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:
- Medical errors are reportedly the third leading cause of death in the U.S.
- Most preventable medical errors are not the result of individual ineptitude, but are instead acts of omission or commission by fallible people (physicians,
nurses, pharmacists and others) or are due to a system failure.
- Clinically competent physicians (often along with the hospital) are sometimes sued following an adverse clinical outcome attributable to poor communication skills and a lack of responsiveness to patient/family concerns.
- Many patients are unaware of preventable errors that occur, such as hospital-acquired infections.
- Some physicians who do not produce optimal clinical outcomes avoid lawsuits because of a long relationship with their patients and an exemplary bedside manner. According to a Feb. 20, 2019, report by the nonprofit Physicians Advocacy Institute, 44 percent of physicians were employed by hospitals in January 2018, compared to just one in four in July 2012, increasing the potential liability exposure for these organizations.
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:
- Formal oversight of physicians with multiple malpractice claims
- Willingness of hospitals to limit or suspend the privileges of a physician responsible for a large volume of admissions, representing significant institutional revenue
- Compliance with well-written and appropriate hospital policies
- Efficacy of medical staff credentialing processes
- Inclination of the hospital or medical staff to intercede when a physician is exhibiting physical or mental health problems
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:
- Become more vigilant, regardless of organization size. There is a misconception that rural and smaller hospitals are at a higher risk of malpractice suits. This isn’t necessarily the case. Though these organizations are vulnerable, consider the example of a prominent medical center that made headlines earlier this year when there was undeniable evidence of inexplicable and unusually bad outcomes for pediatric patients receiving cardiac surgery, which were not simply isolated incidents. Regrettably, timely action was not taken despite such evidence, and the institution along with physicians were sued.
- Strengthen your organization’s credentialing procedures, focusing on the processes for new applicants and candidates for reappointment. Give particular attention to the latter’s complication rates, other adverse outcomes, excessive lengths of patient stays and readmission rates.
- Assess unusual utilization patterns. In a Washington state malpractice case, an OB-GYN was determined to be performing an inordinate number of hysterectomies, resulting in substantial revenue for a small community hospital. Disturbingly, over 25 percent of the procedures involved women under the age of 30. Even though the majority of the resulting jury award went against the physician, 35 percent was allocated to the hospital for the medical staff’s failure to recognize and halt the surgeon’s excessive operations.
- Adopt the six measures proposed in 2017 by the ACHE and the IHI Lucian Leape Institute
- Establish a compelling vision for safety
- Build trust, respect and inclusion
- Select, develop and engage the board
- Prioritize safety in selection and development of leaders
- Lead and reward a Just Culture
- Establish organizational behavior expectations
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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