Risk management—in any field—attempts to identify and control hazards to prevent or minimize risks. Ideally, managing risk becomes part of an organization’s culture, with an emphasis on human factors and behavior.
Traditional risk management in medical tort liability has focused on defending claims. (See “The surgeon’s role in assisting defense counsel” and “Tips and pointers for depositions,” AAOS Now, November 2010.)
This “secondary prevention” is important and also includes understanding insurance, laws and their evolution, effective record keeping, compliance with protocols and guidelines (as appropriate), and the widely discussed practice of defensive medicine—either avoiding high risk cases or ordering tests and treatments primarily to provide defense against potential liability claims.
Secondary prevention, however, does little to directly address the root causes of medical liability lawsuits. About one third of all orthopaedic surgeons are sued every year, but plaintiffs prevail in only 14 percent of jury verdicts.
Primary prevention aims to prevent the root causes of medical liability lawsuits—patient injury and suboptimal patient–physician relationships and communication. Richard Boothman, chief risk officer for the University of Michigan Health System, tells the story of a plaintiff patient who told the defendant doctor that she would never have sued—if only she had known the events of her injury that she learned during the trial! Attention to primary prevention, more importantly, enhances patient and physician satisfaction and the overall quality of care.
Examples of primary prevention risk management efforts include training physicians in delivering culturally competent care, improving their communications skills, and preventing errors through programs such as Sign-Your-Site, the Universal Protocol, and the Communications Skills Mentorship Program.
Tort risk management
Risk management efforts should also address the “fallouts” and “creep-ins” of medical liability.
“Fallouts” refer to outcomes beyond the financial and the “win” or “lose.” The patient and family sustain not only physical injury and economic loss, but also an emotional loss. A continued healthy patient–physician relationship and an effective apology may help mitigate this, and physicians would benefit from appropriate training.
After a patient injury, however, the involved physician and team (appropriately termed the “second victims”) may also experience emotional consequences as a fallout from a lawsuit or the very occurrence of the injury, avoidable or not. They also need support. Inadequate attention has been paid to this emotional aspect of risk management, despite evidence showing serious adverse effects on the physician, the team, and the patient’s family, as well as on the physician’s future care of other patients and the potential for error.
Such training and support for physicians are key requisites for the success of “disclosure and early offer programs,” such as those discussed in the September 2010 issue of AAOS Now, as alternatives to the current liability system.
“Creep-ins” are the extraneous factors in today’s complex health system that may inadvertently compromise professionalism, performance, or even patient safety. Often, these accompany new technologies such as electronic medical records or rapid advances in instrumentation, implants, and procedures. Surgeons need to be particularly careful in adopting advancements and be mindful of individual and collective professional learning curves and technology “bugs.”
Use of electronic medical records (EMR) poses its own tort risks. EMR systems may also make it easy for erroneous information, once entered, to take a life of its own with potential adverse downstream effects for the patient.
Risks not covered by insurance
While tort concerns are overwhelming, some risks, generally not covered by liability insurance, may threaten a physician’s license, hospital privileges, participation in health insurance programs, and ability to practice.
An increasing number of rules and regulations from licensing bodies, government and other agencies, hospitals, and insurance and other payment intermediaries, combined with escalating demands for accountability, transparency, and reporting to centralized data banks comprise this area. For example, the National Practitioner Data Bank collects information on sanctions and other actions against healthcare professionals; the Healthcare Integrity and Protection Data Bank collects information on insurance and billing violations and health plan exclusions.
Non-compliance with Medicare regulations, for instance, may lead to penalties, suspension of participation in the program, or action by the Inspector General, which may have a ripple effect on participation in other insurance and hospital programs.
Help us help you
The AAOS Medical Liability Committee strives to anticipate the changing times and needs of AAOS members and to address them through Orthopaedic Risk Manager articles in AAOS Now. The committee urges readers to provide feedback and let us know whether the scope, breadth, and depth of these writings are of value to you and suggestions for topics you would like addressed. Contact us at firstname.lastname@example.org
S. Jay Jayasankar, MD, is a member of the AAOS Medical Liability Committee and serves as a contributing editor to the Orthopaedic Risk Manager section of AAOS Now.
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