Malpractice: Primary & Secondary Prevention

Part art, part science delivered by imperfect humans and impacted by hundreds of variables from a tiny protein on a gene to an individual's age and socioeconomic status - the practice of medicine is anything but predictable.

In a high-stakes field where outcomes aren't guaranteed and emotions run extremely high, perhaps the question isn't why a malpractice suit is ever filed ... but why it doesn't happen more often? Two experts with State Volunteer Mutual Insurance Company (SVMIC) recently made time to speak with Medical News and share some insights to help minimize risk of litigation by instituting best practices on the front end, as well as steps to take in the event a claim is asserted.

Primary Prevention

"Based on the ongoing analysis of our internal claims for malpractice trends and risk issues, as well as review of national data such as the PIAA data sharing information, we focus on four primary areas when educating our policyholders on patient safety and risk mitigation - communication, documentation, systems/processes, and medication management," explained Shelly Weatherly, JD, vice president of Risk Education and Evaluation Services for SVMIC.

Shelly Weatherly, JD

"Decades of research tends to support the fact that 75-80 percent of malpractice claims arise out of communication breakdowns," she continued. While patients and family member are naturally upset when faced with a bad outcome, Weatherly said they often express that what was more upsetting was the way the situation was handled.

Worried that anything said could be used against them, Weatherly noted the natural inclination is for physicians to run away from the situation and avoid it. Instead, she counseled, providers should "be running right towards it." She added there are ways of expressing sympathy for a poor or unexpected outcome without admitting to, or being guilty of, malpractice.

"When there's a bad outcome, the first disappointment is with the outcome, and the second one is how the physician or practitioner responds to the outcome," Weatherly said. "They get over the disappointment of the first much more easily than they do the second one."

She continued that it's also okay to say 'I don't know how this happened,' as long as it's followed up with 'but I'm going to investigate and get you some answers.' Weatherly added, "That goes a long way to diffuse anger."

Effective communication, Weatherly continued, begins long before a problem arises. "Establishing rapport with patients and maintaining it in the face of an adverse outcome is crucial for malpractice avoidance," she said. "Rapport is established by building trust and creating good first impressions and is maintained with honest and open communication at all times.

While appropriate communication is paramount in malpractice avoidance, there are a number of other areas that are also critical. "Maintaining a well-documented medical record is vital both from a patient care and risk management standpoint," she said. Medication errors also account for a significant percentage of medical liability claims. A discussion about proper dosing and potential risks, benefits, side effects and alternatives should occur on the front end, be periodically reviewed, and be documented in the medical record.

Weatherly added that ineffective systems and processes could also contribute to poor outcomes. "At SVMIC, we continue to see failure to diagnose as a number one claim," she said. "Most often, the problem doesn't lie with the physician's lack of clinical skills or abilities, but rather is the result of a breakdown in office processes."

Secondary Prevention

"Not every bad outcome is malpractice. We would like to live in a world where perfect happens every time, but unfortunately, that's not realistic. There are risks and benefits to every modality a physician chooses," said Kenneth W. Rucker, JD, vice president of Claims for SVMIC.

Kenneth W. Rucker, JD

Echoing Weatherly's sentiments, he noted, "A natural tendency for many physicians is to avoid the patient and family when there is a disappointing outcome." However, he continued, "Many times a patient or family member seeks the advice of an attorney when they feel they have not had their questions adequately answered."

Although encouraging open lines of communication on the front end, he noted, "Physicians have different levels of communication skills. Sometimes patients hear what they want to hear. We find physicians feel like what they said was misconstrued." He also cautioned providers not to float theories or possibilities while trying to figure out why an unanticipated event occurred.

"During this time, it is important not to speculate, as speculation often leads to incorrect information being conveyed, which will have to be corrected and may also damage your credibility with the patient or family," Rucker said. "Expressing empathy for the circumstances is appropriate, but one should be careful not to use the words 'error' or 'mistake' unless one has actually occurred."

He added that even though steps could and should be taken to avoid a claim being asserted, "most providers will face an allegation of malpractice during the course of his or her career." Whether or not a physician believes such a claim has merit, the game plan changes once a patient or family reaches that point. At this juncture, Rucker noted, "Plaintiffs' attorneys will go back and look with a microscope at everything that was done with the benefit of hindsight."

Rucker continued, "Once (physicians) know a claim is being asserted, they need to contact their malpractice carrier in order to protect themselves under their insurance policy and also to obtain guidance as to how to proceed."

He said medical records should be secured and preserved without modification; and providers should halt independent research, which could be subject to discovery in the event litigation is pursued. He also said communication should be more guarded. "At this point, you should avoid directly engaging the patient, the family, or their attorney in dialogue." Rucker added that physicians also should refrain from discussing the issue with colleagues since those conversations could also be subject to discovery.

That said, physicians should not be hesitant to communicate with their malpractice provider. From sharing important insights into the steps leading up to the claim to simply needing an opportunity to vent frustrations, most malpractice carriers think of themselves as partners to their physician clients and are there to represent the physician's interests and help manage the entire process.

Best Practices

Shelly Weatherly, JD, vice president of Risk Education and Evaluation Services for State Volunteer Mutual Insurance Company shared best practices to put in place for malpractice avoidance. The 26-year legal veteran and frequent speaker on risk management and liability assessment outlined key steps under four primary areas of patient safety and risk mitigation.

Communications:

To Establish Rapport

Always greet the patient warmly with a smile and handshake.
Use effective non-verbal behavior to communicate attention and respect including eye contact and attentive posture.
Communicate at patient's level of understanding, use open-ended questions, and listen attentively.
Clearly state the plan of action and follow through.
Take the time to educate the patient on the nature of his/her condition, medications, treatment plan, and the expected results. Use the teach-back method to confirm that the patient understands the information given. Engaging the patient as a partner not only helps establish rapport, but also serves to better ensure compliance and encourage realistic expectations.

In the Event of Adverse Outcomes

Attend first to the patient's medical needs.
Investigate the matter promptly and openly .
Engage in a frank discussion with the patient and family making sure to avoid speculation or finger pointing.
Express a sincere acknowledgment of regret for the unfortunate nature of the event.
In the event of a clear medical error, have a full, honest and open discussion with the patient and the family followed by an apology.

Documentation:

Document clearly, completely, timely, and accurately. Make sure to include a comprehensive medical, family and psychosocial history; the chief complaint or purpose for the visit; all relevant positive and negative clinical findings; the diagnosis or medical impression; and the rationale or decision-making process for the clearly defined treatment plan.
If using electronic health records, review and correct all documentation that may have auto-populated or been carried over from a previous visit to ensure it is an accurate reflection of the current office visit assessment. Likewise, make sure all defaulting data associated with templates has been reviewed and edited to include only the information associated with that particular visit.

Systems & Processes:

In order to ensure proper follow-up for patients who require a return office visit, schedule such patients before they leave the office and provide a reminder card with date and time.
Physicians should review all no-shows and cancellations, especially for all sick visits, to determine appropriate follow-up action.
Implement an effective tracking method for all lab tests and diagnostic imaging. If a test or consult is important enough to order, it's important enough to track.
Notify patients of all test results and instruct them to call the office if they have not received the results within the expected time frame.
To promote continuity of care, implement a system to ensure abnormal test results are clearly flagged for follow-up at subsequent visits.
If using a tasking system for interoffice communication, be sure to have a surrogate reviewer assigned to open task boxes and review messages for anyone not in the office. Educate staff that "critical values" should be communicated verbally rather than relying on tasking.

Medication Management:

Update medication history at each visit.
Review and update allergies at every visit and whenever new medications are prescribed.
Prescribe medications only after reviewing the record and do not allow staff to refill medications without physician approval.
Discuss risks, side effects, benefits of, and alternatives to, prescribed medications. Use the teach-back method to confirm the patient understands the information provided.
Closely monitor medications with a known toxic effect.
Train staff members who are allowed to administer medications to adhere to the "Five Rights"- right patient, right drug, right dose, right route, right time - and to use appropriate injection techniques.

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