- Email: [email protected]
The Medical Liability System: Essential Information for the Hospitalist
T h e Me d i c a l L i a b i l i t y S y s t e m : Es s e n t i a l Information for the Hospitalist Adam C. Schaffer,
MD
a
, Allen Kachalia,
MD, JD
b,
*
KEYWORDS Hospitalists Medical malpractice Legal system Professional liability
HOSPITAL MEDICINE CLINICS CHECKLIST
1. When evaluating care for negligence, use the 4 elements of medical malpractice: duty of care; breach; proximate causation; and harm. 2. After an adverse event, communicate clearly with the patient and do not abandon the patient or family. 3. After an adverse event, document all discussions thoroughly and contemporaneously. 4. Before and after an error, maintain a strong physician-patient relationship. 5. When you see an adverse event, get involved to improve the system and help prevent the same error from occurring again in the future. 6. After an error has been made, work with your risk management, patient safety, and patient relations departments to determine how best to investigate, and, if necessary, disclose the error to the patient. 7. If you have had a claim filed against you, be aware that National Practitioner Data Bank reporting is triggered only if a claim is paid on your behalf (by negotiated settlement or court award). CONTINUED
a
Brigham and Women’s Hospital/Harvard Medical School, 75 Francis Street, PBB-B-428, Boston, MA 02115, USA b Brigham and Women’s Hospital/Harvard Medical School, 75 Francis Street, Boston, MA 02115, USA * Corresponding author. E-mail address: [email protected] Hosp Med Clin 1 (2012) e276–e287 doi:10.1016/j.ehmc.2012.03.002 2211-5943/12/$ – see front matter Ó 2012 Elsevier Inc. All rights reserved.
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CONTINUED
8. If you have had a claim filed against you, be aware of state-level reporting requirements, and what information about your malpractice record may be available to patients via state Web sites. 9. If you are facing a malpractice claim, consider accessing support services, which are often offered through your hospital or local medical societies. 10. When promoting medical liability reform, advocate for reforms that not only help reduce physician liability risk but also those that improve patient safety.
1. What is medical malpractice and what are the legal elements of a medical malpractice claim? Medical malpractice is a negligent act (or omission) committed by a medical professional in the course of providing care to patients. Negligence is a type of tort (a civil, as opposed to criminal, wrongdoing) in the common law. The primary public policy goals of the medical malpractice system are to compensate patients who have been harmed as a result of negligent medical care and to deter providers from delivering substandard care.1 For a plaintiff to win a malpractice claim, he or she must prove the following 4 elements: duty, breach of duty, proximate causation, and harm (see Box 1 for definitions).1–3 Each element must be proved by a “preponderance of the evidence” standard, which means “more likely than not.” The absence or presence of all 4 elements is usually determined in part by the testimony of expert witnesses. Clinical practice guidelines, which may potentially work for or against physicians accused of malpractice, generally play an adjunctive role in defining the standard of care, as they are not dispositive of the issue of whether a breach occurred.4–6 2. How likely are hospitalists to be subject to a malpractice claim, and how does this compare with other physicians? Are there special areas of risk for hospitalists? Published malpractice data about hospitalists specifically do not exist, likely because of the relative newness of the field. However, some insurers have started to classify hospitalists separately as a subset of general internists, which should, it is hoped, make data available in the near future. Box 1 Elements necessary to prove medical malpractice Duty of Care. This element generally requires that a physician-patient relationship must have been established, which means the physician has somehow accepted responsibility for providing care to a patient. Breach of the Duty. A breach occurs when a physician fails to provide care that is consistent with the care that an average or reasonably prudent physician practicing in similar circumstances would provide; this is often referred to as the “standard of care.” Proximate Cause. This element requires that the breach was the direct cause of injury to the patient and that this injury would not have occurred but for the defendant physician’s breach. Damages. This element means the patient must have sustained actual harm (as opposed to being placed at risk of harm). In most cases, physical harm is required before any emotional (or “pain and suffering”) damages can be collected.
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At present, however, data about the likelihood that a malpractice claim will be filed against internal medicine physicians, a category that includes the majority of hospitalists,7 do exist. A recent analysis of a malpractice insurer database with information on more than 40,000 physicians found that, among physicians practicing in internal medicine and its subspecialties, 54.9% face a claim by age 45, and that number rises to 88.5% by age 65 years.8 For comparison, among physicians practicing in general surgery and the surgical subspecialties, 79.7% face a claim by age 45, and 98.4% by age 65 years.8 Several issues have been suggested as posing specific liability risks to hospitalists, although these issues are based on theoretical considerations rather than actual data.9,10 Many potential liability risks that are specific to hospitalists may stem from the discontinuity in care that is inherent to the job. These risks include: incidental findings that need longer-term follow-up (eg, an incidentally discovered lung nodule during a hospital admission for pneumonia); pending test results at discharge (eg, culture or hypercoagulability workup results); hand-offs during admission and discharge, from shift to shift, and rotation to rotation; consultation; and comanagement. However, it still remains to be seen whether these hazards actually increase the liability risk for hospitalists. 3. What is the relationship between an error in care and the filing of a malpractice claim? The relationship between the filing of a medical malpractice claim and the presence of negligence is not clear. An analysis of closed malpractice claims arising from 31,429 hospitalizations examined as part of the Harvard Medical Practice Study found that only 0.16% resulted in claims, and that only 20% of these claims contained an adverse event attributable to negligence.11 In a more recent analysis of 1452 closed malpractice claims, reviewers found that 63% of the claims with injury contained an error.12 The validity of these numbers must be considered in the context of the reliability of retrospective chart reviews. 4. If a physician is the subject of a medical malpractice claim, how likely is it that a payment will be made? How large are medical malpractice payments? The probability that a malpractice claim will be paid depends on several factors, including the merit of the claim, severity of injury, local laws and legal climate, and characteristics of the plaintiff and defendant. Data from the Harvard Medical Practice Study, which examined a representative sample of 31,429 records of patients hospitalized in New York State, identified 51 malpractice cases, 46 of which were resolved over 10 years. Of these 46 cases, 45.7% of them were closed with payment being made.11 Other more recent data from a review of 1452 malpractice claims revealed that 55.4% resulted in payment.12 Among these 1452 claims, payment was made in 73% of the 889 cases in which a reviewer had determined there was an injury attributable to medical error. Conversely, among the 515 claims with injury in which the reviewer determined there was no error, 72% of the time a payment was not made.12 A recent analysis of claims from a large professional liability insurer with a nationwide client base showed that, whereas annual rates of claims for all specialties ranged from 5% to 22%, the annual rates of claims leading to payments ranged from only 1% to 5%. On average, 7.4% of all physicians faced a malpractice claim each year, with only 1.6% having a claim leading to a payment. In other words, 78% of all claims did not result in payment.8
Medical Liability
One factor that affects both the likelihood payment will be made and the amount of the payment is severity of injury. When injured patients are compensated, the amount of the payment does substantially correlate with the severity of the injury. However, the amount of compensation for death may be less than that for a nonfatal severe injury, as patients who suffer a nonfatal severe injury may be compensated for future medical costs.11,13,14 Based on data from the National Practitioner Data Bank, the median malpractice payment in the inpatient setting was $195,000. This amount was 34% higher than the median malpractice payment of $145,000 in the outpatient setting.15 5. What factors are associated with patients filing malpractice claims? The best estimates available indicate that only about 2% to 3% of patients who sustain an injury resulting from negligence actually go on to file a malpractice claim.16–18 It seems that there are 2 general factors that are associated with patients filing malpractice claims: severity of injury, and relationship- or communication-related factors.11,19–21 Several studies have demonstrated or suggested a connection between relationshiprelated factors and the filing of claims. For example, primary care physicians who used more humor and more open-ended questions when soliciting their patient’s opinions were less likely to be sued than their counterparts who did not.19 Likewise, a study examining plaintiffs’ medical malpractice depositions found that problems with the physician-patient relationship were an important factor leading to the filing of the claim in 71% of cases. Specific relationship issues that were identified included the patient feeling deserted (due to the physician being unavailable or sending an assistant) and failing to empathize with the patient or family (due to a failure to listen or show concern for the patient’s discomfort).20 Similarly, physicians who are rated poorly by their patients, and those who are the subjects of patients’ complaints, are more likely to be the subjects of a medical malpractice claim. The number of unsolicited patient complaints significantly correlates with the number of risk-management episodes, which includes files being opened because of events that could lead to a malpractice claim as well as actual malpractice lawsuits.22 Scores on the Press Ganey survey of patient satisfaction with physicians’ inpatient care also appear to correlate with liability risk.23 Physicians in the top tertile of scores on the survey faced significantly fewer malpractice lawsuits and had fewer risk-management episodes (defined as incidents that risk-management staff thought could result in a malpractice lawsuit) than those physicians in the lowest tertile of survey scores. The specific questions in the Press Ganey survey that had the strongest correlation with risk-management episodes were those asking about “Physician’s concern for your questions and worries” and the amount of time the physician spent with the patient. Questions about the physician’s skill did not significantly correlate with riskmanagement episodes.23 6. What can individual physicians do to reduce the risk of being subject to a medical malpractice claim? Maintaining a strong physician-patient relationship, by paying attention to patients’ concerns and clearly communicating with patients, is one important way to reduce malpractice risk.19,20 As stated by a medical malpractice attorney commenting on a grant to improve physicians’ bedside manner, “In good [physician-patient] relationships, folks don’t call lawyers. What I hear a lot is that doctors were rude or uncaring.”24
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Supervision of residents and coordination of consultants are 2 key roles assumed by hospitalists at many academic centers. Hospitalists need to ensure that they provide adequate supervision to the residents on their team, as they are responsible for the care provided by their residents. Delegation of important communication tasks to residents needs to be done with caution, as sending residents instead of the attending physician to deliver news at critical junctures can be perceived (rightly or not) as devaluing the patient.20 Some trainees may also be less thorough in documenting communications, such as a discussion of risks and benefits of a procedure. Careful coordination with consulting specialists is also important. The attending hospitalist needs to clearly delineate the responsibilities of the consultant so that each knows the other’s responsibilities. So-called curbside consultations should be avoided, as the consultant will not fully review the case, and no consultation note will appear on the chart.25,26 Of course, the most effective method for reducing risk involves reducing injury. Hospitalists should work to design better systems to try to improve patient safety, including common areas of harm relevant to hospital medicine, such as medicationrelated, diagnostic, and procedure-related errors. The classes of drugs most commonly involved in adverse events include antibiotics, chemotherapeutic agents, anticoagulants, and cardiovascular medications.27 7. What is defensive medicine and what are its implications for the health care system? As defined in a 1994 US Government report, defensive medicine is “when doctors order tests, procedures, or visits, or avoid certain high-risk patients or procedures, primarily (but not necessarily solely) because of concern about malpractice liability.”28 Another more succinct definition of defensive medicine is the administration of “precautionary treatment with minimal expected medical benefit out of fear of legal liability.”29 Quantifying the costs associated with defensive medicine is notoriously difficult, because doing so requires gleaning the motivation behind a clinician ordering a test or procedure, a decision that is usually based on multiple considerations.30 The 1994 Government Report estimated that 8% or fewer of diagnostic procedures were ordered primarily for defensive reasons. Most studies of the annual costs of defensive medicine conclude that it is tens of billions of dollars.31,32 A recent study arrived at an estimate of $45.6 billion, albeit with the caveat that the supporting evidence had methodological limitations.31 Fear of a malpractice claim does seem to influence physician behavior. In a national survey, 91% of physicians agreed that they order additional tests and procedures that may not be needed, in an attempt to reduce their risk of a malpractice lawsuit.32 Arriving at a similar conclusion, another study, which surveyed high-risk specialists, found that 93% engaged in defensive medicine.33 The most common types of defensive practices were the ordering of extra tests and unnecessary referrals to specialists.33 8. What effect does error disclosure have on malpractice risk? Even though 77% of physicians surveyed agreed that they should have to report medical errors to patients,34 physicians commonly still wrestle with whether to disclose errors when confronted with such a situation. Many physicians reasonably fear that disclosing an error to a patient, especially if the patient is otherwise unaware of the error, may provoke a malpractice claim. Proponents of error disclosure argue that being honest with patients can help maintain a healthy physician-patient
Medical Liability
relationship in the face of the stress of a medical error, and so is unlikely to increase malpractice risk.35,36 Sufficient data to provide a conclusive answer about the effect of error disclosure on malpractice claims and costs do not exist.37,38 There is also an important distinction between disclosure of errors to patients, and disclosure of error that is coupled with an offer of compensation (the latter are often called disclosure-and-offer programs). Preliminary experience with disclosure-and-offer programs has been promising. Veterans Affairs Medical Center in Lexington, Kentucky developed a disclosureand-offer program that helped decrease that average payout per malpractice claim, even while increasing the number of claims.39,40 The University of Michigan Health System (UMHS) has also implemented a disclosure-and-offer program. When the UMHS is made aware of a potential error, the care is investigated. When this care has involved a negligent medical error causing injury, the UMHS starts discussions with the patient to explain what occurred, what steps will be taken to prevent the harm in the future, and through a series of conversations makes an appropriate offer of compensation.41,42 Data on program performance has shown that since its launch, the UMHS has experienced a decrease in the number of claims, the number of lawsuits, liability costs, and the time to resolution of claims.42 Ultimately, the most compelling argument for error disclosure is independent of its effect on malpractice costs, and is instead based on ethical imperatives.43,44 For example, the American Medical Association, in its code of ethics, urges that “when patient harm has been caused by an error, physicians should offer a general explanation regarding the nature of the error and the measures being taken to prevent similar occurrences in the future.”45 Fulfillment of this ethical obligation dictates that physicians disclose errors to patients.46 Of note, greater disclosure may also help build a stronger culture of transparency and safety. 9. What types of legal reporting requirements are triggered if I’m involved in a malpractice claim or payment? What is the National Practitioner Data Bank? The National Practitioner Data Bank (NPDB) is a federal government-run database containing reports about medical malpractice payments made by physicians (as well as nurses and other practitioners). Malpractice payments recorded include both payments made as part of a court judgment and those made as a result of a negotiated settlement. These payments are reported by institutions (including insurers) and not by individual physicians. Although the majority of NPDB reports are of malpractice payments, reports to the NPDB may also be generated as a result of disciplinary actions taken by state licensing boards, hospitals, or professional societies. Established by the Health Care Quality Improvement Act of 1986, the NPDB includes reports since 1990. The NPDB was created to build a central repository of reports of malpractice payments and other adverse actions against physicians. This database allows hospitals to obtain information about malpractice payments and other adverse actions as part of their credentialing process.47,48 Parties who are allowed access to practitioner-specific NPDB data include hospitals and state licensing boards. Individual patients cannot use the NPDB to obtain information about their physicians. Although the NPDB does not provide information to the public about malpractice payments made by specific physicians, state-run Web sites increasingly do.49 At least 17 states currently have such Web sites.50 In the case of Massachusetts, for example, information is available to the public about individual physicians’ malpractice payments (whether as a result of a settlement or court judgment), criminal convictions,
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hospital discipline, and Massachusetts medical board discipline, for the prior 10 years. Table 1 summarizes different sources of information about physician malpractice payments and adverse actions.50 Depending on the state, other reporting requirements regarding malpractice payments may exist, such as to insurance companies and institutions that credential physicians. 10. What is tort reform and what tort reform initiatives have been implemented? Tort reform, as applied to the field of medicine, is a broad term referring to efforts to change the current system of medical malpractice. As already noted, tort law encompasses areas in addition to medical malpractice, and so in certain contexts, tort reform can also refer to efforts to bring reform to other precincts of tort law, such as products liability. The discussion of tort reform herein is limited to proposed reforms of the medical malpractice system, for which a more precise term is medical liability reform.18 Many of the proposals surrounding medical liability reform have focused on the goal of reducing the liability risk of physicians. One commonly proposed medical liability reform measure is to limit (or “cap”) noneconomic damages, such as those awarded for pain and suffering. Caps on noneconomic damages appear to be effective in decreasing the size of malpractice payments.18,38,51,52 It is fairly clear that such caps also decrease malpractice insurance premiums, although they may only do so to a limited extent. Some other medical liability reforms that have been implemented in some states are listed in Table 2. In general, the evidence regarding the effects of these different medical liability reforms shows limited to no lowering of malpractice claims or costs.38
Table 1 Legal reporting requirements for physician malpractice payments and adverse actions National Practitioner Data Bank
a
State Physician Malpractice Information Web Sites
Information always included
Malpractice payments resulting from a trial Malpractice payments resulting from a settlement Medical licensing board disciplinary actions Hospital disciplinary actions Professional society disciplinary actions
Malpractice payments resulting from a trial
Information sometimes included (varies by state)
Not applicable
Malpractice payments resulting from a settlementa Medical licensing board disciplinary actions Hospital disciplinary actions Criminal convictions
Entities that can access the information
Hospitals and other health care entities State licensing boards Professional societies Physicians obtaining information about themselves
Public
Some state Web sites only report settlements above a certain dollar-amount threshold. Some states only report settlements once a certain number of settlements have been made.50
Table 2 Some traditional medical liability reforms Description
Pretrial screening or medical panels
These panels determine whether the claim meets a standard of merit (usually easier to prove than negligence). The main goals are to screen out nonmeritorious or frivolous claims and to speed the resolution of disputes. Even if a panel rejects the claim, the plaintiff may still be able to move forward (though in some states this may require additional steps, such as posting a bond to cover legal expenses for the defense)
Certificate-of-merit requirement
A certificate-of-merit requirement obliges the claimant to produce an affidavit from a medical expert attesting to the merit of the claim before the claim can go forward. The goal is to implement procedural steps to deter frivolous or nonmeritorious claims
Limits on attorney fees
Typically, attorneys who bring malpractice cases are paid a percentage of the payment the claimant receives (known as a contingency fee arrangement). Limitations on the percentage or absolute amount attorneys can collect in fees are designed to deter attorneys from bringing claims that are unlikely to be successful
Joint-and-several liability (JSL) reform
JSL is the common law doctrine that, when an award is made against multiple defendants, any one of them can be held responsible for the entire award. JSL allows claimants to collect an entire award from a hospital or physician with generous malpractice insurance or “deep pockets.” JSL reforms typically limit what defendants owe to their proportion of “fault” in the case
Statutes of limitations and repose
Statutes of limitation require malpractice claims be filed within a given period of time after the injury is discovered (or should reasonably have been discovered), whereas statutes of repose require claims be filed within a given period of time after the injury occurred (without regard to when it was or could have been discovered). The goal is to make cases easier to resolve by having them adjudicated closer to the time of injury, and to reduce long-term uncertainty for providers and malpractice insurers
Data from Refs.1,18,38,53
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Reform
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11. What new approaches are being taken to reduce malpractice risk and costs? The Agency for Healthcare Research and Quality (AHRQ) has recently funded several demonstration projects related to medical liability innovation. Many traditional efforts at medical liability reform, such as limiting noneconomic damages, have focused primarily on reducing the liability exposure of physicians. The new demonstration projects being tested, however, seek not only to reduce the liability exposure for physicians, but also more broadly aim to improve the performance of the overall liability system while simultaneously enhancing patient safety.18 Several of the AHRQ grants are designed to evaluate disclosure-and-offer programs implemented at various health care institutions. These programs seek to leverage the increased transparency that comes with disclosure-and-offer programs to better couple risk management and patient safety efforts.54 An additional innovation involves assigning malpractice claims for a designated group of hospitals to a defined group of judges who are specially trained in adjudicating medical malpractice claims. A specific judge handles a case from beginning to end, allowing the judge to facilitate settlement. Another project seeks to evaluate “safe harbors” for physicians. According to this concept, physicians who adhere to evidence-based medical practice would receive increased legal protection against a malpractice claim. This protection would lead, it is hoped, to greater standardization of care and safety.18,54–56 12. What should one do if one is the subject of a medical malpractice claim? Being the subject of a medical malpractice claim can be intensely stressful.57 Many medical societies have support programs for physicians facing a malpractice claim.58 Data show that by age 65 years, internists have an 88.5% chance of having faced a malpractice claim, and so need to realize that they are not alone.8 Although it can be important to talk about the stress of a malpractice case with colleagues, unless done as part of safety or improvement efforts, discussion of the particular medical details of the case should be handled with caution, as such conversations may not be privileged (and thus can be subject to discovery and used in court). Conversations with one’s attorney or a physician with whom one has a formal physician-patient relationship are privileged.59 Demystifying the legal process that occurs once a medical malpractice claim is made can help reduce anxiety. Once it receives a malpractice claim, a malpractice insurer will assign a claims adjuster and defense attorney to the case. These individuals can be resources to a physician in obtaining information about the legal process. The process of resolving a medical malpractice claim can be protracted, often taking 4 to 5 years.58–62 REFERENCES
1. Studdert DM, Mello MM, Brennan TA. Medical malpractice. N Engl J Med 2004; 350(3):283–92. 2. Hirshfeld EB. From the Office of the General Counsel. Practice parameters and the malpractice liability of physicians. JAMA 1990;263(11):1556. 3. Blumenthal HJ, Woodard JR 3rd. Standard of care. Headache 2008;48(6): 858–61. 4. Mello MM. Of swords and shields: the role of clinical practice guidelines in medical malpractice litigation. Univ Penn Law Rev 2001;149(3):645. 5. Hyams AL, Brandenburg JA, Lipsitz SR, et al. Practice guidelines and malpractice litigation: a two-way street. Ann Intern Med 1995;122(6):450–5.
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6. Hurwitz B. How does evidence based guidance influence determinations of medical negligence? BMJ 2004;329(7473):1024–8. 7. Hoff TH, Whitcomb WF, Williams K, et al. Characteristics and work experiences of hospitalists in the United States. Arch Intern Med 2001;161(6):851–8. 8. Jena AB, Seabury S, Lakdawalla D, et al. Malpractice risk according to physician specialty. N Engl J Med 2011;365(7):629–36. 9. Alpers A. Key legal principles for hospitalists. Am J Med 2001;111(9B):5S–9S. 10. Alpers A. Key legal principles for hospitalists. Dis Mon 2002;48(4):197–206. 11. Brennan TA, Sox CM, Burstin HR. Relation between negligent adverse events and the outcomes of medical-malpractice litigation. N Engl J Med 1996;335(26):1963–7. 12. Studdert DM, Mello MM, Gawande AA, et al. Claims, errors, and compensation payments in medical malpractice litigation. N Engl J Med 2006;354(19):2024–33. 13. Taragin MI, Willett LR, Wilczek AP, et al. The influence of standard of care and severity of injury on the resolution of medical malpractice claims. Ann Intern Med 1992;117(9):780–4. 14. Farber HS, White MJ. Medical malpractice: an empirical examination of the litigation process. Cambridge (MA): National Bureau of Economic Research; 1990 (NBER Working Paper No. 3428). 15. Bishop TF, Ryan AK, Casalino LP. Paid malpractice claims for adverse events in inpatient and outpatient settings. JAMA 2011;305(23):2427–31. 16. Localio AR, Lawthers AG, Brennan TA, et al. Relation between malpractice claims and adverse events due to negligence. Results of the Harvard Medical Practice Study III. N Engl J Med 1991;325(4):245–51. 17. Studdert DM, Thomas EJ, Burstin HR, et al. Negligent care and malpractice claiming behavior in Utah and Colorado. Med Care 2000;38(3):250–60. 18. Kachalia A, Mello MM. New directions in medical liability reform. N Engl J Med 2011;364(16):1564–72. 19. Levinson W, Roter DL, Mullooly JP, et al. Physician-patient communication. The relationship with malpractice claims among primary care physicians and surgeons. JAMA 1997;277(7):553–9. 20. Beckman HB, Markakis KM, Suchman AL, et al. The doctor-patient relationship and malpractice. Lessons from plaintiff depositions. Arch Intern Med 1994; 154(12):1365–70. 21. Danzon PM. Medical malpractice: theory, evidence, and public policy. Cambridge (MA): Harvard University Press; 1985. 22. Hickson GB, Federspiel CF, Pichert JW, et al. Patient complaints and malpractice risk. JAMA 2002;287(22):2951–7. 23. Stelfox HT, Gandhi TK, Orav EJ, et al. The relation of patient satisfaction with complaints against physicians and malpractice lawsuits. Am J Med 2005; 118(10):1126–33. 24. Johnson D. A $42 Million Gift aims at improving bedside manner. The New York Times. September 22, 2011:A14. 25. Fox BC, Siegel ML, Weinstein RA. “Curbside” consultation and informal communication in medical practice: a medicolegal perspective. Clin Infect Dis 1996; 23(3):616–22. 26. Schaffer AC, Beshara N. Medical malpractice. In: McKean S, Ross J, Dressler D, et al, editors. Principles and practice of hospital medicine. New York: McGraw Hill; 2012, in press. 27. Leape LL, Brennan TA, Laird N, et al. The nature of adverse events in hospitalized patients. Results of the Harvard Medical Practice Study II. N Engl J Med 1991; 324(6):377–84.
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28. U.S. Office of Technology Assessment. Defensive medicine and medical malpractice. Washington, DC: United States Congress, Office of Technology Assessment; 1994. 29. Kessler DP, McClellan MB. How liability law affects medical productivity. J Health Econ 2002;21(6):931–55. 30. Studdert DM, Mello MM, Brennan TA. Defensive medicine and tort reform: a wide view. J Gen Intern Med 2010;25(5):380–1. 31. Mello MM, Chandra A, Gawande AA, et al. National costs of the medical liability system. Health Aff (Millwood) 2010;29(9):1569–77. 32. Bishop TF, Federman AD, Keyhani S. Physicians’ views on defensive medicine: a national survey. Arch Intern Med 2010;170(12):1081–3. 33. Studdert DM, Mello MM, Sage WM, et al. Defensive medicine among high-risk specialist physicians in a volatile malpractice environment. JAMA 2005; 293(21):2609–17. 34. Blendon RJ, DesRoches CM, Brodie M, et al. Views of practicing physicians and the public on medical errors. N Engl J Med 2002;347(24):1933–40. 35. Gallagher TH, Waterman AD, Ebers AG, et al. Patients’ and physicians’ attitudes regarding the disclosure of medical errors. JAMA 2003;289(8):1001–7. 36. Gallagher TH, Studdert D, Levinson W. Disclosing harmful medical errors to patients. N Engl J Med 2007;356(26):2713–9. 37. Kachalia A, Shojania KG, Hofer TP, et al. Does full disclosure of medical errors affect malpractice liability? The jury is still out. Jt Comm J Qual Saf 2003;29(10):503–11. 38. Mello MM, Kachalia A. Evaluation of options for medical malpractice system reform. Washington, DC: Medicare Payment Advisory Commission; 2010. 39. Kraman SS, Hamm G. Risk management: extreme honesty may be the best policy. Ann Intern Med 1999;131(12):963–7. 40. Kraman SS, Cranfill L, Hamm G, et al. Eisenberg Patient Safety Awards. Advocacy: the Lexington Veterans Affairs Medical Center. Jt Comm J Qual Improv 2002;28(12):646–50. 41. Boothman RC, Blackwell AC, Campbell DA Jr, et al. A better approach to medical malpractice claims? The University of Michigan experience. J Health Life Sci Law 2009;2(2):125–59. 42. Kachalia A, Kaufman SR, Boothman R, et al. Liability claims and costs before and after implementation of a medical error disclosure program. Ann Intern Med 2010;153(4):213–21. 43. Hebert PC, Levin AV, Robertson G. Bioethics for clinicians: 23. Disclosure of medical error. CMAJ 2001;164(4):509–13. 44. Murphy JG, McEvoy MT. Revealing medical errors to your patients. Chest 2008; 133(5):1064–5. 45. AMA Code of Medical Ethics, Opinion 8.121—Ethical responsibility to study and prevent error and harm. Available at: http://www.ama-assn.org/ama/pub/physician-resources/ medical-ethics/code-medical-ethics/opinion8121.page?#. Accessed September 27, 2011. 46. When things go wrong: responding to adverse events. A consensus statement of the Harvard hospitals. Boston (MA): Massachusetts Coalition for the Prevention of Medical Errors; 2006. Available at: http://www.macoalition.org/documents/ respondingToAdverseEvents.pdf. Accessed March 22, 2012. 47. NPDB Guidebook. Rockville (MD): Health Resources and Services Administration (U.S. Department of Health and Human Services); 2001. Available at: http://www. npdb-hipdb.hrsa.gov/resources/NPDBGuidebook.pdf. Accessed March 22, 2012.
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48. Satiani B. The National Practitioner Data Bank: structure and function. J Am Coll Surg 2004;199(6):981–6. 49. Massachusetts Board of Registration in Medicine On-Line Physician Profile Site. Available at: http://profiles.massmedboard.org/MA-Physician-Profile-Find-Doctor. asp. Accessed September 27, 2011. 50. Helland E, Lee G. Bargaining in the shadow of the website: disclosure’s impact on medical malpractice litigation. Am Law Econ Rev 2010;12(2):423–61. 51. Hyman DA, Black B, Silver C, et al. Estimating the effect of damages caps in medical malpractice cases: evidence from Texas. The Journal of Legal Analysis 2009;1:355–409. Available at: http://jla.oxfordjournals.org/content/1/1/355.short. Accessed March 22, 2012. 52. Kilgore ML, Morrisey MA, Nelson LJ. Tort law and medical malpractice insurance premiums. Inquiry 2006;43(3):255–70. 53. Mello MM, Kachalia A, Goodell S. Medical malpractice—update. Princeton (NJ): The Robert Wood Johnson Foundation; 2011. 54. Mello MM, Gallagher TH. Malpractice reform—opportunities for leadership by health care institutions and liability insurers. N Engl J Med 2010;362(15):1353–6. 55. Mello MM, Brennan TA. The role of medical liability reform in federal health care reform. N Engl J Med 2009;361(1):1–3. 56. Agency for Healthcare Research and Quality. Medical liability reform and patient safety: planning grants. Available at: http://www.ahrq.gov/qual/liability/planninggrants.htm. Accessed November 1, 2011. 57. Charles SC, Wilbert JR, Franke KJ. Sued and nonsued physicians’ self-reported reactions to malpractice litigation. Am J Psychiatry 1985;142(4):437–40. 58. Samkoff JS, Gable GK. Coping with the stress of litigation. Pa Med 1991;94(3): 18–20. 59. Charles SC. Coping with a medical malpractice suit. West J Med 2001;174(1): 55–8. 60. ACOG Committee on Professional Liability. Coping with the stress of malpractice litigation. Int J Gynaecol Obstet 2001;74(1):65–6. 61. Gray RW. Dealing with malpractice stress, part I. Tenn Med 2006;99(6):30. 62. Gray RW. Dealing with malpractice stress, part II. Tenn Med 2006;99(7):67.
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KEYWORDS Hospitalists Medical malpractice Legal system Professional liability
HOSPITAL MEDICINE CLINICS CHECKLIST
1. When evaluating care for negligence, use the 4 elements of medical malpractice: duty of care; breach; proximate causation; and harm. 2. After an adverse event, communicate clearly with the patient and do not abandon the patient or family. 3. After an adverse event, document all discussions thoroughly and contemporaneously. 4. Before and after an error, maintain a strong physician-patient relationship. 5. When you see an adverse event, get involved to improve the system and help prevent the same error from occurring again in the future. 6. After an error has been made, work with your risk management, patient safety, and patient relations departments to determine how best to investigate, and, if necessary, disclose the error to the patient. 7. If you have had a claim filed against you, be aware that National Practitioner Data Bank reporting is triggered only if a claim is paid on your behalf (by negotiated settlement or court award). CONTINUED
a
Brigham and Women’s Hospital/Harvard Medical School, 75 Francis Street, PBB-B-428, Boston, MA 02115, USA b Brigham and Women’s Hospital/Harvard Medical School, 75 Francis Street, Boston, MA 02115, USA * Corresponding author. E-mail address: [email protected] Hosp Med Clin 1 (2012) e276–e287 doi:10.1016/j.ehmc.2012.03.002 2211-5943/12/$ – see front matter Ó 2012 Elsevier Inc. All rights reserved.
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8. If you have had a claim filed against you, be aware of state-level reporting requirements, and what information about your malpractice record may be available to patients via state Web sites. 9. If you are facing a malpractice claim, consider accessing support services, which are often offered through your hospital or local medical societies. 10. When promoting medical liability reform, advocate for reforms that not only help reduce physician liability risk but also those that improve patient safety.
1. What is medical malpractice and what are the legal elements of a medical malpractice claim? Medical malpractice is a negligent act (or omission) committed by a medical professional in the course of providing care to patients. Negligence is a type of tort (a civil, as opposed to criminal, wrongdoing) in the common law. The primary public policy goals of the medical malpractice system are to compensate patients who have been harmed as a result of negligent medical care and to deter providers from delivering substandard care.1 For a plaintiff to win a malpractice claim, he or she must prove the following 4 elements: duty, breach of duty, proximate causation, and harm (see Box 1 for definitions).1–3 Each element must be proved by a “preponderance of the evidence” standard, which means “more likely than not.” The absence or presence of all 4 elements is usually determined in part by the testimony of expert witnesses. Clinical practice guidelines, which may potentially work for or against physicians accused of malpractice, generally play an adjunctive role in defining the standard of care, as they are not dispositive of the issue of whether a breach occurred.4–6 2. How likely are hospitalists to be subject to a malpractice claim, and how does this compare with other physicians? Are there special areas of risk for hospitalists? Published malpractice data about hospitalists specifically do not exist, likely because of the relative newness of the field. However, some insurers have started to classify hospitalists separately as a subset of general internists, which should, it is hoped, make data available in the near future. Box 1 Elements necessary to prove medical malpractice Duty of Care. This element generally requires that a physician-patient relationship must have been established, which means the physician has somehow accepted responsibility for providing care to a patient. Breach of the Duty. A breach occurs when a physician fails to provide care that is consistent with the care that an average or reasonably prudent physician practicing in similar circumstances would provide; this is often referred to as the “standard of care.” Proximate Cause. This element requires that the breach was the direct cause of injury to the patient and that this injury would not have occurred but for the defendant physician’s breach. Damages. This element means the patient must have sustained actual harm (as opposed to being placed at risk of harm). In most cases, physical harm is required before any emotional (or “pain and suffering”) damages can be collected.
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At present, however, data about the likelihood that a malpractice claim will be filed against internal medicine physicians, a category that includes the majority of hospitalists,7 do exist. A recent analysis of a malpractice insurer database with information on more than 40,000 physicians found that, among physicians practicing in internal medicine and its subspecialties, 54.9% face a claim by age 45, and that number rises to 88.5% by age 65 years.8 For comparison, among physicians practicing in general surgery and the surgical subspecialties, 79.7% face a claim by age 45, and 98.4% by age 65 years.8 Several issues have been suggested as posing specific liability risks to hospitalists, although these issues are based on theoretical considerations rather than actual data.9,10 Many potential liability risks that are specific to hospitalists may stem from the discontinuity in care that is inherent to the job. These risks include: incidental findings that need longer-term follow-up (eg, an incidentally discovered lung nodule during a hospital admission for pneumonia); pending test results at discharge (eg, culture or hypercoagulability workup results); hand-offs during admission and discharge, from shift to shift, and rotation to rotation; consultation; and comanagement. However, it still remains to be seen whether these hazards actually increase the liability risk for hospitalists. 3. What is the relationship between an error in care and the filing of a malpractice claim? The relationship between the filing of a medical malpractice claim and the presence of negligence is not clear. An analysis of closed malpractice claims arising from 31,429 hospitalizations examined as part of the Harvard Medical Practice Study found that only 0.16% resulted in claims, and that only 20% of these claims contained an adverse event attributable to negligence.11 In a more recent analysis of 1452 closed malpractice claims, reviewers found that 63% of the claims with injury contained an error.12 The validity of these numbers must be considered in the context of the reliability of retrospective chart reviews. 4. If a physician is the subject of a medical malpractice claim, how likely is it that a payment will be made? How large are medical malpractice payments? The probability that a malpractice claim will be paid depends on several factors, including the merit of the claim, severity of injury, local laws and legal climate, and characteristics of the plaintiff and defendant. Data from the Harvard Medical Practice Study, which examined a representative sample of 31,429 records of patients hospitalized in New York State, identified 51 malpractice cases, 46 of which were resolved over 10 years. Of these 46 cases, 45.7% of them were closed with payment being made.11 Other more recent data from a review of 1452 malpractice claims revealed that 55.4% resulted in payment.12 Among these 1452 claims, payment was made in 73% of the 889 cases in which a reviewer had determined there was an injury attributable to medical error. Conversely, among the 515 claims with injury in which the reviewer determined there was no error, 72% of the time a payment was not made.12 A recent analysis of claims from a large professional liability insurer with a nationwide client base showed that, whereas annual rates of claims for all specialties ranged from 5% to 22%, the annual rates of claims leading to payments ranged from only 1% to 5%. On average, 7.4% of all physicians faced a malpractice claim each year, with only 1.6% having a claim leading to a payment. In other words, 78% of all claims did not result in payment.8
Medical Liability
One factor that affects both the likelihood payment will be made and the amount of the payment is severity of injury. When injured patients are compensated, the amount of the payment does substantially correlate with the severity of the injury. However, the amount of compensation for death may be less than that for a nonfatal severe injury, as patients who suffer a nonfatal severe injury may be compensated for future medical costs.11,13,14 Based on data from the National Practitioner Data Bank, the median malpractice payment in the inpatient setting was $195,000. This amount was 34% higher than the median malpractice payment of $145,000 in the outpatient setting.15 5. What factors are associated with patients filing malpractice claims? The best estimates available indicate that only about 2% to 3% of patients who sustain an injury resulting from negligence actually go on to file a malpractice claim.16–18 It seems that there are 2 general factors that are associated with patients filing malpractice claims: severity of injury, and relationship- or communication-related factors.11,19–21 Several studies have demonstrated or suggested a connection between relationshiprelated factors and the filing of claims. For example, primary care physicians who used more humor and more open-ended questions when soliciting their patient’s opinions were less likely to be sued than their counterparts who did not.19 Likewise, a study examining plaintiffs’ medical malpractice depositions found that problems with the physician-patient relationship were an important factor leading to the filing of the claim in 71% of cases. Specific relationship issues that were identified included the patient feeling deserted (due to the physician being unavailable or sending an assistant) and failing to empathize with the patient or family (due to a failure to listen or show concern for the patient’s discomfort).20 Similarly, physicians who are rated poorly by their patients, and those who are the subjects of patients’ complaints, are more likely to be the subjects of a medical malpractice claim. The number of unsolicited patient complaints significantly correlates with the number of risk-management episodes, which includes files being opened because of events that could lead to a malpractice claim as well as actual malpractice lawsuits.22 Scores on the Press Ganey survey of patient satisfaction with physicians’ inpatient care also appear to correlate with liability risk.23 Physicians in the top tertile of scores on the survey faced significantly fewer malpractice lawsuits and had fewer risk-management episodes (defined as incidents that risk-management staff thought could result in a malpractice lawsuit) than those physicians in the lowest tertile of survey scores. The specific questions in the Press Ganey survey that had the strongest correlation with risk-management episodes were those asking about “Physician’s concern for your questions and worries” and the amount of time the physician spent with the patient. Questions about the physician’s skill did not significantly correlate with riskmanagement episodes.23 6. What can individual physicians do to reduce the risk of being subject to a medical malpractice claim? Maintaining a strong physician-patient relationship, by paying attention to patients’ concerns and clearly communicating with patients, is one important way to reduce malpractice risk.19,20 As stated by a medical malpractice attorney commenting on a grant to improve physicians’ bedside manner, “In good [physician-patient] relationships, folks don’t call lawyers. What I hear a lot is that doctors were rude or uncaring.”24
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Supervision of residents and coordination of consultants are 2 key roles assumed by hospitalists at many academic centers. Hospitalists need to ensure that they provide adequate supervision to the residents on their team, as they are responsible for the care provided by their residents. Delegation of important communication tasks to residents needs to be done with caution, as sending residents instead of the attending physician to deliver news at critical junctures can be perceived (rightly or not) as devaluing the patient.20 Some trainees may also be less thorough in documenting communications, such as a discussion of risks and benefits of a procedure. Careful coordination with consulting specialists is also important. The attending hospitalist needs to clearly delineate the responsibilities of the consultant so that each knows the other’s responsibilities. So-called curbside consultations should be avoided, as the consultant will not fully review the case, and no consultation note will appear on the chart.25,26 Of course, the most effective method for reducing risk involves reducing injury. Hospitalists should work to design better systems to try to improve patient safety, including common areas of harm relevant to hospital medicine, such as medicationrelated, diagnostic, and procedure-related errors. The classes of drugs most commonly involved in adverse events include antibiotics, chemotherapeutic agents, anticoagulants, and cardiovascular medications.27 7. What is defensive medicine and what are its implications for the health care system? As defined in a 1994 US Government report, defensive medicine is “when doctors order tests, procedures, or visits, or avoid certain high-risk patients or procedures, primarily (but not necessarily solely) because of concern about malpractice liability.”28 Another more succinct definition of defensive medicine is the administration of “precautionary treatment with minimal expected medical benefit out of fear of legal liability.”29 Quantifying the costs associated with defensive medicine is notoriously difficult, because doing so requires gleaning the motivation behind a clinician ordering a test or procedure, a decision that is usually based on multiple considerations.30 The 1994 Government Report estimated that 8% or fewer of diagnostic procedures were ordered primarily for defensive reasons. Most studies of the annual costs of defensive medicine conclude that it is tens of billions of dollars.31,32 A recent study arrived at an estimate of $45.6 billion, albeit with the caveat that the supporting evidence had methodological limitations.31 Fear of a malpractice claim does seem to influence physician behavior. In a national survey, 91% of physicians agreed that they order additional tests and procedures that may not be needed, in an attempt to reduce their risk of a malpractice lawsuit.32 Arriving at a similar conclusion, another study, which surveyed high-risk specialists, found that 93% engaged in defensive medicine.33 The most common types of defensive practices were the ordering of extra tests and unnecessary referrals to specialists.33 8. What effect does error disclosure have on malpractice risk? Even though 77% of physicians surveyed agreed that they should have to report medical errors to patients,34 physicians commonly still wrestle with whether to disclose errors when confronted with such a situation. Many physicians reasonably fear that disclosing an error to a patient, especially if the patient is otherwise unaware of the error, may provoke a malpractice claim. Proponents of error disclosure argue that being honest with patients can help maintain a healthy physician-patient
Medical Liability
relationship in the face of the stress of a medical error, and so is unlikely to increase malpractice risk.35,36 Sufficient data to provide a conclusive answer about the effect of error disclosure on malpractice claims and costs do not exist.37,38 There is also an important distinction between disclosure of errors to patients, and disclosure of error that is coupled with an offer of compensation (the latter are often called disclosure-and-offer programs). Preliminary experience with disclosure-and-offer programs has been promising. Veterans Affairs Medical Center in Lexington, Kentucky developed a disclosureand-offer program that helped decrease that average payout per malpractice claim, even while increasing the number of claims.39,40 The University of Michigan Health System (UMHS) has also implemented a disclosure-and-offer program. When the UMHS is made aware of a potential error, the care is investigated. When this care has involved a negligent medical error causing injury, the UMHS starts discussions with the patient to explain what occurred, what steps will be taken to prevent the harm in the future, and through a series of conversations makes an appropriate offer of compensation.41,42 Data on program performance has shown that since its launch, the UMHS has experienced a decrease in the number of claims, the number of lawsuits, liability costs, and the time to resolution of claims.42 Ultimately, the most compelling argument for error disclosure is independent of its effect on malpractice costs, and is instead based on ethical imperatives.43,44 For example, the American Medical Association, in its code of ethics, urges that “when patient harm has been caused by an error, physicians should offer a general explanation regarding the nature of the error and the measures being taken to prevent similar occurrences in the future.”45 Fulfillment of this ethical obligation dictates that physicians disclose errors to patients.46 Of note, greater disclosure may also help build a stronger culture of transparency and safety. 9. What types of legal reporting requirements are triggered if I’m involved in a malpractice claim or payment? What is the National Practitioner Data Bank? The National Practitioner Data Bank (NPDB) is a federal government-run database containing reports about medical malpractice payments made by physicians (as well as nurses and other practitioners). Malpractice payments recorded include both payments made as part of a court judgment and those made as a result of a negotiated settlement. These payments are reported by institutions (including insurers) and not by individual physicians. Although the majority of NPDB reports are of malpractice payments, reports to the NPDB may also be generated as a result of disciplinary actions taken by state licensing boards, hospitals, or professional societies. Established by the Health Care Quality Improvement Act of 1986, the NPDB includes reports since 1990. The NPDB was created to build a central repository of reports of malpractice payments and other adverse actions against physicians. This database allows hospitals to obtain information about malpractice payments and other adverse actions as part of their credentialing process.47,48 Parties who are allowed access to practitioner-specific NPDB data include hospitals and state licensing boards. Individual patients cannot use the NPDB to obtain information about their physicians. Although the NPDB does not provide information to the public about malpractice payments made by specific physicians, state-run Web sites increasingly do.49 At least 17 states currently have such Web sites.50 In the case of Massachusetts, for example, information is available to the public about individual physicians’ malpractice payments (whether as a result of a settlement or court judgment), criminal convictions,
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hospital discipline, and Massachusetts medical board discipline, for the prior 10 years. Table 1 summarizes different sources of information about physician malpractice payments and adverse actions.50 Depending on the state, other reporting requirements regarding malpractice payments may exist, such as to insurance companies and institutions that credential physicians. 10. What is tort reform and what tort reform initiatives have been implemented? Tort reform, as applied to the field of medicine, is a broad term referring to efforts to change the current system of medical malpractice. As already noted, tort law encompasses areas in addition to medical malpractice, and so in certain contexts, tort reform can also refer to efforts to bring reform to other precincts of tort law, such as products liability. The discussion of tort reform herein is limited to proposed reforms of the medical malpractice system, for which a more precise term is medical liability reform.18 Many of the proposals surrounding medical liability reform have focused on the goal of reducing the liability risk of physicians. One commonly proposed medical liability reform measure is to limit (or “cap”) noneconomic damages, such as those awarded for pain and suffering. Caps on noneconomic damages appear to be effective in decreasing the size of malpractice payments.18,38,51,52 It is fairly clear that such caps also decrease malpractice insurance premiums, although they may only do so to a limited extent. Some other medical liability reforms that have been implemented in some states are listed in Table 2. In general, the evidence regarding the effects of these different medical liability reforms shows limited to no lowering of malpractice claims or costs.38
Table 1 Legal reporting requirements for physician malpractice payments and adverse actions National Practitioner Data Bank
a
State Physician Malpractice Information Web Sites
Information always included
Malpractice payments resulting from a trial Malpractice payments resulting from a settlement Medical licensing board disciplinary actions Hospital disciplinary actions Professional society disciplinary actions
Malpractice payments resulting from a trial
Information sometimes included (varies by state)
Not applicable
Malpractice payments resulting from a settlementa Medical licensing board disciplinary actions Hospital disciplinary actions Criminal convictions
Entities that can access the information
Hospitals and other health care entities State licensing boards Professional societies Physicians obtaining information about themselves
Public
Some state Web sites only report settlements above a certain dollar-amount threshold. Some states only report settlements once a certain number of settlements have been made.50
Table 2 Some traditional medical liability reforms Description
Pretrial screening or medical panels
These panels determine whether the claim meets a standard of merit (usually easier to prove than negligence). The main goals are to screen out nonmeritorious or frivolous claims and to speed the resolution of disputes. Even if a panel rejects the claim, the plaintiff may still be able to move forward (though in some states this may require additional steps, such as posting a bond to cover legal expenses for the defense)
Certificate-of-merit requirement
A certificate-of-merit requirement obliges the claimant to produce an affidavit from a medical expert attesting to the merit of the claim before the claim can go forward. The goal is to implement procedural steps to deter frivolous or nonmeritorious claims
Limits on attorney fees
Typically, attorneys who bring malpractice cases are paid a percentage of the payment the claimant receives (known as a contingency fee arrangement). Limitations on the percentage or absolute amount attorneys can collect in fees are designed to deter attorneys from bringing claims that are unlikely to be successful
Joint-and-several liability (JSL) reform
JSL is the common law doctrine that, when an award is made against multiple defendants, any one of them can be held responsible for the entire award. JSL allows claimants to collect an entire award from a hospital or physician with generous malpractice insurance or “deep pockets.” JSL reforms typically limit what defendants owe to their proportion of “fault” in the case
Statutes of limitations and repose
Statutes of limitation require malpractice claims be filed within a given period of time after the injury is discovered (or should reasonably have been discovered), whereas statutes of repose require claims be filed within a given period of time after the injury occurred (without regard to when it was or could have been discovered). The goal is to make cases easier to resolve by having them adjudicated closer to the time of injury, and to reduce long-term uncertainty for providers and malpractice insurers
Data from Refs.1,18,38,53
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Reform
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11. What new approaches are being taken to reduce malpractice risk and costs? The Agency for Healthcare Research and Quality (AHRQ) has recently funded several demonstration projects related to medical liability innovation. Many traditional efforts at medical liability reform, such as limiting noneconomic damages, have focused primarily on reducing the liability exposure of physicians. The new demonstration projects being tested, however, seek not only to reduce the liability exposure for physicians, but also more broadly aim to improve the performance of the overall liability system while simultaneously enhancing patient safety.18 Several of the AHRQ grants are designed to evaluate disclosure-and-offer programs implemented at various health care institutions. These programs seek to leverage the increased transparency that comes with disclosure-and-offer programs to better couple risk management and patient safety efforts.54 An additional innovation involves assigning malpractice claims for a designated group of hospitals to a defined group of judges who are specially trained in adjudicating medical malpractice claims. A specific judge handles a case from beginning to end, allowing the judge to facilitate settlement. Another project seeks to evaluate “safe harbors” for physicians. According to this concept, physicians who adhere to evidence-based medical practice would receive increased legal protection against a malpractice claim. This protection would lead, it is hoped, to greater standardization of care and safety.18,54–56 12. What should one do if one is the subject of a medical malpractice claim? Being the subject of a medical malpractice claim can be intensely stressful.57 Many medical societies have support programs for physicians facing a malpractice claim.58 Data show that by age 65 years, internists have an 88.5% chance of having faced a malpractice claim, and so need to realize that they are not alone.8 Although it can be important to talk about the stress of a malpractice case with colleagues, unless done as part of safety or improvement efforts, discussion of the particular medical details of the case should be handled with caution, as such conversations may not be privileged (and thus can be subject to discovery and used in court). Conversations with one’s attorney or a physician with whom one has a formal physician-patient relationship are privileged.59 Demystifying the legal process that occurs once a medical malpractice claim is made can help reduce anxiety. Once it receives a malpractice claim, a malpractice insurer will assign a claims adjuster and defense attorney to the case. These individuals can be resources to a physician in obtaining information about the legal process. The process of resolving a medical malpractice claim can be protracted, often taking 4 to 5 years.58–62 REFERENCES
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6. Hurwitz B. How does evidence based guidance influence determinations of medical negligence? BMJ 2004;329(7473):1024–8. 7. Hoff TH, Whitcomb WF, Williams K, et al. Characteristics and work experiences of hospitalists in the United States. Arch Intern Med 2001;161(6):851–8. 8. Jena AB, Seabury S, Lakdawalla D, et al. Malpractice risk according to physician specialty. N Engl J Med 2011;365(7):629–36. 9. Alpers A. Key legal principles for hospitalists. Am J Med 2001;111(9B):5S–9S. 10. Alpers A. Key legal principles for hospitalists. Dis Mon 2002;48(4):197–206. 11. Brennan TA, Sox CM, Burstin HR. Relation between negligent adverse events and the outcomes of medical-malpractice litigation. N Engl J Med 1996;335(26):1963–7. 12. Studdert DM, Mello MM, Gawande AA, et al. Claims, errors, and compensation payments in medical malpractice litigation. N Engl J Med 2006;354(19):2024–33. 13. Taragin MI, Willett LR, Wilczek AP, et al. The influence of standard of care and severity of injury on the resolution of medical malpractice claims. Ann Intern Med 1992;117(9):780–4. 14. Farber HS, White MJ. Medical malpractice: an empirical examination of the litigation process. Cambridge (MA): National Bureau of Economic Research; 1990 (NBER Working Paper No. 3428). 15. Bishop TF, Ryan AK, Casalino LP. Paid malpractice claims for adverse events in inpatient and outpatient settings. JAMA 2011;305(23):2427–31. 16. Localio AR, Lawthers AG, Brennan TA, et al. Relation between malpractice claims and adverse events due to negligence. Results of the Harvard Medical Practice Study III. N Engl J Med 1991;325(4):245–51. 17. Studdert DM, Thomas EJ, Burstin HR, et al. Negligent care and malpractice claiming behavior in Utah and Colorado. Med Care 2000;38(3):250–60. 18. Kachalia A, Mello MM. New directions in medical liability reform. N Engl J Med 2011;364(16):1564–72. 19. Levinson W, Roter DL, Mullooly JP, et al. Physician-patient communication. The relationship with malpractice claims among primary care physicians and surgeons. JAMA 1997;277(7):553–9. 20. Beckman HB, Markakis KM, Suchman AL, et al. The doctor-patient relationship and malpractice. Lessons from plaintiff depositions. Arch Intern Med 1994; 154(12):1365–70. 21. Danzon PM. Medical malpractice: theory, evidence, and public policy. Cambridge (MA): Harvard University Press; 1985. 22. Hickson GB, Federspiel CF, Pichert JW, et al. Patient complaints and malpractice risk. JAMA 2002;287(22):2951–7. 23. Stelfox HT, Gandhi TK, Orav EJ, et al. The relation of patient satisfaction with complaints against physicians and malpractice lawsuits. Am J Med 2005; 118(10):1126–33. 24. Johnson D. A $42 Million Gift aims at improving bedside manner. The New York Times. September 22, 2011:A14. 25. Fox BC, Siegel ML, Weinstein RA. “Curbside” consultation and informal communication in medical practice: a medicolegal perspective. Clin Infect Dis 1996; 23(3):616–22. 26. Schaffer AC, Beshara N. Medical malpractice. In: McKean S, Ross J, Dressler D, et al, editors. Principles and practice of hospital medicine. New York: McGraw Hill; 2012, in press. 27. Leape LL, Brennan TA, Laird N, et al. The nature of adverse events in hospitalized patients. Results of the Harvard Medical Practice Study II. N Engl J Med 1991; 324(6):377–84.
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48. Satiani B. The National Practitioner Data Bank: structure and function. J Am Coll Surg 2004;199(6):981–6. 49. Massachusetts Board of Registration in Medicine On-Line Physician Profile Site. Available at: http://profiles.massmedboard.org/MA-Physician-Profile-Find-Doctor. asp. Accessed September 27, 2011. 50. Helland E, Lee G. Bargaining in the shadow of the website: disclosure’s impact on medical malpractice litigation. Am Law Econ Rev 2010;12(2):423–61. 51. Hyman DA, Black B, Silver C, et al. Estimating the effect of damages caps in medical malpractice cases: evidence from Texas. The Journal of Legal Analysis 2009;1:355–409. Available at: http://jla.oxfordjournals.org/content/1/1/355.short. Accessed March 22, 2012. 52. Kilgore ML, Morrisey MA, Nelson LJ. Tort law and medical malpractice insurance premiums. Inquiry 2006;43(3):255–70. 53. Mello MM, Kachalia A, Goodell S. Medical malpractice—update. Princeton (NJ): The Robert Wood Johnson Foundation; 2011. 54. Mello MM, Gallagher TH. Malpractice reform—opportunities for leadership by health care institutions and liability insurers. N Engl J Med 2010;362(15):1353–6. 55. Mello MM, Brennan TA. The role of medical liability reform in federal health care reform. N Engl J Med 2009;361(1):1–3. 56. Agency for Healthcare Research and Quality. Medical liability reform and patient safety: planning grants. Available at: http://www.ahrq.gov/qual/liability/planninggrants.htm. Accessed November 1, 2011. 57. Charles SC, Wilbert JR, Franke KJ. Sued and nonsued physicians’ self-reported reactions to malpractice litigation. Am J Psychiatry 1985;142(4):437–40. 58. Samkoff JS, Gable GK. Coping with the stress of litigation. Pa Med 1991;94(3): 18–20. 59. Charles SC. Coping with a medical malpractice suit. West J Med 2001;174(1): 55–8. 60. ACOG Committee on Professional Liability. Coping with the stress of malpractice litigation. Int J Gynaecol Obstet 2001;74(1):65–6. 61. Gray RW. Dealing with malpractice stress, part I. Tenn Med 2006;99(6):30. 62. Gray RW. Dealing with malpractice stress, part II. Tenn Med 2006;99(7):67.
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