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The 'Gray Area' of Malpractice


Take steps to avoid having tort claims elevate to a full-blown lawsuit

Tort liability and medical malpractice risks continue to be high-profile topics that are on every physician's mind. Fortunately, according to the Physician Insurers Association of America, 61 percent of malpractice cases closed in 2001 were dropped or dismissed; only 1 percent was found in the plaintiff's favor. Still, the risk for malpractice suits remains a concern for physicians.

As it should. Physicians concerned with avoiding litigation need to realize that tort claims extend well beyond the range of formal lawsuits. In other words, there is what I call a "gray area" in which physicians have the opportunity to take steps to avoid having patient dissatisfaction, an accident, or the discovery of an error elevate to a full-blown lawsuit.

It is here that risk management initiatives can augment quality improvement efforts and reduce the risk of a lawsuit.

Risk management applies to both clinical and nonclinical risks. Nonclinical risks include, for example, tripping hazards due to ice on the sidewalk outside your office. When an injury occurs there may be a need to cover medical expenses as a matter of good faith to prevent subsequent litigation. Because of the unpredictability of nonmedical personal injury claims, it's best to carry an umbrella liability policy to cover claims that proceed past good faith settlements into litigation. Beyond this, nonclinical risk management can be addressed through client-friendly practices common to well-run businesses (e.g., ice-free sidewalks, wheelchair access, an accessible and comfortable waiting room).

Nonclinical issues also overlap with service quality and affect your patient satisfaction and referral rates. Studies of consumer behavior show that each satisfied patient is likely to tell one or two people about his experience. Each unsatisfied patient will likely tell 10 or more people and be prone to sue you later over medical mishaps -- and therefore feeds directly into your clinical risks.

Clinical risks have to do with service and standard-of-care issues; the latter are especially critical for a generalist performing a procedure that is also performed by specialists. Long gone are the days when board certification in a specialty was enough to shield a physician from scrutiny and second-guessing. Generalists whose practices include certain high-risk areas --  for example, family medicine doctors delivering babies -- make more attractive targets for plaintiff attorneys.

The most effective way to address clinical risks is to form a dedicated team that meets regularly to address them. Members of this team are generally drawn from practice administration (the hospital risk manager or office general manager), quality management (a nurse coordinator for quality management), and clinical risk (usually a physician). This clinical risk committee (CRC) should meet regularly -- weekly if possible -- to address service issues, potential claims, and actual claims. 

Problems to address

Service issues are those matters that aggravate and annoy patients, but do not constitute a basis for a malpractice claim. Generally, these relate to communication issues in which patient expectations have not been met. Families can become remarkably angry when they are expecting one physician to cover a loved one's medical care and a colleague providing call coverage shows up. This can be especially true in surgical cases. Patients also get upset over extended waits and mishandling of scheduled appointments and procedures. Equipment downtime and overbooked appointments can cause lengthy waits or cancellations of scheduled care. As a result, some patients may be prone to sue at the first complication.

Potential claims -- also known as "potentially compensable events" -- consist of events identified by nursing and medical staff, or by a letter of inquiry from a patient raising questions about the course of care and its outcome. Triggers for these concerns might include a delayed phone notification of a lab finding to a malfunctioning piece of equipment to a standard-of-care issue.

Generally, medically knowledgeable people can easily identify potential claims; they intuitively understand that certain situations may lead a patient to sue. Besides the service issues addressed above, complications that affect function, especially neurological and orthopedic, or complications perceived as avoidable because of delays, are ripe targets for attorneys. For example, the chronic back pain patient with lumbar disc disease who has a neurologic deficit after back surgery is prone to sue. The plastic surgery patient who dislikes the cosmetic result of a rhinoplasty is yet another example.

Delayed diagnoses and care abound in myocardial infarction and stroke cases. In such cases the physician will know, for example, that the admission time to angioplasty was excessive, or that an opportunity to give thrombolytic therapy for a stroke passed because the CT scanner was down. While a claim of malpractice may not hold up in court, the fact that a physician is aware of potential claims is useful. It prompts the CRC to gather facts of the case while they are still fresh in the minds of those involved and to identify quality management issues that could be improved. Such "near misses" should trigger an internal quality review where a process is broken down into its component parts and local clinical experts identify root causes of the problem.

Actual tort claims materialize as a written notice that a patient intends to sue. This notification may come from an attorney, or directly from the patient, in what is known as a pro se claim. (The pro se claim is less worrisome because it suggests that the patient cannot convince an attorney of the merits of the case.) 

While tort claim notification laws vary from state to state, there is generally a limited time period during which a tort claim can be filed. If the deadline for notification of intent to sue passes, the ability to sue also passes. Once timely notification is given, the patient's attorney can take the time necessary to investigate the merits of the case for litigation. During this period between claim notification and formal filing of a lawsuit, the CRC has the opportunity to mitigate the claim, either by persuading the opposing attorney that the case lacks merit or recommending settlement.

Maintaining confidentiality

Efforts at claim mitigation, whether for potential or actual claims, need to occur under a mantle of confidentiality. Near misses should be addressed formally in a quality management program of the clinic or hospital. States generally shield quality management activities from attorney discovery because of the overriding interest in promoting quality improvement in healthcare.

Claim mitigation in actual tort claims focuses more particularly on assessing the exposure of the physician to an adverse judgment in court and deciding how aggressively to defend against a claim --deny it or offer a settlement.

Physicians need to feel confident in their ability to discuss potential pitfalls of the case without fear of discovery from a plaintiff's attorney. The only way to do this effectively at this stage is to have attorney-client privilege protect the discussion from discovery. Therefore, a risk committee must have an attorney involved; submit all tort claim notices from patients or patient attorneys to your practice's own attorney.

Your attorney can write a letter to the CRC asking that it investigate the merits of the case as part of the attorney's own investigation. At that point a state of attorney-client privilege exists and all discussions are considered confidential from a legal standpoint.

Make sure you have your attorney craft the details of this letter so it meets your own state's requirements. If done properly, all materials and discussions generated by the risk committee's own activities are protected from discovery. Lessons learned can be handed off to quality management personnel as well, in a seamless way that preserves confidentiality.

Do not mistake this confidentiality as an attempt to game the system. The CRC, by identifying service issues and potential claims, provides a real service to the quality management process and expedites the identification of root causes. With all the focus nationally on the reporting and prevention of physician errors, the CRC remains one of the best ways to proactively address the issue.

An ongoing process

At any stage of clinical risk management, the CRC coordinates and delegates tasks related to claims mitigation. The patient advocate can address service issues with input from the risk manager and clinical risk investigator. Likewise, the patient advocate will often have records of conversations or complaints that illuminate the root causes of a patient's discontent and can pass this on to the clinical risk investigator.

The clinical risk investigator determines the technical merits of any malpractice claim. In this capacity he acts as an internal expert witness, synthesizing the expert opinions of specialists germane to the case. The physician acting in this capacity does not need to know the nuances of every specialty involved but will be competent to interview the relevant experts.

The CRC, by examining both service and technical issues related to quality of care can pass summaries of its findings to the quality management coordinator for action. This engages continuous process improvement that, over time, reduces major liability risks. Quality management efforts complement the CRC and expedite investigations by providing results of peer review reports and critical incident investigations.

Working together, the CRC and the physician clinical risk investigator can minimize malpractice liability exposure while improving quality of service and patient outcomes. Every medical practice should consider forming its own CRC as a way of actively managing liability risks. The payoff in terms of reduced tort claims, improved practice reputation, and regulatory compliance is incalculable.

Gerard Steve Rebagliati can be reached at

This article originally appeared in the November/December 2003 issue of Physicians Practice.

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