The Doctor’s Advocate | Second Quarter 2021
Perspectives from the CMO

Prevent, Communicate, Document: Medical Malpractice Data Help Us Manage Risk

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

The good news about medical malpractice is that there isn’t very much of it—which is the classic oxymoron of drawing insights from medical malpractice claims to improve patient safety. Nevertheless, medical malpractice data can focus our search for ways to succeed at three key aims of physicians, practices, and health systems: (1) prevent adverse events, (2) prevent lawsuits if adverse events do occur, and (3) prevail in lawsuits when all else fails.

Admittedly, analyzing medical malpractice data comes with obvious downsides. For one, many undesirable outcomes, adverse events, and near misses never result in a claim, so the claim data set, relative to the quantity of care provided that does not proceed optimally (or is perceived as not proceeding optimally) is quite small. And when compared to the total volume of care, it is miniscule. Further, if we wish to study closed claims, we must wait: By the time an event becomes a claim that completes the legal process, it is typically four to five years out from the originating event.

Still, the advantages of medical malpractice claims as a data source are indisputable—and powerful enough to overcome the drawbacks:

1. Relative to alternatives like peer review or root cause analysis, medical malpractice claims provide a much richer source of data. It is a sad yet helpful truth that people bare their souls when they are sued.
2. Because medical malpractice data have a direct correlation to large sums of money, it is easier to use medical malpractice claim–related findings to drive tangible, system-wide improvements to patient safety that no one wants to pay for.

Prevent, Preclude, Prevail

My approach to risk management is the three Ps:

Prevent adverse events. “We can’t fix what we can’t see,” says Dana Siegal, RN, CPHRM, CPPS, director of Patient Safety Services for CRICO Strategies. The Doctors Company employs CRICO’s Comparative Benchmark System when we code medical malpractice claims for our closed claims studies. She continues, “When we view that data across collective and comparative data sets, we validate the repeated patterns and trends across the care system, allowing us to focus resources and improvement initiatives on the most vulnerable risks.”

P. Divya Parikh, MPH, CAE, vice president of Research and Education for the MPL Association, agrees: “Medical malpractice data offer insight into high-risk specialties, medical conditions, and procedures that result in claims, allowing physicians and healthcare systems to direct their risk management programs for safer delivery of care.”

This last point is key—that healthcare systems can and do direct resources to improving patient safety based on insights derived from medical malpractice data—because it is easier to convince large systems to change when they can see not only a patient safety benefit, but also a strong financial incentive.

Preclude lawsuits with good communication. “Communication issues are a great example of the power of studying malpractice data to shed light on the multiple factors contributing to errors and harm,” says Ms. Siegal. When we analyze closed medical malpractice claims across specialties and settings, communication gaps crop up again and again. Those gaps can stem from medical team members miscommunicating with each other or with families. While the former may result in an adverse event (see the first P: Prevent), the latter may result in a lawsuit. A patient’s desire to pursue litigation after an adverse event frequently derives from a misunderstanding about possible outcomes. As a mentor once told me, “When you talk about potential complications before surgery, that’s informed consent. When you talk about them after the procedure, that’s an excuse.”

A New York Times article sifted decades’ worth of studies to conclude, “Doctors sued most often were complained about by patients twice as much as those who were not, and poor communication was the most common complaint.”¹ Note that poor outcomes was not the most common complaint—it was poor communication.

If your institution participates in a disclosure program, follow it carefully when responding to adverse events. A swift, compassionate, effective response to a patient’s needs in the aftermath of an adverse event or undesirable outcome is both ethically superior and practically advantageous for all parties, when compared to a lawsuit as the likely alternative.

Prevail when there are lawsuits via documentation. While undesired outcomes—even those that fall within the realm of a known complication for the treatment or procedure—may motivate patients to sue, it is often poor documentation that motivates a plaintiff’s attorney to take a case.² The Doctors Company’s Vice President and Associate General Counsel Richard F. Cahill, JD, addresses this potential pitfall in “The Defensible Medical Record”:

Patient grievances may be filed based on an individual’s faulty recollection of events, or a failure to understand the course of treatment or the underlying reason that an adverse consequence occurred. When a medical record is well documented, many allegations are often readily resolved—frequently before a formal administrative process is even initiated.³

All of this is otherwise phrased as:

Prevent, Communicate, Document

Experience has taught us that patients may bring suit either in the presence of actual medical error or in their perception of medical error. Either way, we have an opportunity to learn how to prevent the next claim. Ms. Parikh summarizes: “Every claim is, in essence, a patient complaint, and therefore an opportunity to learn where improvements can be made.”

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