By James Prudden
A review of malpractice cases involving general surgeons over the past two decades found that, in those cases where medical malpractice was alleged, the most common problems cited were:
A careful review of claims records shows that there is no shortage of possible ways to end up in court. Specific examples of malpractice pitfalls are not hard to come by, and sometimes come from surprising sources.
Take, for example, the rise of hospitalists, who theoretically keep primary care physicians (PCPs) fully apprised of their patients’ status during hospitalization. Practically speaking, however, complete communication is rare. As it turns out, interprovider communication between the hospitalist and PCP is an increasingly frequent issue in malpractice claims. A patient arrives in the emergency room with left quadrant belly pain, and appendicitis is diagnosed. The patient has chest x-rays that the radiologist reads, and the patient is cleared for emergency surgery. Incidental to the appendectomy is the finding of a lung nodule, the fact of which the PCP does not notice as it is buried on page 23 of the electronic health record (EHR). The appendectomy is successful, but the lung nodule is not biopsied and the patient succumbs to lung cancer two years later. Among the problems evident in this example is the education of hospitalists, many of whom are graduates of internal medicine residency programs but are relatively inexperienced in managing complex surgical patients and assuring comprehensive follow-up.
Another generator of malpractice claims stems from the advent of EHR systems.
“The Obama administration has provided significant financial incentives through stimulus funds for physicians to quickly adopt EHRs,” said Kevin W. Kelly, president and CEO of Medical Risk Management LLC. “The problem has been that, during the adoption period of EHRs, there are many unintended consequences that may increase malpractice exposures. The vast majority of smaller physician groups are ill-prepared—they don’t have an information technology department, they don’t have the infrastructure.”
Mr. Kelly offered two examples. First is the “all-normal” button, which a physician can click to document that the assessment was normal for all physical systems. “However, if the exam was not complete but the results were posted as ‘all normal,’ there could be significant consequences if an adverse event occurred,” Mr. Kelly said. “This could be portrayed very negatively to a jury.”
He added, “A second example is to copy and paste, or the ‘carry forward’ function. In this situation a physician can copy and reuse the exact text, but if there are multiple notations in the EHR that are all exactly the same, then the EHR record can lose credibility in the eyes of a jury. Again, that is portrayed very negatively in court.”
Proactive Approach to Risk Management
In 2003, attorneys Neil Danaher, Joyce Lagnese and Kenneth Neal, all of whom are associated with DanaherLagnese, a Connecticut legal practice with extensive experience in medical malpractice defense litigation, partnered with Mr. Kelly to launch Medical Risk Management, LLC (MRM), based in Hartford, Conn.
“As seasoned defense attorneys, we understand that most malpractice cases stem not from bad doctors practicing bad medicine but rather by administrative gaffs, communication errors, and the like,” said Ms. Lagnese. “These are all avoidable via practical risk mitigation practices.”
Even though roughly four-fifths of all cases are resolved in favor of the physician, billions of dollars are paid out in settlements that, according to Mr. Danaher, “should never have seen the light of day” (Table 1). The estimated medical malpractice payments in 2011 totaled $4.65 billion.
In 2003, with the crisis in medical malpractice liability becoming dire, MRM sought to generate strategies that would help reduce malpractice exposures and improve patient safety. The company’s goal is to create a proactive attitude toward risk management, and ultimately patient safety, and discard what hitherto has been a reactive, ineffective approach. MRM focuses on areas of high malpractice exposure and areas of emerging risk, and then teaches its clients what the company has found.
“The key to why we’ve been successful is that 70% of claims are not due to bad doctors, which means they are preventable,” Mr. Danaher said. “They are from things like communication lapses, follow-up lapses, system deficiencies, inadequate informed consent and poor patient relations—all things that we can work on, and provide education and implement practical interventions in order to reduce or eliminate them altogether.”
“We identify the 20% of types of claims that represent 80% of the malpractice losses, and we determine these high-exposure areas by specialty,” Mr. Kelly added. “We do a frequency-severity distribution analysis, and then focus our educational curriculum on those areas where the highest yield will be.”
MRM collects cartons of medical malpractice files and mines them for data, separating information out by specialty and sorting them by risk issue. The files are redacted for HIPAA purposes and then a case-based, specialty-specific educational program is created. The firm is dedicated to multimodal risk education—much of it comprising continuing medical and/or nursing education (CME and CNE)—that is delivered via a variety of media, including:
MRM sets itself apart from other medical risk management companies, such as ELM Exchange, Inc. (www.elmexchange.com) and Medical Risk Management Inc. (www.medrisk.com), by offering a greater emphasis on live, specialty-specific presentations using expert defense lawyers and practicing physicians who discuss real-life cases.
Fewer Claims, Lower Costs
MRM can point to significant successes in its decade of existence. Key performance metrics are regularly assessed by MRM, and include basic knowledge, attitudinal measures, behavior change, and claims and premium reductions.
The firm’s first client was ProHealth Physicians, one of the largest primary care group practices in Connecticut. In an interview, Jack Reed, president and CEO, and James Cox-Chapman, MD, chief medical officer and senior vice president, recounted the effect that the implementation of the risk management program had on their group, a story that they summarized in Connecticut Medicine (Jacobs L et al. 2012;76:291-297). Participant rates for the CME modules and risk management grand rounds were 98.7% or higher since their inception in 2004, and participation in focused educational efforts in high-exposure areas, such as failure to diagnose colon cancer, was 100%. More than 90% of physicians agreed that the educational efforts were worth their time or relevant to their practice, and between 93.3% and 99.5% of respondents indicated they would “somewhat” or “completely” change their practice as a result of what they had learned.
Thus, the clinicians at ProHealth Physicians were enthusiastic and successful students of the programs offered by MRM, and the resultant claims data from the years following its implementation bear this out. For instance, a comparison of the number of claims from the six years before the program was initiated (10±3.46) to the eight years after (3.62±2.13) shows an impressive 63.8% reduction in the average number of claims. The claims for failure to diagnose or treat, an area that was a focus of study for the group, were reduced by 67.9%. Meanwhile, the severity of claims, measured in dollars per physician, was reduced by 73%. Eventually, premiums fell as a result of the reduced claims. Since 2005, the gross premiums for ProHealth Physicians are down 59.7% for the specialties of internal medicine/family practice and pediatrics (Table 2). Reduced premiums resulted in an aggregate savings of about $14 million from their malpractice insurance underwriting.
“Medical Risk Management LLC has been a winner for our patients and doctors,” Mr. Reed said.
“We have about 200 physicians in our group, but we also have several hundred other providers, such as nurse practitioners and physician assistants,” added Dr. Cox-Chapman. “It is not just the physicians who are taking these courses—anyone who interacts with patients needs to take them.”
Indeed, MRM provides educational instruction for office managers and others involved in administration.
It comes as an unpleasant shock to many physicians to hear that the allegations against them will not be heard in court for two or more years as the case wends its way through the legal system, during which time they must live with a professional cloud hanging over their heads.
“Medical Risk Management LLC is constantly evaluating its educational endeavors, but the unmeasured benefit of all this is the increased confidence that comes with preparation and use of one’s resources to deal with the problem of risk management,” Dr. Cox-Chapman said. “Don’t underestimate the emotional distraction that comes with a lawsuit—there is a much higher level of confidence that exists when you are prepared.”
The savings achieved by ProHealth Physicians are extraordinary, but overall savings are a frequent by-product of the risk management programs. MRM’s client base is diverse, including large health care systems, like Hartford HealthCare; specialty-specific hospitals, like the Hospital for Special Surgery in New York City and Connecticut Children’s Medical Center; university teaching centers, like the University of Connecticut; and smaller hospitals and group practices (Box). MRM has been able to customize its programs based on practice size and need.
Ultimately, everybody wins—the culture of safety that develops from managing medical risk helps lower premiums for physicians and heightens safety for patients.
Mr. Kelly is president and CEO, Ms. Lagnese is chief legal officer and Mr. Danaher is chairman of MRM. MRM was founded in 2003 by a team of health care and legal professionals dedicated to developing practical risk management solutions for health care providers. For more information about MRM, visit www.1mrm.com.
Case 1. University of Connecticut School of Medicine
Kiki Nissen, MD, associate dean for graduate medical education and professor of medicine at University of Connecticut School of Medicine (UCSM), oversaw the institution of a risk management curriculum, developed by Medical Risk Management, LLC (MRM), together with UCSM, for UCSM residents (there are approximately 630 residents at UCSM). A review of the experience was published in the Journal of Graduate Medical Education (Nissen K et al. 2010;2:589-594).
The multimodality program relied on live lectures, web-based video modules, and emailed publications designed to educate residents about medical risk management. Pre-tests and post-tests were administered, and participant satisfaction was measured. The entire curriculum spanned two years.
Of survey respondents, 97% found the content to be relevant to their specialty, and 95% agreed that the live sessions should be held annually. When asked if they would change their practice based on what they had learned in the program, only 2.5% said not at all—nearly 70% said mostly or completely.
“The program was extended to include fellows in 2011,” Dr. Nissen said. “The medical risk program is called the Patient Safety Curriculum.”
The improvements in reduced malpractice claims are being tracked.
Case 2. Connecticut Children’s Medical Center
Martin J. Gavin, president and CEO, and Trisha Farmer, director of risk management, Connecticut Children’s Medical Center, described the medical risk educational program initiated for the medical center, which has 187 beds and employs 160 physicians in 26 subspecialties.
“We were looking at providing much more standardization in our approach to medical education,” Mr. Gavin explained, which was one impetus for starting the MRM program five years ago.
The program entailed attending a live presentation once a year, and viewing two online web modules each year.
“We have seen a dramatic reduction in claims, due in large measure to the work done by this program,” he said.
The attitude of the physicians toward the process also was very positive.
“Physicians are very data-driven people, so when they are shown data that can help them improve their exposure, and also improve patient safety, they quickly accepted the program and got on board with it.”
“The program really changed our culture,” Ms. Farmer added. “We are a culture of safety and a culture of risk awareness, and all of the educational efforts have made us more aware. And this is a program that goes well beyond the physicians—we have had 850 people go through the program, including allied health professionals and administrators.”
“This program protects the physicians,” Mr. Gavin noted. “It protects them and helps them not end up in court, but it also is in the best interests of their patients and families. It puts the physicians back firmly where they should be, which is working as a caregiver and not a risk manager.”