I don’t know any physicians who aren’t worried about being sued. It is unfortunately very common in today’s world, with some specialties like neurosurgery and obstetrics disproportionately experiencing higher lawsuits. The fear of litigation is not benign, and health employers need to reduce litigation and better support staff.
Recently there has also been a trend with the so-called “nuclear verdict.” These are very costly jury verdicts that can devastate a physician and even a hospital system. In one recent birth injury case, the jury awarded the plaintiff $108.6 million. These astronomical amounts can be especially problematic for smaller or underinsured hospitals.
What is missing from this modern milieu of litigation is a holistic response from health systems. Risk managers and chief legal officers should be laser focused on the prevention of lawsuits. Instead, health systems are just increasing their coverage limits with higher amounts and multiple insurance contracts.
There are some proven methods to reduce litigation. We should all be clamoring to prevent medical malpractice and its associated personal and societal impacts. Here are some suggested improvements:
1. Track adverse outcomes
A recent publication from the Office of Inspector General of the U.S. Department of Health and Human Services found that nearly half of patient harm events went unrecognized by hospitals. Making care safer is difficult if hospitals cannot even identify when adverse events are happening.
Concrete solutions: Develop robust reporting systems for medical errors and near misses. Encourage staff to use these systems regularly. Actively discourage retaliation for reporting issues.
2. Prevention of adverse outcomes
Equally important to identifying medical errors is making sure we don’t repeat them. There are a variety of tools that can assist with reduction of errors as well as shifting culture to engage and support clinicians in patient safety efforts.
Concrete solutions: Help staff feel empowered to speak up and design solutions. Maximize use of IT systems, especially in areas like pharmaceuticals and drug dosing. Incentivize participation in reviews of near misses, morbidity and mortality conferences, and interdisciplinary sharing of information.
3. Document appropriately
It is estimated that 20 percent of medical malpractice cases are related to documentation. Shockingly, the Accreditation Council for Graduate Medical Education (ACGME) has no formal requirements or curriculum regarding medicolegal education. In today’s litigious environment, risk managers should be providing targeted, pre-emptive education to all clinicians and trainees on a routine basis.
Concrete solutions: Provide regular, ongoing teaching to all staff on appropriate documentation. Identify low performers through individualized review of charting and assist those staff.
4. Disclose and apologize after medical errors
Patients say they are less likely to sue if given an explanation or apology. It turns out that telling patients the truth and fully apologizing indeed reduces litigation. Some states have laws that protect the apology and disclosure; these laws should be utilized by risk managers to their full extent.
Concrete solutions: Develop robust risk management systems that promptly address all serious patient safety errors. Programs like CANDOR and Communication and Resolution Programs (CRPs) provide an excellent framework for hospitals looking to improve their response to errors. Encourage lawmakers to pass legislation that protects a full apology.
5. Address disruptive physicians
Unprofessional behavior doesn’t only create an unpleasant work environment, it can also increase rates of medical malpractice. Programs to address problematic behaviors in physicians have shown promise to reduce malpractice claims and litigation costs.
Concrete solutions: Identify disruptive staff promptly and offer a structured program to provide support and education. If behaviors do not improve, hospitals should be prepared to sanction or remove offenders.
Not all these interventions are easy to implement. All of them require an institutional commitment to promote higher quality and safer care. But with the right tools, we can reduce medical errors and medical malpractice litigation. Those are worthy goals for any hospital.
Colleen Naglee is an anesthesiologist.
