The Journal of The DuPage County Bar Association

Back Issues > Vol. 10 (1997-98)

The Misdirected Search for Malpractice Solutions
By David Karp Copyright © by David Karp.

Reprinted by permission from Medical Economics Magazine: October 13, 1997.

This article first appeared in longer form in Medical Practice Management.

The medical profession’s search for solutions to malpractice litigation has largely focused on tort reform. Restricting patients’ ability to sue, limiting monetary damages patients can recover, and reducing the period in which they can sue are the main goals of both state and federal tort reform efforts.

Trouble is, even when the most desired tort reforms are implemented, as they were in California in 1975, the malpractice problem doesn’t go away. While premiums have declined in states that have enacted rigorous tort reform, claims frequency continues to climb. The adjudication cost remains a multibillion dollar burden on the health professions.

The most sought-after tort reforms haven’t solved the malpractice problem for a simple but rarely mentioned reason: None reduces negligence, careless acts, or the non-medical causes of injury, such as damaged doctor-patient relationships, incomplete or erroneous documentation, or other preventable causes of physical and emotional injuries. These are the catalysts for most malpractice litigation.

Moreover, the key reforms physicians and hospitals want aren’t as beneficial to defendants who win their malpractice cases as they are to those who lose. Monetary caps on damages, allowing a defendant to pay off large awards in installments, and the admissibility of collateral source payments (to prevent double recovery of damages)—three of the most desired reforms—are moot issues for the defendant who wins his or her case. These reforms reduce the burden of the defendant who has been judged guilty of professional negligence and is assessed a substantial penalty. In other words, the most coveted tort reforms don’t prevent malpractice litigation; they only alleviate the pain of being sued and losing a case.

"Unmeritorious" doesn’t necessarily equal "frivolous"

Many physicians believe that most malpractice claims are frivolous. They are not. Only a handful of bogus malpractice claims surfaces every year. Insurers and defense attorneys rarely are duped by professional litigants or by the malingerers and scam artists often associated with frivolous workers’ compensation, automobile, and product liability claims.

Most malpractice claims may be unmeritorious, but they’re not frivolous. Unmeritorious cases are those in which a plaintiff erroneously equates injury or a less-than-desired outcome with negligent treatment. It is only after unsuccessful litigation that many plaintiffs understand these basic legal concepts:

(1) Regardless of outcome, a physician isn’t negligent if he or she possessed and exercised the same degree of skill and learning reputable peers possessed and would have exercised under similar circumstances.

(2) The law neither requires physicians to be perfect nor judges them solely on the outcome of their care and treatment.

(3) Medicine is still not an exact science, as the adage reminds us.

The law therefore gives physicians broad latitude to make skilled judgments, recognizes a diversity of treatments, and doesn’t consider a physician’s inability to cure or resolve a condition indicative of incompetence or negligence.

Practically speaking, exonerated malpractice defendants have little recourse against plaintiffs who sued them on the erroneous assumption that bad outcomes result only from bad care. Countersuits are costly and rare. Winning one is even rarer, because the doctor must prove the plaintiff’s case was capricious, fraudulent, or utterly lacking in merit. Though personal injury attorneys usually are compensated only for their victories, our legal system doesn’t penalize them for "gambling" on cases of questionable merit or for suing first and asking questions later. Plaintiffs’ attorneys receive subtle encouragement to sue by insurers that routinely settle defensible, unmeritorious claims solely to avoid the expense of litigation. Prelitigation screening panels that some states use to weed out unmeritorious claims have been only moderately successful.

How doctors could greatly reduce litigation

As is the case in medicine generally, malpractice prophylaxis is more effective and less expensive than "treatment," but apparently less popular. Almost 100 years ago, George Santayana said, "Those who cannot remember the past are condemned to repeat it." Physicians sued for malpractice today are confronted with most of the same allegations their predecessors have faced for decades. But many physicians still are unfamiliar with the recurring malpractice allegations against their specialty.

In its series of studies of breast, colon, and lung cancer paid claims, the Physician Insurers Association of America (PIAA) found that many defendant physicians who lost their case:

Ø Omitted routine exams or tests.

Ø Didn’t take adequate medical and family histories.

Ø Didn’t communicate effectively with patients or with other physicians.

Ø Didn’t follow the patient appropriately.

Ø Didn’t meaningfully document their care and treatment.

Many physicians contend that the threat of malpractice litigation forces them to practice "defensive medicine," code words for unnecessary diagnostic tests or treatment. The PIAA studies suggest that the omission of routine care and safeguards is what got physicians into difficulty. They weren’t being sued because they failed to provide extraordinary or unnecessary tests or treatment. Doctors who reviewed claims data for the PIAA concluded that cases were lost because defendants’ care and treatment weren’t consistent with the standards of medical practice established by their own peers or because inadequate documentation made it difficult to distinguish between acceptable and negligent care.

Anesthesiologists who were once one of the most sued medical specialties appear to have heeded Santayana’s warning and demonstrated that loss prevention measures reduce medical liability. In 1986, based on reviews of past litigation experience, the American Society of Anethesiologists created standards of practice aimed at eliminating many of the medical and non-medical issues that made their specialty an easy target, even in cases in which anesthesia management was not the cause of the adverse outcome.

During the next 10 years, as a result of compliance with these standards and anethesiologists’ heightened awareness of the issues involved in anesthesia litigation, the number of malpractice claims against the specialty noticeably declined, as did the specialty’s malpractice premiums.

In a similar vein, the American College of Obstetricians and Gynecologists has promulgated standards, treatment guidelines, and documentation aids that, when physicians use them, reduce patient injuries and litigation.

Past claims experience offers insights into the causes and prevention of malpractice claims. Liability experts have identified three loss prevention measures physicians and hospitals must take to have an appreciable impact on the malpractice problem:

1. Know why patients in your specialty sue

Prudent physicians don’t begin treatment without trying to identify the patient’s medical problem. Likewise, physicians can’t resolve their malpractice dilemma without "diagnosing" the reasons patients sue. To reduce their liability exposure, they must know about the leading allegations in malpractice claims against their specialty. These claims follow well-established patterns.

For example, the failure to diagnose cancer and the failure to diagnose and treat heart disease have been the top allegations against primary-care specialists for over 20 years. Like the anesthesiologists, other specialties must evaluate past malpractice claims experience and promulgate, disseminate, and then follow guidelines acceptable to them for diagnosing and treating those conditions that pose the greatest risk of medical injury to their patients and the greatest liability risks to themselves.

This task is not as daunting as it might seem. Most specialties have begun work on, and many already have developed, practice guidelines. These are flexible recommendations, not unbending rules. Such guidelines, which some physicians still consider "cookbook medicine," are an inherent part of medicine and have always existed, whether or not they’re in written form.

In every malpractice case that goes to trial, a medical expert for the plaintiff must testify that the defendant(s) did not follow accepted medical practices. If a medical specialty has not promulgated its own practice guidelines, plaintiffs’ experts can and do claim that their views reflect the prevailing standards of care.

There are no nationally accepted criteria for credentialing medical experts, some of whom have limited clinical experience. Because virtually any physician can declare his or her positions are the standards of care, the same malpractice case tried in Atlanta, Phoenix, and San Francisco could have substantially different outcomes.

2. Don’t let sloppy records undermine your case

Aside from the medical care itself, no single factor has more importance in litigation than the documentation of that care by physicians, nurses, and other health professionals. Adequate records protect patients from injury and are the cornerstone of defense in every malpractice case. More malpractice cases are settled or lost in trial because of the poor quality of records than because of the poor quality of care.

In our society, meaningful documentation is a sine qua non for many important and routine transactions. Imagine a home inspection report that only says, "looks fine." Or a $200 restaurant check for "some food." Or a contract for a major purchase that’s not even written or signed until weeks after money has changed hands. None of us would tolerate such documentation shortcomings in everyday life.

Nevertheless, many medical records, on which present and future care or the defense of a malpractice case depend, suffer from similar vague language, lack of detail, and untimely preparation. Medical records are legal documents. Patients have access to them; they often are evidence in various legal situations, such as proceedings involving employment, insurance, workers’ compensation, adoption, and child custody, to name a few. Weak records are the most generous gift physicians and hospitals give to plaintiffs’ attorneys whose goal it is to convince a jury of the facts that a bad outcome was not an acceptable complication of appropriate treatment, or an act of God or Nature, but instead was the result of negligence committed by an incompetent or inattentive healthcare professional.

The malpractice problem is not likely to be resolved until physicians recognize the importance of maintaining timely; adequate, and meaningful records and make a serious effort to improve historically poor documentation practices. Hundreds of articles have been written about how to do this. Help also is available from liability insurance companies. No other profession tolerates the poor documentation practices many physicians tacitly condone.

3. Tell patients more—and criticize colleagues less

Claims studies from the early 1970s to the present have found that "communication problems" cause many malpractice claims. Patients have long complained about physicians (and other health professionals) who don’t listen to their concerns, are unavailable to explain and answer questions when complications occur, are arrogant in their speech or demeanor, do not return phone calls, do not explain in plain language what medical care is needed and why, do not dispense information about the safe use of potent medications prescribed, or do not provide sufficient information about proposed surgery so that the patient can give an informed consent or refusal to it.

Some patients initiate legal action simply because they can’t get the physician’s attention any other way. Plaintiffs’ attorneys maintain that many litigants initially sought legal advice not for revenge or compensation but to help them get answers and explanations.

Ironically, at the same time physicians are criticized for not communicating enough, some doctors communicate too much. About a quarter of the malpractice suits one liability insurer studies were traced to critical remarks made by one doctor about another. In none of the cases had the critic reviewed the medical record or discussed the case with the physician being criticized. Interprofessional sniping, or "jousting," as it often is called, still flourishes. Injudicious, uninformed criticism is another valuable gift the medical profession donates to lawyers.

Physicians need to recognize the role their front-desk staff has in promoting or interfering with good doctor-patient relations. They must also appreciate that patients expect their doctor to promptly and clearly inform them about such matters as their test results, surgery risks, medication use and side effects, and managing chronic disease. Every liability insurer and defense attorney, and many physicians, could write a book on these subjects. Some have.

There is nothing mysterious or daunting about the malpractice threat physicians face. Until now, too many physicians have regarded malpractice more like a common cold, to which they have responded with palliative measures that mask but do not eradicate the condition. If more doctors approached malpractice like a treatable condition—that is, if they methodically examined its signs and symptoms to diagnose its etiology, considered feasible options for treatment, and acted decisively to treat it—this scourge that causes so much grief and annually wastes billions of dollars finally would begin to abate. This is the essence of loss prevention.

David Karp is loss prevention manager and was claims manager for Medical Insurance Exchange of California and Claremont Liability Insurance Company, Oakland, California. His malpractice prevention articles have appeared in Medical Economics Magazine, California Physician, California Family Physician, Hospital Physician, Pediatric Annals, Medical Practice Management and numerous other professional liability publications. He is an editorial consultant for Medical Economics Magazine. He is co-author of "Obstetrical Anesthesia and Lawsuits,"

a chapter in the medical text, Anesthesia for Obstetrics, (Shnider and Levinson, ed.) and author of "Medical-Legal Problems Associated with Hospital Admissions,"in the text, Admission Decisions Handbook (E. Taliaferro, ed.).

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