Only when surgeons at the Los Angeles-based Kerlan-Jobe Orthopaedic Clinic began analyzing their malpractice data did they discover patient finances often determined when the group got sued.
The 2014 evaluation of the cases also revealed a stunning disconnect in patient communication. Pre-surgical conversations rarely covered post-surgery costs, even though patients often got hit with bills for physical therapy, special equipment and dietary counseling after an orthopedic procedure. Those unexpected expenses angered patients, who did not fully understand how the services related to the surgery's outcome.
“It's too late to have the conversation after the fact,” said clinic Chairman Dr. Ralph Gambardella. “If the patient can't afford therapy, maybe they don't get the best outcome. When they're disappointed in the results, a claim is made.”
Last year, the clinic added financial screening to surgical assessments and began working collaboratively with outside specialists. And this month it introduced a smartphone app that sends patients alerts on follow-up appointments and medication schedules.
For years, physician practices looking to lower their malpractice claims failed to tackle internal quality problems until they were hit with a huge settlement. That invariably meant they focused only on those particular situations. But now that's beginning to change.
Liability insurers and providers are grouping and analyzing all their malpractice claims in large databases to identify what they are calling liability danger zones.
“You immediately capture the attention of doctors who are very interested in knowing their risk,” said Dr. David Troxel, medical director of the Doctors Co., a physician-owned liability insurer based in Napa, Calif. “Once they know that, they become much more focused on a problem.”
The new focus on liability claims that don't result in payouts is the latest wrinkle in a decadelong movement to reduce the frequency of malpractice cases. Many states have changed tort laws to limit the ability of patients to sue. So-called “I'm sorry” laws in some states are encouraging apologies, in which providers admit medical mistakes to patients, by preventing them from being used in courtrooms.
The efforts are working in terms of reducing payouts. Paid malpractice claims against medical doctors fell from 18.6 to 9.9 paid claims per 1,000 physicians between 2002 and 2013, according to a 2014 study in JAMA. And for the past seven years, the amount paid per claim has declined in inflation-adjusted dollars by 1.1% a year on average. Medical malpractice premiums collected by insurers have been falling in recent years.
But making it tougher to sue or encouraging apologies doesn't get at the root cause of many of the lawsuits, which are internal quality problems. An approach to malpractice that takes into account all claims no matter what the outcome can unveil problems in clinical practice that remain unaddressed because, ironically, physicians and healthcare systems are still afraid of being sued.