Identifying Malpractice Risks for Surgical Practices

Kim Hathaway, MSN, CPHRM, Patient Safety Healthcare Quality and Risk Management Consultant, The Doctors Company

The Doctors Company is able to identify key areas of risk by analyzing incidents reported to us and data on closed claims. This information guided us in developing our Practice Risk INSIGHT, a comprehensive assessment tool that helps members identify critical practice gaps.

In an analysis of more than 400 Practice Risk INSIGHT assessments, we found that the top areas of risk involved the flow of critical information. This included both written and verbal communications about patients and their care processes.

In surgical claims reported to The Doctors Company from 2008 through 2018, the top allegations 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, and study the subcategories that contributed to the claims, we find that many factors often occurred together. Factors found in surgical claims are often related to assessment, communication, and documentation (which can be system errors or individual errors). Understanding that the causes of claims are multifactorial, and rarely a result of judgment and technical skill alone, can help surgeons improve outcomes by evaluating their supporting systems in the office and the locations where they operate.

Flow of Critical Information

Most organizations have developed processes to manage the constant stream of critical information flowing through the practice. It comes from many sources, including patient telephone calls, 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.

Policies, Assessments, and Documentation

In July 2020, CRICO Strategies, a division of The Risk Management Foundation of the Harvard Medical Institutions, published The Power to Predict: Leveraging Medical Malpractice Data to Reduce Patient Harm and Financial Loss. The study looked at 37,000 claims and lawsuits spanning 20 years. These deeply coded medical malpractice claims represented about one-third of all cases in the United States and included both paid and unpaid claims. It found that three common factors, when present, significantly increase the odds that a malpractice claim will close with an indemnity payment:

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

If even one of these three factors is present, the risk of an indemnity payment nearly doubled. It is important to understand that more than one factor is generally involved.

Office and Surgical Team Collaboration

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

Policies, guidelines, and protocols help practices manage and mitigate identified risks with detailed, standardized procedures and create barriers to help prevent errors, mistakes, and patient harm. Policies and processes that facilitate the transfer of patient data from the office to surgery location must be flawless. Although verifying the correct patient, surgery, site, and side begins with the surgeon and the patient, it should be validated and verified by each person who handles that information or encounters the patient subsequently. Standardized polices and processes identify the steps unique to each organization. The teams will also have in-depth understanding of weak points in the system, with insights into solutions to make system improvements.

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. Studies regarding errors in complex industries (such as aviation, nuclear power, and healthcare) have demonstrated that dysfunctional nontechnical skills can be the basis of technical errors.1 TeamSTEPPS was developed by the Agency for Healthcare Research and Quality and the U.S. Department of Defense to integrate communication and teamwork into healthcare systems in the U.S. Studies have demonstrated improvements when these skills are applied.2

Risk Mitigation Strategies

The Doctors Company’s Practice Risk INSIGHTS align with CRICO’s Power to Predict study to help identify problematic processes in which communication of patient data may get lost, affecting the patient assessment and diagnostic process. Knowing where problems are likely to occur and which are likely to have the greatest financial impact helps practices continually improve the timely flow of information to accurately assess, diagnose, and treat patients and avoid patient harm through preventable medical errors. Consider the following risk mitigation strategies:

  • Understand how information flows from your practice to the location(s) where you perform surgery. Ask how that information is tracked from orders to the medical record 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, and audit those processes regularly to ensure they provide the right information for surgical procedures.
  • Ensure that written policies and protocols are well designed and accomplish the purpose of creating a standardized process to prevent patient harm.
  • Ask how behaviors are monitored to ensure that policies are consistently followed and if they are revised if a better way is discovered.
  • Assess your role within your teams and hone your nontechnical skills 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 and peer reviews/case reviews and by reviewing reporting systems, such as incident reports, sentinel events, and complaint logs. Use that information to continually improve processes and revise policies.
  • Survey teams periodically and ask them the following questions:3
    • How could the next patient be harmed?
    • What can be done to prevent or minimize this harm?
    • How could the next patient in the operating room get a surgical site infection?
    • What can be done to prevent this surgical site infection?
  • Share information with your teams when near misses occur, and highlight the potential for harm and the need for change.
  • Champion efforts to standardize processes that reduce risk. Counter disagreements by presenting evidence that supports the need to find a different way.

Consider partnering with us on a comprehensive practice checkup to help you identify gaps and potential risks. The initial assessment can be conducted with one of our patient safety experts virtually or onsite. Learn more about the Practice Risk INSIGHT or contact us at (800) 421-2368 or by email for more information or to get started today.


  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. PMID:30817354. doi:10.1097/SLA.0000000000003250
  2. Neily J, Mills PD, Young-Xu Y, et al. Association between implementation of a medical team training program and surgical mortality. JAMA. 2010;304(15):1693–1700. doi:10.1001/jama.2010.1506
  3. The Science of Improving Patient Safety and Identifying Defects: Slide Presentation. Content last reviewed December 2017. Agency for Healthcare Research and Quality, Rockville, MD.

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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