Risk ManagementChapter Ten

OBJECTIVES

• Understand the goals of an effective risk management program.

• Be aware of loss prevention strategies used to improve patient care and reduce exposure to malpractice claims.

• Appreciate the appropriate manner in which to explain untoward events to patients and families.

• Understand ways of maintaining good communication with patients and families.

Specialties Having DifficultyObtaining Affordable Coverage

• Obstetrics

• Emergency medicine

• General surgery

• Surgical subspecialties

• Radiology

Malpractice Climate

States Currently In Crisis States Currently OK

WashingtonOregonNevadaTexasMissouriArkansasMississippiIllinoisKentucky

OhioWest VirginiaNorth CarolinaGeorgiaFloridaPennsylvaniaNew YorkNew JerseyConnecticut

CaliforniaColoradoNew MexicoLouisianaWisconsinIndiana

The Remaining States Are Showing Problem Signs

Definition of Malpractice

• “Professional misconduct or unreasonable lack of skill in the provision of medical care.”

Outcomes Favorable To Plaintiff

• In civil legal actions, attempts to make the victim as “whole” as possible generally manifest as awards of money damages sufficient to return the victim to the “status quo ante” (state in which they were before the injury).

Malpractice Payments Are Increasing

Median Malpractice Claims Payments

$0.00

$30,000.00

$60,000.00

$90,000.00

$120,000.00

$150,000.00

1996 2001

Year

Pay

men

t

Causes Of Increasing Settlements

• Use of cutting-edge treatments

• Advent of managed care

• Reports in the media

Effects of the Healthcare System

• Many physicians, faced with increasingly hefty insurance premiums or, in some states, an inability to obtain coverage, have been driven out of practice or have had to limit their practices.

Awards Are Often Excessive

$0

$400,000

$800,000

$1,200,000

$1,600,000

$2,000,000

Chi

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Med

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Dia

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Non

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Sur

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Doc

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Type Of Case

Median Awards For Medical Negligence

Definition of Risk Management

• Risk management is defined as “identifying, evaluating, and minimizing exposure to the risk of liability that is inherent in the provisions of health care services.”

Goals of Risk Management

• Insure that practitioners are competent and patients are safe.

• Minimize the damage to physicians and practices from marginal or unwarranted lawsuits.

Climate for Tort Reform

• Legislated capitation on verdict and settlement payouts

• Combining capitation of noneconomic damages, that is, pain and suffering, with reforms to eliminate joint and several liability and shorten statutes of limitation.

Tort Reform Proposals

• Placing a flat percentage maximum on fees

• Imposing a sliding scale for fee payment.

MICRA

• The California Medical Injury Compensation Reform Act (MICRA) of 1974 serves as a gold standard for many proponents of national tort reform in their efforts to lobby Congress. California’s reforms specifically put caps on noneconomic damages.

Areas of Risk in ACOs

• Diagnosis and Screening

• Follow-up

• Patient identification

• Over sedation of patients

• Complex technology

• Inadequate training of personnel

Recommended Risk Strategies in ACOs

Structured organization Risk identification and analysis

mechanisms Loss prevention and loss control, Risk financing Careful claims management.

Patients Likely to Sue

• Patients who have sued before, have a pending lawsuit, or simply talk as if they have a contentious nature

• People who are unhappy, often for reasons unrelated to their health

Patients Likely to Sue

• People who do not understand their diagnosis, treatment, or instructions for self-care

• Family members, acquaintances, friends, colleagues, or people who are busy and do not want to take the time for consultations or detailed instructions

Patients Unfavorable Ratings of Their Primary Physician Include:

• Communication skills

• Knowledge of their life circumstances

• Knowledge of their whole-person situation

• Knowledge of medical history

Definition of an Incident

• “Any perceived or actual negative event related to patient care, or any other medical or administrative occurrence that deviates from the normal course of patient interaction or treatment.”

High Risk Areas to Monitor

Abnormal lab results

Patients who fail to keep appointments

Telephone Communications

Patients on high-risk medications.

Causes of Poor Documentation

Inadequate time spent creating the record

Inadequate attention to details

Lack of organized recording of one’s thoughts

Delay in completing the record.

Most Frequent Allegations of Wrongdoing

• Errors in diagnosis

• Medical misadventure

• Improper procedures performance

• Failure to supervise or monitor care

• Medication errors

• Procedures performed when not indicated or when contraindicated

• Failure or delay in referral or consultation

Professional Legal Duties

• The duty to disclose the risks of treatment

• The duty of confidentiality regarding information about the patient

• The duty of providing “reasonable care” in the supervision of resident physicians

Areas of Importance

• Explaining untoward events

• Listening

• Providing comprehensive informed consent

• Speaking with patients at a level they can understand

• Allowing patients to partner with the practitioner

Communication

• Keep a steady flow of communication with the patient and the patient’s family.

• Calling just to follow up, with no particular agenda, helps inspire a patient’s trust in a provider.

• Identify potentially high-risk patients, but be careful to not stereotype patients.

• Be aware of cultural diversity.

Use of Systems

• Develop fail-safe systems in every area of the practice.

• Use more formal tracking systems for patient satisfaction.

• Do not review cases outside of your specialty.

• Avoid disagreements among healthcare members.

Steps in Litigation Management

• Notify the insurance company

• Solicit expert reviews

• Collect depositions

• Decide whether to settle or defend

• Prepare for trial

Public Law 99-660, the Healthcare Quality Improvement Act of 1986.

• This legislation called for the creation of the National Practitioner Data Bank (NPDB), which serves as a central clearinghouse for information about the competence and conduct of healthcare practitioner.

Elements a Plaintiff Must Prove

That the professional (defendant) owed the plaintiff a duty to conform to a specific standard of conduct.

That the defendant breached his duty to the plaintiff – that is, the defendant was negligent.

That the plaintiff suffered damages to her person or property.

That the plaintiff’s damages were caused by the defendant’s breach of duty.