Op-Ed: Addressing Avoidable Malpractice Claims Risk
By GERALD B. HICKSON, MD
Reject the Myths and Look in the Mirror
When physicians reflect on the U.S. medical malpractice system, some throw up their hands declaring the unfairness of it all. Many assert the drivers of claims are challenging patients, practice specialty ("Everyone in my field gets sued."), or "those lawyers." With a degree of resignation, others accept that getting sued is just a cost of practice; while a few, especially in Nashville, land on that old country music standard: "If it weren't for bad luck I'd have no luck at all ..."
The challenge is that such reasoning diverts attention from the reality that medical professionals can influence their own claims risk. Professionals need to pay less attention to anecdotes and political rhetoric and more to the evidence.
The reality is that malpractice claims are not randomly distributed. A small subset of physicians - 2 to 8 percent - by specialty account for a disproportionate share of suits and all malpractice-associated cost. Unfortunately, claims risk also is constant over time; high risk today equals high risk tomorrow.
So why do certain clinicians stand out? Studies asking "why" reveal the powerful relationship between clinicians' interpersonal behaviors, outcomes, and malpractice risk. High-risk physicians generate three times as many unsolicited patient complaints as their low risk colleagues. Patients describe high-risk clinicians as poor communicators, unavailable, and disrespectful towards patients and other healthcare team members. It is not hard to recognize how such behaviors contribute to litigation risk. In the face of any unexpected outcome, unhappy families are far more likely to pick up the phone and seek legal help.
But it is more than just making patients unhappy. Physicians who model disrespect are also associated with more avoidable outcomes and medical errors. When a physician is rude to nurses, respiratory therapists, and/or other clinicians, those team members may be less likely to speak up or ask for help when they observe changes in a patient's status. The research basis for these assertions is scientifically sound ... but more important ... the findings just represent common sense.
When clinicians who model rude behavior walk into a unit, they can negatively impact the performance of others. How can anyone remain focused on their work while simultaneously having to monitor a physician who at any moment may 'blow up?' Studies also link disrespectful behaviors to a host of surgical complications, from deep wound infections to respiratory failure. It turns out that the more complex the surgical procedure, the greater the impact of unprofessional behavior on outcomes that depend on reliable team performance.
It is important to put research findings into perspective. Remember, the vast majority of surgeons model respect toward others. They walk into an OR, model respect, promote trust and consequently team performance. On the other hand, a few walk in and bring something very different. In what kind of environment do you want your next surgical procedure performed?
Understanding why some physicians are associated with extraordinary risk is important, but more essential is having a plan. The good news is that patients, families, and other medical staff are uniquely positioned to observe and report episodes of unprofessional behavior. If a hospital wants to hear and act, patient and staff observations can be documented, coded, and aggregated to identify physicians whose behaviors undermine the safety culture.
Physician peers can be trained to share complaint data, including local and national specialty-specific comparisons, with their high-risk colleagues. Results of over 1,500 interventions - beginning first at Vanderbilt in 1998 and now including clinicians in more than 130 hospitals - reveal that most (75 percent) high-risk clinicians respond ... and complaints, claims, and malpractice costs fall. Our experience has taught that most of these physicians are just not aware. Behavior can change, but only if other professionals in partnership with hospitals or their medical groups collect and share data in a stepwise manner designed to support professional accountability and patient safety. Unfortunately, a small subset will not respond, which necessitates authority-based interventions directing physical and/or mental health screening and/or loss or restriction of privileges.
Our system for medical dispute resolution will never achieve the same precision as we see with a well-designed randomized control trial with a level of confidence of 95 percent or higher in the results. Doctors will have new war stories to tell; I have my own if you would like to hear. That said, sharing stories and focusing on all those external factors that conspire to create risk distracts from the evidence. Professionals can influence their own claims experience and in the process promote medical care that is both kinder and safer.
Gerald B. Hickson, MD, is Sr. Vice President for Quality, Safety and Risk Prevention and the Joseph C. Ross Chair in Medical Education and Administration at Vanderbilt University School of Medicine. Widely published, he has spent more than 25 years researching why families choose to file suit, why certain physicians attract a disproportionate share of claims and how to identify and intervene with high-risk physicians.