitive diagnosis, whether that means observation to resolution through the next menses, aspiration and elimination of a benign cyst, or biopsy. A suspicious history consistent with heart attack merits immediate hospital admission and observation, regardless of the initial ECG and lab findings.

2. Negligent maternity care. With two patients involved, pregnancy is an inherently high-risk situation fraught with parental expectations for a perfect outcome. Then there are multiple caregivers, with risk for a foul-up occurring during each handoff of responsibility. Well-articulated birth plans and well-informed patients help reduce those risks.

3. Negligent fracture or trauma care. Two injuries deserve extra caution: the “sprained” wrist and the knee banged against the dashboard during a car crash. Sprained wrists, with anatomic snuff-box tenderness, are scaphoid fractures until proved otherwise and should be managed with thumb spica casts until fracture is ruled out. Traumatic knee injuries can cause popliteal-artery embarrassment and compromise distal circulation. Intact pedal pulses should be documented after such injuries.

4. Negligent drug treatment. The most dangerous prescription drug is warfarin. Although a lifesaving agent for many patients, warfarin has a narrow therapeutic window and requires vigilant monitoring, repeated patient education, and regular reassessment.

Making things right: The 4 Cs

The best way for clinicians to avoid angry patients is to provide the best possible care in the most empathic and efficient manner. Following the four Cs can guide you toward that kind of care.

1. Compassion. In the frenzy and frustration of our daily work, it can be easy to forget that patients bring their fears, pains, and vulnerabilities to the health-care encounter. They may send us clues that they are unhappy with their care. For example, patients who have not responded to repeated requests for payment may well be irresponsible deadbeats or financially overstretched. But they may also be expressing their dissatisfaction with care in the only way they know how. Take the time to inquire as to the reason for their failing or refusing to pay.

2. Competence. Guidelines and other care-management tools can reduce unnecessary variance in care but should not replace professional judgment or the needs of the specific patient. When the diagnosis remains elusive, when a patient or relative expresses concern about care, when the outcomes are unexpected or unwelcome, or when the patient is critically ill—these are all times to consider consultation.

3. Communication. Reflective listening and an empathic style promote effective relationships with patients. One approach that can be used is the BATHE technique8:

Background—“What’s going on in your life?” (Puts the visit into perspective)
Affect—“How do you feel about that?” (Elicits patient’s emotional response)
Trouble—“What troubles you the most about this?” (Gets at the symbolic meaning)
Handling—“How are you handling that?” (Assesses coping strategies and skills)
Empathy—“That must be difficult for you.” (Reflects understanding of the patient)

It is the handoff that can be one of the most dangerous moments in health care. Medicine is a team sport, and it’s crucial not to fumble the switching of responsibility. Keeping essential information secreted from other members of the care team, using notes in the patient’s record to fight professional turf or ego battles, or allowing care to slide from one professional to another without active communication, all increase the risk of unhappy outcomes and unwanted suits.

4. Charting. One of the least favorite tasks of clinicians is record keeping—yet it is one of the most crucial (up to 40% of malpractice suits are lost because of an inadequate or incomplete record).9 Not everything needs to be said in the record, only that which is most relevant and important. While the electronic health record holds great promise as a tool to improve care and safety, it is also too easy to dump information into a computer file that nobody reads and may actually obscure vital information and worsen care.

Malpractice risks can be reduced, though not eliminated. An empathic and respectful style, a reflective approach to practice, and a commitment to helping the entire health-care team succeed will improve outcomes and patient satisfaction and thereby reduce risk. When an injury occurs due to error, part of the healing comes from a sincere apology. While you’re asking the patient for forgiveness, don’t forget to forgive yourself.

Dr. Roberts is professor of family medicine at the University of Wisconsin in Madison.

References

1. Thomas EJ, Studdert DM, Burstin HR, et al. Incidence and types of adverse events and negligent care in Utah and Colorado. Med Care. 2000;38:261-271.

2. Brennan TA, Leape LL, Laird NM , et al. Incidence of adverse events and negligence in hospitalized patients. Results of the Harvard Medical Practice Study I. N Engl J Med. 1991;324:370-376.

3. Leape LL, Brennan TA, Laird NM, et al. The nature of adverse events in hospitalized patients: results of the Harvard Medical Practice Study II. N Engl J Med. 1991;324:377-384.

4. Studdert DM, Mello MM, Brennan TA. Medical malpractice. N Engl J Med. 2004;350:283-292.

5. Studdert DM, Mello MM, Gawande AA, et al. Claims, errors, and compensation payments in medical malpractice litigation. N Engl J Med. 2006;354:2024-2033.

6. Graham EM, Petersen SM, Christo DK, Fox HE. Intrapartum electronic fetal heart rate monitoring and the prevention of perinatal brain injury. Obstet Gynecol. 2006;108(3 Pt 1):656-666.

7. Nelson KB, Grether JK. Causes of cerebral palsy. Curr Opin Pediatr. 1999;11:487-491.

8. Lieberman JA, Stuart MR. The BATHE method: incorporating counseling and psychotherapy into the everyday management of patients. Prim Care Companion J Clin Psychiatry. 1999;1:35-38.

9. Roberts RG. Seven reasons family doctors get sued and how to reduce your risk. Fam Pract Manag. 2003;10:29-34.

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