Malpractice May Be Negative, but Its Data Can Generate Positive Results

David L. Feldman, MD, MBA, FACS, Chief Medical Officer, The Doctors Company and TDC Group

When most healthcare professionals hear the word “malpractice,” they want to run the other way. This is understandable—but also a missed opportunity. We can leverage malpractice data to target and drive investment in patient safety efforts. Malpractice data shows us very clearly that good communication and teamwork are vital to preventing adverse events and malpractice claims—while also dramatically improving working conditions and enhancing patient safety.

Malpractice data shows us that communication-related factors contribute to about 30 percent of claims. When communication is disrespectful, unclear, or simply missing, risks to both patient safety and provider liability are amplified, whether the communication is between providers, or between a provider and the patient/family.

How Coworker Reports Have Revealed Risks

Many have sensed a connection between a disrespectful, teamwork-damaging communication style and an elevated risk of adverse events for patients. Data from the National Surgical Quality Improvement Program has proven this point. When institutions maintain a professional conduct policy, offer training, and support reporting systems that allow providers to report coworkers who are not behaving well, this provides researchers with reports from which to glean insights.

In a study of conduct reports from Vanderbilt University Medical Center’s Coworker Observation Reporting System, disrespectful and offensive behavior was the dominant category of complaint. Patients whose surgeons had higher numbers of coworker reports about unprofessional behavior in the 36 months before the patient’s operation appeared to be at increased risk of surgical and medical complications. As this shows, when teamwork suffers, patient care and work environment often suffer, too.

What Causes Patients to Sue?

Teamwork depends on communication, and that includes communication with the patient as a member of the team. A study of outcomes for patients whose surgeons had received many unsolicited patient complaints showed that such patients faced increased risks for complications. As we can see, communication gaps between clinicians and patients, or communication that is received as disrespectful, can powerfully contribute to patient safety risks.

Communication issues with patients also contribute to litigation risks, irrespective of the nature or severity of a patient’s adverse event or injury. We know that a significant number of nonpreventable adverse events—that is, adverse events with no medical error—result in a lawsuit. This can occur because, although no medical error occurred, the patient or family members had unrealistic expectations that were not addressed prior to a procedure. It can also occur because, following an adverse event, providers missed the opportunity to prevent a claim by using clear, empathetic communication with the patient. Even considered completely separately from the presence or absence of medical error and separately from the relative severity of any injury suffered by a patient, poor communication increases the likelihood of a claim.

Malpractice data shows a direct link between claims and communication issues. Just as we have a way to go in how we communicate with each other, we have a way to go in how we communicate with patients.

How Teamwork Elevates Safety and Reduces Risks

The good news is malpractice data provides compelling evidence that solid teamwork can dramatically reduce risks for both patients and providers. For instance, researchers examined almost a million operative procedures, and noted significant safety improvements following two interventions: TeamSTEPPS training for surgical teams, plus radiofrequency (RF) technology to assist in counting lap pads, sponges, towels, and like items. After the interventions, retained surgical items decreased from 11.66 to 5.80 events per 100,000 operations; among the RF-detectable items, the drop was from 5.21 to 1.35 events per 100,000 operations. The number of claims from the post-op patient population also dropped dramatically following the interventions.

When researchers pulled almost 500 randomly selected malpractice claims, they found that nearly 50 percent revealed communication errors. The communication-errors claims divided roughly half and half into those with errors between the provider and the patient/family, and errors between healthcare team members. The claims showing communication errors between team members cost nearly twice as much to resolve—but researchers thought that three-quarters of those communication errors between team members could have been prevented with a handoff communication tool like I-PASS.

We can take action to improve teamwork. Large-scale safety interventions cost money, of course, and here is where malpractice data can help again, by driving investment in patient safety efforts. When pitching a safety intervention to hospital leadership, it’s persuasive to pit the costs of a proposed intervention against the costs of malpractice settlements and lawsuits.

The Patient as Teammate

We can also choose teamwork-promoting actions in our daily practice, because teamwork includes the patient. Well-informed and empowered patients are more likely to follow through on treatment plans, and less likely to file a claim because they simply did not understand the range of likely outcomes for their procedure.

To involve patients in their care:

  • Include patients in bedside rounds
  • Conduct handoffs at the patient’s bedside
  • Provide patients with tools for communicating with their care team
  • Invite patients to join key committees
  • Actively enlist patient participation

Some ICU professionals are now using mobile devices to include patients’ families during rounds. Keeping patients and families informed this way is a great recipe for avoiding a lawsuit.

As team members, patients and family members have their own responsibilities, such as providing accurate information and following the plan of care.

Start Small—Then Use Malpractice Data to Drive System Improvements

Respect—or lack thereof—has featured prominently in various surveys of providers regarding burnout. Respectful conduct reduces burnout while creating an environment conducive to teamwork, which in turn promotes increased patient safety and reduced provider vulnerability to claims.

If we are not sure where to start on the teamwork-corroding factors within our own institutions, we can start by focusing on recruiting patients to be engaged members of their own teams. From there, we can expand our attention to potential system interventions—malpractice data can help us engage leadership in understanding the value of team training programs to help improve safety and reduce costs associated with liability.

Although malpractice is a negative word, we can use the data generated by claims and lawsuits positively to make the workplace better and patients safer.

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.