Identifying Malpractice Risks for Surgical Practices

Julie Brightwell, JD, RN, Director, Healthcare Systems Patient Safety, The Doctors Company, Part of TDC Group

The Doctors Company is able to identify key areas of risk by analyzing data on incidents and closed claims. The top allegations in surgical claims reported to The Doctors Company from 2012 through 2022 were improper management of a surgical patient and improper performance of surgery. Two primary factors contributing to these allegations were clinical judgment and technical skill—both factors that can be attributed to an individual surgeon.

When we explore the claims in more depth, however, we find that many factors frequently occurred together. Factors contributing to surgical claims are often related to assessment, communication, and documentation—which can be system errors or individual errors.

The Power to Predict: Leveraging Medical Malpractice Data to Reduce Patient Harm and Financial Loss, a study published by Candello (formerly CRICO Strategies, a division of the Risk Management Foundation of the Harvard Medical Institutions Incorporated), looked at 37,000 claims and lawsuits closed between 2014 and 2018. It found that three common factors, when present, significantly increase the odds that a malpractice claim will close with an indemnity payment to the plaintiff:

  • Failure to have or follow a policy or protocol—63 percent closed with indemnity.
  • Inadequate patient assessment—47 percent closed with indemnity.
  • Weak or absent documentation—56 percent closed with indemnity.

Although more than one of these factors is generally involved in a claim, even one factor alone can nearly double the risk of an indemnity payment. Understanding that the causes of claims are multifactorial and rarely result from individual judgment or technical skill alone can help surgeons improve outcomes by evaluating the supporting systems in their offices and operating locations.

This type of information guided us in developing our Practice Risk INSIGHT, a comprehensive assessment tool that helps members evaluate supporting systems and identify critical practice gaps that can lead to claims. In an analysis of more than 400 Practice Risk INSIGHT assessments, we found that the top system risks for physicians and surgeons involved the flow of critical information. This finding included both written and verbal communications about patients and their care.

Knowing where problems are likely to occur and which are likely to have the greatest adverse impact helps practices continually improve the timely flow of information to accurately assess, diagnose, and treat patients and avoid patient harm.

Flow of Critical Information

Most organizations have developed processes to manage the constant stream of critical information flowing through the practice. Information comes from many sources, including patient telephone calls, patient portals, referrals and consultations, laboratory and diagnostic test results, appointment scheduling and rescheduling, informed consent discussions, and documentation. Each piece represents some form of critical patient data communicated both internally and externally. To reach an accurate diagnosis and treatment plan, this critical data must be evaluated in the context of the patient’s physical exam, symptoms, and health status. When well executed, these processes typically result in safe, effective, timely, and appropriate care. Any flaws in the process, however, can collapse the entire system.

Few of the medical and surgical practices we assess routinely monitor or measure these critical communication processes. Without active oversight, compliance wanes and shortcuts and workarounds occur—which may allow unsafe conditions that can lead to mistakes.

Office and Surgical Team Collaboration

It is essential for office teams to collaborate with teams where surgery is performed and for the flow of information to be consistent and standardized. A well-run office is only a part of the system. Interdependencies exist among the office teams, teams in other locations that manage the flow of information from the office to the exact surgical location, and the OR team. When teams don’t collaborate, information may be lost or delayed, resulting in patient harm. Often, what looks like an individual error is a system error. Performing a thorough root cause analysis of errors that harm or have the potential to harm helps identify contributing factors that need improvement.

Policies, guidelines, and protocols help practices manage identified risks by standardizing procedures and creating barriers that help prevent errors and patient harm. Policies and processes that facilitate the transfer of patient data from the office to surgery location to OR team must be flawless. Verifying the correct patient, surgery, site, and side starts with the surgeon and the patient. It must be subsequently validated by each person who handles that information or encounters the patient. Standard procedures identify the steps unique to each organization. Team members will also understand where weak points in the system occur, with insights into solutions for system improvements.

Nontechnical Skills

Patient safety literature highlights the nontechnical aspects of surgical care—such as situational awareness, teamwork, communication, and leadership skills—as critical aspects of the surgeon’s skills. TeamSTEPPS® training was developed by the Agency for Healthcare Research and Quality and the U.S. Department of Defense to integrate communication and teamwork skills into healthcare systems. Studies have demonstrated that dysfunctional nontechnical skills can be the basis of technical errors and that improvements occur when these nontechnical skills are applied by the surgical team.1,2,3 

Risk Mitigation Strategies

Consider the following risk mitigation strategies to improve the flow of information, standardize policies and protocols, and develop nontechnical teamwork skills:

  • Analyze how information flows from your practice to the location(s) where you perform surgery. Ask how that information is tracked and ask for data on how well the process works.
  • Establish policies in your practice that direct the seamless flow of information to the location where patients receive care. Audit those processes regularly to ensure that the correct information is available for surgical procedures.
  • Ensure that all written policies and protocols are designed to accomplish the purpose of standardizing processes to prevent patient harm.
  • Ask how behaviors are monitored to ensure that policies are consistently followed and if policies are revised if a better way is discovered.
  • Assess your role within your teams and hone your nontechnical skills by participating in TeamSTEPPS training and simulation drills to improve the whole team.
  • Create an atmosphere of psychological safety so that your teams are open about concerns that could initiate a cascade of error.
  • Understand where errors occur in your office and in your surgical locations by participating in improvement projects; peer and case reviews; and reporting systems analyses, such as incident reports, sentinel events, and complaint logs. Use that information to continually improve processes and revise policies.
  • Survey your teams periodically and ask them the following questions (based on AHRQ’s Perioperative Staff Safety Assessment):
    • How could the next patient be harmed?
    • What can be done to prevent or minimize this harm?
  • Share information with your teams when near misses occur and highlight the potential for harm and the need for change.

Consider partnering with us on a comprehensive practice checkup to help you identify gaps and potential risks. Learn more about our Practice Risk INSIGHT and Guided Risk Self-Assessment, or contact us at (800) 421-2368 or by email for more information.


  1. Jung JJ, Yule S, Boet S, Szasz P, Schulthess P, Grantcharov T. Nontechnical skill assessment of the collective surgical team using the Non-Technical Skills for Surgeons (NOTSS) system. Ann Surg. 2020 Dec;272(6):1158-1163. doi:10.1097/SLA.0000000000003250
  1. Stahel PF, Cobianchi L, Dal Mas F, et al. The role of teamwork and non-technical skills for improving emergency surgical outcomes: an international perspective. Patient Saf Surg. 2022 Feb 8;16(1):8. doi:10.1186/s13037-022-00317-w
  1. Robinson D, Beaumont G. Making surgery as safe as it should be: a qualitative study. Am J Med Qual. 2023 Sep-Oct 01;38(5):238-244. doi:10.1097/JMQ.0000000000000139

The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider considering the circumstances of the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.

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