Looking for hot spots in the liability danger zone

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.

Denial has never been an effective strategy, said Rick Boothman, chief risk officer of the University of Michigan Health System, whose work has focused on risk management in healthcare settings. Not only does it fail to reduce claims, studies show, but stifling discussion about errors can have a lasting and negative impact on the quality of care.

“Everybody bemoans how much they spend on medical malpractice costs, but they don't differentiate between claims that are meritorious versus those that are not,” he said. Looking at larger data sets can help to do that.

It's understandable that physicians fear medical malpractice claims. A recent Medscape survey of nearly 4,000 physicians found that 59% had been sued at least once during their career. A 2014 study published in JAMA Internal Medicine found that fear of frivolous lawsuits may be so pervasive it has significantly changed how doctors approach diagnosis. Nearly a third of doctors practice what is known as defensive medicine: ordering unnecessary tests or procedures to inoculate themselves from liability claims.

Looking broadly at claims filed against hospitals, health systems and physician groups offers a radically different approach. It enables leaders to focus their improvement efforts. It can be especially effective in specialties prone to lawsuits.

The Medscape survey found that 79% of orthopedists, 85% of obstetrician-gynecologists and 83% of general surgeons had been part of a malpractice suit, making these arenas ripe targets for a data-driven approach.

Some malpractice insurers have formed collaborations with hospitals and physician groups to analyze their claims. They delve into data collected by the shared liability insurer and use the findings to institute process changes or create best practices.

Since 2010, the Doctors Co. has released several reports using closed claims data from lawsuits filed against its more than 77,000 members, which include the 21-physician Kerlan-Jobe group. The reports have focused on specialties such as obstetrics, cardiology and orthopedics. The group found that more than one-fifth of 882 obstetrical claims that closed between 2007 and 2014, and a fourth of 429 cardiology claims that closed between 2007 and 2013, were related to delays in treatment caused by poor patient assessment or diagnosis errors.

Dr. Sandeep Mangalmurti, a cardiologist at the Bassett Medical Center in Cooperstown, N.Y., worked with the Doctors Co. to create a cardiology malpractice registry to track heart-related lawsuits nationwide. They found that even when the side effects of certain heart drugs were well-known, patients were often surprised when they suffered the effects and wanted to sue.

His practice wants to use the findings to set up electronic health-record warnings for high-risk drugs, which trigger in-depth discussion with patients undergoing procedures requiring their use. “Practicing physicians want information that identifies liability pitfalls in their day-to-day practice,” he said. “If you're aware that certain scenarios are associated with a higher number, you're going to be more prudent.”

Another analysis of more than 1,895 claims filed against orthopedists found that more than 500 were attributed to patient factors, such as not adhering to the treatment plan or keeping follow-up appointments. Gambardella, who sits on the Doctors Co.'s orthopedic advisory committee, says the research inspired him to look more carefully at the legal cases filed against specialists in the Kerlan-Jobe orthopedic group.

They found that while the pre-surgery assessment focused on issues such as the risks of surgery and the patient's health insurance, it failed to delve into post-surgery expenses that were billed by other specialists, nutritionists or physical therapists.

Malpractice case registries also helped hospitals focus on patient appropriateness in the pre-surgery assessment. The Hospitals Insurance Co., a professional liability insurer based in New York City, formed a malpractice insurance collaborative with a group of hospitals in 2011. It found tunnel vision often blurred clinicians' views to a patient's risks during the pre-surgical assessment.

While a cardiac surgeon might have extensive conversations with a patient about his or her heart before a procedure, the cardiologist wasn't focused on the “other organ systems like the lungs, liver or kidney. It's not optimal care,” said Dr. David Feldman, the insurer's chief medical officer. When problems occurred in those parts of the body after surgery, patients were more likely to sue.

The collaboration in-cludes Maimonides Medical Center, and the Mount Sinai and Montefiore health systems, all in New York City. After discovering 40% of the assessments that cleared patients for surgery did not list patients' other chronic conditions, Montefiore made filling out a full patient assessment a “hard stop.”

“You could not go into the OR if it hadn't been completed,” said Dr. Calie Santana, the hospital's associate director of quality.

One of the largest datasets comes from CRICO, whose Comparative Benchmarking System contains more than 300,000 medical malpractice cases, or 30% of all filings. A 2014 analysis found that between 2008 and 2012, a fifth of the cases alleged failures in diagnosis.

A National Academies of Sciences, Engineering and Medicine report estimated that about 5% of outpatients are improperly diagnosed each year and 10% of patient deaths from medical errors are due to misdiagnoses. The report called diagnostic errors a “persistent blind spot” in the quality-improvement movement and recommended changes to the legal environment to facilitate the timely identification and disclosure of diagnostic errors.

The rising focus on use of malpractice data as an improvement tool is “nice to see, but probably way overdue,” said the University of Michigan's Boothman. For the past 12 years that system's office of clinical safety has provided detailed breakdowns about lawsuits and patient complaints to every department to identify risk-management opportunities. It organizes staff education events with lists of practical recommendations about how to ameliorate those risks.

“Everything a physician does has risks, whether it's giving an antibiotic or a cardiac procedure,” he said. “The more the patient can understand the difficulties, the problems and the challenges, the less likely it is that they will end up in court.”