In a previous column (“The Executive’s Role in Malpractice Cases,” Healthcare Executive, May/ June 2008), I noted that despite impressions to the contrary, it is anger and not greed that drives most malpractice lawsuits. Since that time, I have continued to serve as an expert witness for both defense and plaintiff attorneys. Although there are still too many instances when clinical mistakes are denied, timely disclosures and apologies are not made, results of investigations are not shared and compensation offers are not extended, more hospitals are taking a less adversarial position.
We are aware of the following:
Disturbing Findings in a Recent Study
A special article in the March 28, 2019, issue of the New England Journal of Medicine titled “Changes in Practice Among Physicians with Malpractice Claims” noted that over 480,000 physicians were responsible for almost 69,000 paid claims from 2003 through 2015. The article cited that 89 percent had no claims, 8.8 percent had one claim and the remaining 2.3 percent accounted for 38.9 percent of all the other claims. The authors analyzed the associations between the number of paid malpractice claims the physicians accrued, the number of exits from medical practice, changes in clinical volume, changes in geographic relocation and a change in practice group size.
The article noted that the “overwhelming majority of doctors who had five or more paid claims [continued to practice]. And they also moved to solo practice and small groups more often, where there’s even less oversight, so these problematic doctors may
produce even worse outcomes.” Although the physicians who accumulated more claims were more likely to stop practicing, over 90 percent who had at least five claims were still in practice and twice as likely as those with fewer claims to go into solo practice.
Nearly one-third of the claims were related to patient deaths and close to one-half were related to major or significant nonfatal injury. Because of this, it is reasonable to assume that a substantial proportion of these claims, which were either settled or went to trial, involved a hospital as a co-defendant with a “deeper pocket” (i.e., more insurance coverage than the physician). Fortunately, the creation of the National Practitioner Data Bank has presumably reduced the ability of incompetent physicians to move across state lines to avoid detection. However, the NPDB is not flawless and state medical boards vary in their level of performance
Based on my experience as an expert witness in over 25 states, I can confirm that there are remarkable performance variations in the following:
Those of us in executive positions have an inherent responsibility to ensure the safety of patients and to improve the quality of care provided by our organizations. Our clinical colleagues, governing bodies and the communities we serve must demand no less. Key steps for hospital executives dedicated to reducing malpractice include:
Everyone who has the privilege of working in a hospital must be a patient advocate, regardless of his or her position, but members of senior management should be particularly committed to fully supporting medical staff efforts to identify and reduce physician malpractice. Our patients will obviously be the ultimate beneficiaries.
Paul B. Hofmann, DrPH, FACHE is president of the Hofmann Healthcare Group and co-editor of Management Mistakes in Healthcare: Identification, Correction and Prevention, published in 2005 by Cambridge University Press. Dr. Hofmann coordinates the ACHE annual ethics seminar; programs also can be arranged on-site. For more information, please contact ACHE's Division of Education at (312) 424-9300 or visit ache.org.
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