Malpractice may be negative, but its data can generate positive results [PODCAST]

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“When most health care professionals hear the word ‘malpractice,’ they want to run the other way. This is understandable—but also a missed opportunity. We can leverage malpractice data to target and drive investment in patient safety efforts. Malpractice data shows us that good communication and teamwork are vital to preventing adverse events and malpractice claims—while dramatically improving working conditions and enhancing patient safety.

Malpractice data shows that communication-related factors contribute to about 30 percent of claims. When communication is disrespectful, unclear, or simply missing, risks to patient safety and provider liability are amplified, whether the communication is between providers or between a provider and the patient/family.”

David L. Feldman is chief medical officer, The Doctors Company and Healthcare Risk Advisors.

He shares his story and discusses his KevinMD article, “Malpractice may be negative, but its data can generate positive results.”

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Hosted by Kevin Pho, MD, The Podcast by KevinMD shares the stories of the many who intersect with our health care system but are rarely heard from.

Transcript

Kevin Pho: Hi, and welcome to the show, where we share the stories of the many who intersect with our health care system but are rarely heard from. My name is Kevin Pho, founder and editor of KevinMD. Rate and review the show at KevinMD.com/rate. Subscribe at KevinMD.com/follow. Today we welcome back on the show David Feldman. He is chief medical officer at The Doctors Company, which is a longtime KevinMD sponsor. His latest KevinMD article is “Malpractice may be negative, but its data can generate positive results.” Now, for those of you who get a chance to listen to our first few episodes together, just briefly introduce yourself and share your story with my audience.

David L. Feldman: Sure. So, Kevin, I guess I view myself as an alternative career doc. I began as a plastic surgeon, a board-certified plastic surgeon practicing in a large hospital in urban New York, in Brooklyn, New York, and really developed an interest in lots of other related areas. I became an OR administrator and went to business school in the interim. But then, working in ORs and leading folks in ORs, I really got passionate about patient safety and quality, and in particular, and we’ll talk about it today, about how doctors and other clinicians treat not only each other but patients: mutual respect.

And then about 11 years ago, I became the chief medical officer at a malpractice insurance company, really working on risk management and patient safety, preventing malpractice, which is really about, obviously, preventing adverse events, but also how we communicate with patients before, during, and after care, and how we document so that we can defend ourselves when we have a case. And that’s really become my bailiwick in the world of reducing malpractice risk.

Kevin Pho: Now, we’ve talked with representatives from The Doctors Company several times over the past couple of years, so I’m always going to ask you: Today, in July 2022, what are some of the latest trends in medical malpractice that physicians should know about today?

David L. Feldman: Yeah, well, obviously we can’t have this conversation without talking about COVID. Everybody’s concerned about COVID and the impact on malpractice, and the answer still is we don’t really know. Malpractice is a lagging indicator, so it will be years. The attorneys that I work with tell me that we’re not going to really know for a little while. The end of this year may be telling, because we’re starting to get toward the end of the statute of limitations for cases that might have happened at the beginning of the pandemic, in March of 2020, right? We’re now at about two and a half years.

So we’ll see, but there certainly hasn’t been a huge uptick in the number of COVID-related claims. And when we say COVID-related claims, we’re really talking about claims about patients with COVID or getting COVID, and then people impacted by the whole COVID pandemic, right? Patients with other problems that didn’t get care, or their care was delayed, whatever it may be. So those are the kinds of things we’re expecting, but we haven’t seen a lot of it yet. That’s really what’s top of mind for everybody. And then there’s the whole issue with some of the Supreme Court decisions, but that’s a topic for another day. People are obviously concerned about that as well.

Kevin Pho: All right, so let’s jump straight into your latest KevinMD article, titled “Malpractice may be negative, but its data can generate positive results.” Now, for those of you who get a chance to read it, just briefly share why you decided to write it, and walk my audience through it.

David L. Feldman: Sure. So actually, Kevin, this came about when I was asked by the American Hospital Association to give a webinar around teamwork. There’s a great part of the AHA, the Center for Innovation, that does teamwork training, TeamSTEPPS, which is something that our audience is probably familiar with. And they asked me to give a talk about that, and I’m thinking, what’s the relationship between teamwork, communication, and malpractice? And I put together a talk focused on this, and then that was the impetus for writing this article.

So although the article title talks about the positive side of malpractice, the focus really is about communication, the two types of communication: obviously, communication with patients and communication with other providers. And how do we learn from our practice cases about ways that we can improve in both of those areas? Because they’re both very significant. And that’s really what this article goes into, all the data. And there’s lots of data now about how communication and teamwork can be impactful in care, and of course in malpractice itself.

And, Kevin, I’d like to start this discussion with one of my, and I mentioned this earlier, one of my core passions, around mutual respect. And I think that’s really at the core. When I talk about creating a culture of safety, the very first thing we talk about is mutual respect for all the people around you, patients and other providers. And that is so important and is becoming increasingly more difficult with the kind of environments that our clinicians are working in now, with COVID, in the middle of this pandemic still. People use the term burnout like it’s common language already.

So it makes it even harder for us to focus, because when we’re under pressure, our personalities change. That’s just human nature, right? And we all learn this in Psychology 101. Our instinct when we’re under stress is fight or flight, and neither of those techniques is very good at resolving conflict or talking with both patients and other providers.

So I think the idea is, what’s the data around our interactions with each other? And there’s some very interesting data from Vanderbilt’s program called CORS, the Co-Worker Observation Reporting System, which gives opportunities for any clinician to report a bad interaction with any other clinician, a dozen times: doctors, nurses, allied health providers, and so forth. And the interesting data shows that when they looked at all of these types of reports, many of them were about disrespectful behavior.

And furthermore, there’s interesting data that actually relates that directly to outcomes. So they used surgical outcomes, because it’s easy to look at NSQIP. I think most of your audience is familiar with the National Surgical Quality Improvement Program, really the gold standard in risk-adjusted morbidity and mortality after surgery, with millions of cases in this system. It’s run by the American College of Surgeons. And they looked at time zero and all the surgeries after that, but they looked at the 24-36 months before time zero, the time of the operation, to see the number of reports, unsolicited reports about that surgeon from other co-workers. And those that had more reports had worse outcomes when they looked at the surgery afterwards.

Now, I think it’s easy for all of us. This is all retrospective, so it’s an association, not cause and effect, but I think all of us can imagine why that might be. There’s lots of literature, in the nursing literature, the term “silence kills,” right? When nurses are afraid to say something because they’ve been berated by a physician, they don’t say anything until it’s too late, and then you’ve got problems with failure to rescue and all these other things. So that data is now very clear about why communication and the ability to be respectful of one another are so important when it comes to patient outcomes.

If we take the other side, about how we communicate with patients and the respectfulness toward our patients, I had a mentor, a plastic surgery mentor, who once told me that when you talk to patients about complications before surgery, it’s informed consent; when you talk to them about it afterwards, it’s an excuse, right? So there has to be, and people use the term disclosure. I really don’t like that term, because it implies a one-time thing, and really communication is a spectrum. It’s a continuum from the time you first interact with patients, during the encounter, whatever that health care encounter is, and then afterwards, to make sure that patients feel like we are really doing everything we can.

And there are some newer techniques, shared decision-making, which really attempts to understand what the patients really want out of this encounter. I think that’s critical in making patients feel like you are working with them to do the best you can. So when things do go wrong despite our best efforts, and it happens, we can’t prevent all adverse events, patients understand that you’re doing everything you can, you’re working with them, you’re talking with them and their families. So I think that’s critical.

And the data on malpractice from Vanderbilt goes back 15 or 20 years, same idea: looking at unsolicited patient complaints, and then from time zero, bad outcomes, more lawsuits. And we all can imagine why that might be. So there’s lots of data about this, both in terms of outcome data and in the malpractice world, to show us how important communication and teamwork are with patients and with our co-workers.

Kevin Pho: So I want to touch on what you mentioned about the disrespect that sometimes happens among colleagues and its relationship with malpractice and liability. So just to illustrate that point, so that we’re clear, what are some examples or stories of this disrespect that is showing up in the data, that can occur between colleagues?

David L. Feldman: Yeah, so being a surgeon, I always like using surgical examples, right? And one of the things that some of the papers published on this will say is that the doctor said, “Look, we’ve done this operation before,” when the nurse goes to do the timeout. I think most of us know what a timeout is. It’s become a routine part of any pre-procedure preparation, if you will. But there are timeouts, and there are timeouts.

And imagine a surgeon says, when the nurse said it’s time to do the timeout, “Well, we’ve done this operation before. We don’t really need to go over this again. Let’s just move on and not waste any time.” Now, that may sound sort of innocent, but that really is disrespectful. The nurse is trying to do what he or she knows is the right thing, because there’s evidence to show that doing this kind of thing will actually prevent errors, improve care, and make things more efficient. And for the surgeon to just say, “I’m sorry, we don’t need to do this,” is disrespectful to the nurse, and really to the system. And I think that’s a good example. And then what will happen: The next time, the nurse will be afraid to say anything. They won’t even bother, and then there’s no timeout, and then bad things can happen. So I think that’s really a typical example of the kinds of things.

And then there was an example once where a doctor was calling a nursing station to find out about a patient, and there was no clerk sitting at the desk. The clerk was at lunch. So the phone’s ringing and ringing and ringing, and then a nurse happens to walk by and, out of the goodness of his or her heart, picks up the phone and says, “Hello,” and the surgeon just lambasted this nurse: “How come nobody’s answering the phone?” Of course, the nurse isn’t the person sitting at the desk, and it just doesn’t help anything.

So two things result from that. One, the doctor needs to know that it’s not helpful to start yelling at some person who happens to be walking by. But then we really ought to provide coverage for that desk if somebody’s out for lunch, right? Some things we can fix. I used to say, when I was in practice, there are two things we can’t fix as individuals. One, we can’t fix the parking situation in Brooklyn, New York. No way we’re going to do that. And two, we can’t fix the Medicare fee schedule, at least not the two of us, right? But there are things we can fix.

So there has to be a balance between making clinicians, and in general doctors and clinicians, feel like we’re doing everything we can to optimize the environment they’re working in, but recognizing there are certain things that are just part of life, unfortunately, that will get people frustrated and upset, and we can’t fix them all. And yelling at people or being disrespectful really doesn’t help anything, unfortunately.

Kevin Pho: So you made clear the connection between the data on poor communication and its connection with malpractice. Now, in terms of next steps, let’s say we have clinicians who are disrespectful to each other and clinicians who don’t communicate as they should with patients. So how do we address these issues? Are there special programs that we send people to? So how can we correct some of these communication issues?

David L. Feldman: Now, that’s a great question, Kevin. And the fact is that, again, the folks at Vanderbilt have a very well-defined program to really address this the right way. You need to have really what looks like progressive discipline for most employees.

And if you ask most doctors, and I think we all know the world is changing for physicians, many physicians are now employed. I think recent AMA data would suggest more than half now are actually employed, rather than the old model of an individual doctor on his or her own. And yet, when you ask doctors, “So who’s your boss?” most of them don’t really feel like they have a boss. They feel like they’re their own boss. And yet the rest of hospital employees and health care employees are employees, and there are progressive discipline policies when people act out, when they act disrespectfully. So we need something that’s uniform across the board, so that doctors are held to the same standard as everybody else.

And that means, typically, when something goes wrong like this, when somebody’s disrespectful, that somebody holds them accountable for it, and makes them respond, and confronts them with it and says, “You know, it was this incident.” So they talk about this coffee cup conversation, right? So there needs to be a group of people who deal with these things. They’re not pleasant to deal with: to call this physician up, have a meeting with them, and say, “Listen, we heard about this,” and just have a coffee cup conversation, they call it, just to let them know, sort of, it’s on the radar, that somebody said that you really acted disrespectfully. Nothing gets written, nothing gets reported, just a coffee cup conversation the first time. But like any other reasonable progressive discipline, if it keeps happening, there has to be some consequence to that.

So what kinds of things can you do? Look, doctors are human beings, nurses are human beings. I used to say to a PA that I work with, during the timeout, I would say, “Look, if you see me doing something that looks kind of funny, I need you to bring that up to me, because, look, you’ve done a lot of these operations with me before, and it may be that this patient has something a little different and that’s why I’m doing it. But it may be that I was up all night with a sick child, or I had a fight with my wife before I came here. I’m a human being, and I may be distracted and doing something that probably isn’t the right thing to do. I need you, as part of our team, to tell me that something looks funny and not be afraid to bring that to my attention,” right?

I think that’s really so critical, that whole teamwork idea of having backups and letting people know that doctors are human beings and sometimes we need help. Do I have to say this in 2022? And we should provide resources for people to help. Look, the fact is most doctors and nurses together actually do act respectfully, so we’re not talking about a large group of people. But like anything else, a very small number of them can really poison, and that’s the term people use, poison a culture. That’s what we have to really be able to get at.

Kevin Pho: We’re talking to David Feldman. He is chief medical officer at The Doctors Company. His latest KevinMD article is titled “Malpractice may be negative, but its data can generate positive results.” David, what are some of your take-home messages that you want to leave with the KevinMD audience?

David L. Feldman: Sure. Again, I think respect and good teamwork and communication are so core to health care. And as a byproduct, forgetting about the malpractice to begin with, it’s just a good way of practicing medicine, but it will protect you in many ways from malpractice. And I think it’s even harder now than it ever has been, but we shouldn’t be afraid to get help, both from colleagues and from the systems that we work in, so that we can do everything we can to make it an easier environment for all of us to work in, so we can be respectful to one another and to our patients, and keep patients part of our team. Patients really are part of the health care team as well.

There are lots of great tools now. One of the positives, and you and I talked about this in a prior podcast, is the benefits of telemedicine, right? Imagine you can keep patients and families involved. Even if their people have to work full time, can their family members participate using an iPad during rounds, right? Those kinds of things. There are so many new opportunities that have become ubiquitous that I think we can use those tools in a way that can be helpful to really improve care and reduce our malpractice risk.

Kevin Pho: David, thanks again for coming back on the show and sharing your time and insight.

David L. Feldman: My pleasure, Kevin. Pleasure, as always.

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