A hospital review or professional safety committee may serve as a central clearing facility for concerns about potential medical liability situations.
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Published 9/1/2015
John P. Lyden, MD

Mitigating Against Lawsuit Loss

Lessons learned from the Hospital for Special Surgery

As orthopaedic surgeons, we are likely to be sued at some point in our careers. Some of us have been sued already. Whatever our status, each of us as individuals—as well as our group practices—should have a proactive approach toward risk mitigation. We should also have appropriate strategies in place to handle patient problems that have the potential for becoming lawsuits.

At the Hospital for Special Surgery (HSS), where I practice, several risk management strategies and risk mitigation programs have been instituted to address these situations. Perhaps the lessons learned and the ideas implemented will be useful to other orthopaedic surgeons and groups.

Be proactive
First and foremost, it is important not to hide the bad outcomes or pending litigation but to address them head on and proactively. Bad outcomes occur and are unpleasant, but they should not be a source of embarrassment or panic when litigation is threatened.

A lawsuit does not mean you are a bad physician. It is, in fact, a cost of doing business. If and when you are notified of an intent to file a lawsuit, it is important that you get to know your attorney and make him or her a member of your team. Your attorney is not a physician, and you are not an attorney. Teaching each other will help clarify the situation.

Attorneys have heard multiple stories about physicians, and physicians probably have a built-in aversion to the legal process. But, nonetheless, it is vital that you work as a team and educate one another. Practicing your responses to tough questions is important. Learning to think like a plaintiff may help resolve difficult situations before they actually progress to litigation.

Be frank
A frank face-to-face discussion with the patient in your office about a less-than-ideal outcome sets the stage and should be carefully recorded in the patient’s record. Keeping the patient informed—initially with the outcome discussion and later through follow-up calls—helps reassure the patient that you are dealing with the problem, thinking about the patient’s needs, and available to help as necessary.

Patients who feel abandoned or thrust out into “the system” will often seek other opinions, which may or may not be beneficial. As the surgeon, you have to call frequently, personally, and talk to the patient. Do not use a physician assistant or allow a hospitalist to speak for you. It is important that you address the issue(s) directly.

Involve your institution
Report potential liability concerns to the appropriate review committee at your institution. HSS collates early reporting from various sources. For example, patient satisfaction surveys can provide information on patients’ feelings about the way they were treated by the hospital’s doctors, nurses, and office staff. The information is collected through an anonymous reporting system and analyzed by the staff and doctors in risk management.

Another example is an anonymous internal reporting system available to nurses, physicians, aides, and technicians that enables anyone to report occurrences of adverse events or adverse patient outcomes to a central clearing facility.

The HSS professional safety committee receives these and other reports from patients through physician offices, hopefully early in the evolution of the problem. Reports are reviewed by physicians, not nurses (who often emphasize different issues, based on their perspective), and responses are presented with a high degree of candor.

The committee examines the treatment provided and looks at the situation from the plaintiff’s counsel’s or expert’s perspective (right or wrong). It collects information pertaining to the complaint, such as billing or communication with the institution. The committee then makes recommendations for special services the hospital can provide to the patient, such as a second opinion, transportation, special nursing, bill reduction, nursing charges, pain management, or infectious disease, neurology, or physical therapy support.

If any of the patient’s insurance benefits run out, this kind of support is particularly helpful. It also results in less hassle, ensures that the patient receives appropriate medical care, and keeps the patient within the system. Over time, this proactive system has proved to be very cost-effective.

Keep communications open
The most dangerous situation is a bad outcome coupled with what the patient feels is abandonment, a lack of compassion, or an untimely response or answer to complaints. Unfortunately, in many offices, physician assistants, nurses, or secretaries may block patient contact with the physician. Attempting to keep phone calls to the attending physician to a minimum can lead to considerable miscommunication and missed danger signs of developing complications. Even when the surgeon refers a patient to another physician, the referring surgeon should keep in touch.

Our system emphasizes early reporting to risk management, which we believe will, over time, diminish the cost, reduce hassle, and facilitate the provision of appropriate medical care for patients. Our professional safety committee for risk mitigation involves nurses, doctors, and orthopaedic residents. Together, they discuss adverse events, claims, or suits. They offer support to both the attending physician and the patient. For example, they may offer advice to the physician and discuss possible revisions or corrective surgery with the patient.

All too often, it is not complex procedures that lead to lawsuits, but poor outcomes from routine surgeries or results that do not meet the patient’s high expectations. The largest payouts may result from the most routine procedures, proving that surgeons should not become complacent or take these procedures for granted.

Positive results
The objective is always to provide top quality medical care for patients and to optimize outcomes by managing complications or other adverse events. Surgeons may be concerned about their reputations and want to avoid reporting or a trial. An early warning, no-fault, candid approach is by far the best way to address these situations. A peer review process—during which participants come to the table with an open mind and, in light of their own experiences, help each other and their colleagues—can be an effective way to deal with a problematic situation. Hiding a problem is never an effective response.

Using this approach, HSS has been able to reduce the ultimate cost of adverse events. We have found that early proactive management that addresses the issues appropriately can dramatically reduce the final disposition cost.

In general, the problem is not just about the medical outcome. It is more about the patient’s anger, unexpected pain, and other postoperative issues, including communication problems such as avoidance, a “lack of answers,” and feelings of abandonment. These problems can be addressed by reaching out to patients early with a concerted plan and convincing plaintiff attorneys that the situation has been addressed and little merit can be derived from taking the case to court.

A smooth relationship among the patient, the physician, and the hospital staff is ultimately the most important aspect of any adverse event. A hostile patient finds fault, but a pleased patient will accept a less-than-perfect result.

John P. Lyden, MD, is professor of clinical orthopaedic surgery at the Weill Medical College of Cornell University, an attending orthopaedic surgeon at the Hospital for Special Surgery, and a member of the AAOS Medical Liability Committee.

Editor’s note: Articles labeled Orthopaedic Risk Manager (ORM) are presented by the Medical Liability Committee under the direction of Robert R. Slater Jr, MD, ORM editor. Articles are provided for general information and are not legal advice; for legal advice, consult a qualified professional. Email your comments to feedback-orm@aaos.org or contact this issue’s contributors directly.