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Hospitalists and medical malpractice
A look at some sobering trends
Among the pressures felt by hospitalists are concerns about being subject to a malpractice claim. Anxiety about malpractice influences the way hospitalists practice, giving rise to defensive medicine.
One survey, which asked hospitalists to retrospectively rate which of their orders represented defensive medicine, found that 28% of orders were deemed defensive.1 Defensive medicine can lead to low-value medical care, drive up health care costs, and potentially subject patients to unnecessary testing.2,3
Encouragingly, medical malpractice claims rates have, overall, been downtrending. An analysis of data from the National Practitioner Data Bank, which is a repository of all paid malpractice claims against individual physicians, found that malpractice claims rates decreased by 55.7% from 1992 to 2014 among all specialties, and by 46.1% for internal medicine physicians.4 The data used in this analysis did not separate hospitalists from other internal medicine physicians. An older study of malpractice claims against hospitalists found that hospitalists had significantly lower claims rates than non-hospitalist internal medicine physicians.5
Current malpractice environment for hospitalists
Seeking to shed light on the current malpractice environment faced by hospitalists, a recent study examined claims against hospitalists using the Comparative Benchmarking System (CBS), a national database of malpractice claims containing approximately 30% of all U.S. malpractice claims, which is maintained by CRICO, the malpractice insurer for the Harvard-affiliated medical institutions.6
Claims in the CBS database are examined by trained nurse coders who review the claims, along with the associated medical and legal records, to understand the contributing factors behind the adverse event leading to the claim.
Contrary to the trends for nearly all other physician specialties, the malpractice claims rates of hospitalists were not downtrending, going from 1.77 claims per 100 physician-years from 2009-2013 to 2.08 claims per 100 physician-years from 2014-2018. The overall claims rate for hospitalists was significantly higher than that for internal medicine subspecialists (though roughly the same as the claims rate for non-hospitalist general internal medicine physicians). These sobering findings raise the important question of why hospitalists claims rates are heading in the wrong direction.
One possible answer relates the ever-broadening scope of hospitalist practice. Hospitalists are being asked to care for surgical patients and other patient populations that they may have less familiarity with, increasing the risk of medical errors. Among the other specialties most commonly also named in hospitalist claims, general surgery and orthopedic surgery are in the top five. The extraordinary growth in the field of hospital medicine has meant a need to hire an increasing number of hospitalists, leading to less-experienced physicians entering the field.
Making hospital medicine safer
A more urgent question than what is driving the trends in hospitalist claims rates is what can be done to avoid adverse events and make hospital medicine safer. One potential answer is thoughtful collaboration arrangements with the surgical and other specialties with whom hospitalists may be co-managing patients.
Questions about who responds to what types of clinical issues that might arise and specific domains of responsibility should be defined in advance, so that a lack of role clarity does not negatively impact patient care. Given that hospitalists will be less comfortable addressing more technical surgical issues, expectations about surgeons’ availability should be established. Nocturnists may be tasked with overnight cross-coverage of patients on services, such as oncology and cardiology, that subspecialty physicians have responsibility for during the day. Agreeing upon triggers for when the nocturnist should contact the daytime subspecialty attending (for example, if a rapid response is called on their patient) should be considered, so that nocturnists are not left deciding, in the moment, whether to call the daytime attending. Measures such as this ensure that everyone’s expectations are aligned. In addition, new hospitalists need to be offered support, in the form of training and mentorship.
CBS malpractice data, which includes the contributing factors underlying what went wrong, illuminates potential targets for programs designed to enhance patient safety. In the recent hospitalist malpractice study, the two contributing factors that were the best predictors of a hospitalist malpractice claim closing with payment to the claimant were clinical judgment errors and communication breakdowns. Identifying measures that are effective in promoting patient safety by refining the clinical judgement of clinicians is a challenge, and there are limited data demonstrating what programs are effective in this area.
Clinical decision support (CDS) systems have shown promise in promoting guideline-concordant care.7 However, the role of CDS in aiding the higher-stakes clinical decisions that may be called into question after an adverse outcome is not well defined. Alerts that a patient may be developing sepsis is one type of CDS that has been extensively studied and has been shown to be of some benefit.8 The importance of clinical judgment to whether payment is made on a malpractice claim can inform risk management strategies. Hospitalists should document the thought process behind their decision making in the chart, especially for important clinical decisions. A note showing that the clinician was thoughtfully weighing the risks and benefits using the data available at the time will help make a case defensible if an adverse outcome occurs.
The effect of communication breakdowns on hospitalist case outcomes highlights the importance of measures to improve and systematize communication among clinicians, particularly at vulnerable junctures – such as handoffs from the day team to the night team, and transitions from one care setting to another. An example of an intervention to improve handoffs with cogent evidence to support it is I-PASS, which is an approach to handoffs between teams in which information about the patient’s illness severity, clinical background, and contingencies is conveyed and synthesized in a structured manner. A study of the effect of implementation of I-PASS among nine pediatric residency programs demonstrated a 30% reduction in preventable adverse events.9
Applying insights from malpractice claims analysis to clinical practice
The systematic review of malpractice cases to determine the contributing factors and other case attributes is an important source of patient safety insights. The process breakdowns described by the contributing factors can inform the design of patient safety initiatives. In addition, malpractice data provides information on which specialties and what types of clinicians are being named together in malpractice claims.
In the hospitalist malpractice study, in addition to general surgery and orthopedic surgery, the other clinical services most commonly subject to claims along with hospitalists were nursing, emergency medicine, and cardiology. Another observation was that physician assistants and nurse practitioners are increasingly being named in hospitalist claims. This information is crucial to guiding who needs to be in the room with hospitalists when efforts are undertaken to enhance patient safety within hospital medicine.
An understandable response to the finding that hospitalist claims rates are not decreasing is for hospitalists to seek ways to lower their risk of being named in a malpractice claim. Of course, avoiding adverse events by providing the safest possible care is paramount. Even when patients do suffer adverse events due to a physician negligence, only rarely, less than 5% of the time, does this result in a malpractice claim.10 Important lessons in risk management can be learned from examining why patients decide to sue when mistakes lead to bad outcomes.
An analysis of plaintiffs’ depositions found that the key reasons that patients decided to file a malpractice claim include a poor relationship with the physician – specifically, a lack of empathy from the physician, feeling deserted by the physician, and feeling devalued by the physician.11 These findings support the use of programs that assist physicians in compassionately disclosing adverse events to patients. Among inpatient physicians, patient satisfaction survey questions about the time the physician spent with the patient and the physician’s concern for the patient are better predictors of the physicians’ risk management performance than is the question about the skill of the physician.12 In the aftermath of an adverse event, focusing on maintaining a strong patient-physician relationship is not only the right the thing to do, the data tell us that it is also a sensible approach to reducing medicolegal risk.
Dr. Schaffer practices as a member of the Hospital Medicine Unit at Brigham and Women’s Hospital, Boston, where he serves as an attending physician on the inpatient general medicine services. An instructor at Harvard Medical School, his academic interests include research using large medical malpractice databases to examine temporal trends in medical malpractice.
References
1. Rothberg MB, et al. The cost of defensive medicine on 3 hospital medicine services. JAMA Intern Med. 2014;174(11):1867-1868. doi:10.1001/jamainternmed.2014.4649.
2. Kachalia A, et al. Overuse of testing in preoperative evaluation and syncope: A survey of hospitalists. Ann Intern Med. 2015;162(2):100-108. doi: 10.7326/M14-0694.
3. Mello MM, et al. National costs of the medical liability system. Health Aff (Millwood). 2010;29(9):1569-1577. doi: 10.1377/hlthaff.2009.0807.
4. Schaffer AC, et al. Rates and characteristics of paid malpractice claims among U.S. physicians by specialty, 1992-2014. JAMA Intern Med. 2017;177(5):710-718. doi:10.1001/jamainternmed.2017.0311.
5. Schaffer AC, et al. Liability impact of the hospitalist model of care. J Hosp Med. 2014;9(12):750-755. doi: 10.1002/jhm.2244.
6. Schaffer AC, et al. Rates and characteristics of medical malpractice claims against hospitalists. J Hosp Med. 2021 Jul;16(7):390-396. doi: 10.12788/jhm.3557.
7. Poon EG. Clinical decision support: a tool of the hospital trade. J Hosp Med. 2015;10(1):60-61. doi: 10.1002/jhm.2295.
8. Makam AN, Nguyen OK, Auerbach AD. Diagnostic accuracy and effectiveness of automated electronic sepsis alert systems: A systematic review. J Hosp Med. 2015;10(6):396-402. doi: 10.1002/jhm.2347.
9. Starmer AJ, et al. Changes in medical errors after implementation of a handoff program. N Engl J Med. 2014;371(19):1803-1812. doi: 10.1056/NEJMsa1405556.
10. Localio AR, et al. Relation between malpractice claims and adverse events due to negligence. Results of the Harvard Medical Practice Study III. N Engl J Med. 1991;325(4):245-251. doi: 10.1056/NEJM199107253250405.
11. Beckman HB, et al. The doctor-patient relationship and malpractice. Lessons from plaintiff depositions. Arch Intern Med. 1994;154(12):1365-1370. doi:10.1001/archinte.1994.00420120093010.
12. Stelfox HT, et al. The relation of patient satisfaction with complaints against physicians and malpractice lawsuits. Am J Med. 2005;118(10):1126-1133. doi: 10.1016/j.amjmed.2005.01.060.
A look at some sobering trends
A look at some sobering trends
Among the pressures felt by hospitalists are concerns about being subject to a malpractice claim. Anxiety about malpractice influences the way hospitalists practice, giving rise to defensive medicine.
One survey, which asked hospitalists to retrospectively rate which of their orders represented defensive medicine, found that 28% of orders were deemed defensive.1 Defensive medicine can lead to low-value medical care, drive up health care costs, and potentially subject patients to unnecessary testing.2,3
Encouragingly, medical malpractice claims rates have, overall, been downtrending. An analysis of data from the National Practitioner Data Bank, which is a repository of all paid malpractice claims against individual physicians, found that malpractice claims rates decreased by 55.7% from 1992 to 2014 among all specialties, and by 46.1% for internal medicine physicians.4 The data used in this analysis did not separate hospitalists from other internal medicine physicians. An older study of malpractice claims against hospitalists found that hospitalists had significantly lower claims rates than non-hospitalist internal medicine physicians.5
Current malpractice environment for hospitalists
Seeking to shed light on the current malpractice environment faced by hospitalists, a recent study examined claims against hospitalists using the Comparative Benchmarking System (CBS), a national database of malpractice claims containing approximately 30% of all U.S. malpractice claims, which is maintained by CRICO, the malpractice insurer for the Harvard-affiliated medical institutions.6
Claims in the CBS database are examined by trained nurse coders who review the claims, along with the associated medical and legal records, to understand the contributing factors behind the adverse event leading to the claim.
Contrary to the trends for nearly all other physician specialties, the malpractice claims rates of hospitalists were not downtrending, going from 1.77 claims per 100 physician-years from 2009-2013 to 2.08 claims per 100 physician-years from 2014-2018. The overall claims rate for hospitalists was significantly higher than that for internal medicine subspecialists (though roughly the same as the claims rate for non-hospitalist general internal medicine physicians). These sobering findings raise the important question of why hospitalists claims rates are heading in the wrong direction.
One possible answer relates the ever-broadening scope of hospitalist practice. Hospitalists are being asked to care for surgical patients and other patient populations that they may have less familiarity with, increasing the risk of medical errors. Among the other specialties most commonly also named in hospitalist claims, general surgery and orthopedic surgery are in the top five. The extraordinary growth in the field of hospital medicine has meant a need to hire an increasing number of hospitalists, leading to less-experienced physicians entering the field.
Making hospital medicine safer
A more urgent question than what is driving the trends in hospitalist claims rates is what can be done to avoid adverse events and make hospital medicine safer. One potential answer is thoughtful collaboration arrangements with the surgical and other specialties with whom hospitalists may be co-managing patients.
Questions about who responds to what types of clinical issues that might arise and specific domains of responsibility should be defined in advance, so that a lack of role clarity does not negatively impact patient care. Given that hospitalists will be less comfortable addressing more technical surgical issues, expectations about surgeons’ availability should be established. Nocturnists may be tasked with overnight cross-coverage of patients on services, such as oncology and cardiology, that subspecialty physicians have responsibility for during the day. Agreeing upon triggers for when the nocturnist should contact the daytime subspecialty attending (for example, if a rapid response is called on their patient) should be considered, so that nocturnists are not left deciding, in the moment, whether to call the daytime attending. Measures such as this ensure that everyone’s expectations are aligned. In addition, new hospitalists need to be offered support, in the form of training and mentorship.
CBS malpractice data, which includes the contributing factors underlying what went wrong, illuminates potential targets for programs designed to enhance patient safety. In the recent hospitalist malpractice study, the two contributing factors that were the best predictors of a hospitalist malpractice claim closing with payment to the claimant were clinical judgment errors and communication breakdowns. Identifying measures that are effective in promoting patient safety by refining the clinical judgement of clinicians is a challenge, and there are limited data demonstrating what programs are effective in this area.
Clinical decision support (CDS) systems have shown promise in promoting guideline-concordant care.7 However, the role of CDS in aiding the higher-stakes clinical decisions that may be called into question after an adverse outcome is not well defined. Alerts that a patient may be developing sepsis is one type of CDS that has been extensively studied and has been shown to be of some benefit.8 The importance of clinical judgment to whether payment is made on a malpractice claim can inform risk management strategies. Hospitalists should document the thought process behind their decision making in the chart, especially for important clinical decisions. A note showing that the clinician was thoughtfully weighing the risks and benefits using the data available at the time will help make a case defensible if an adverse outcome occurs.
The effect of communication breakdowns on hospitalist case outcomes highlights the importance of measures to improve and systematize communication among clinicians, particularly at vulnerable junctures – such as handoffs from the day team to the night team, and transitions from one care setting to another. An example of an intervention to improve handoffs with cogent evidence to support it is I-PASS, which is an approach to handoffs between teams in which information about the patient’s illness severity, clinical background, and contingencies is conveyed and synthesized in a structured manner. A study of the effect of implementation of I-PASS among nine pediatric residency programs demonstrated a 30% reduction in preventable adverse events.9
Applying insights from malpractice claims analysis to clinical practice
The systematic review of malpractice cases to determine the contributing factors and other case attributes is an important source of patient safety insights. The process breakdowns described by the contributing factors can inform the design of patient safety initiatives. In addition, malpractice data provides information on which specialties and what types of clinicians are being named together in malpractice claims.
In the hospitalist malpractice study, in addition to general surgery and orthopedic surgery, the other clinical services most commonly subject to claims along with hospitalists were nursing, emergency medicine, and cardiology. Another observation was that physician assistants and nurse practitioners are increasingly being named in hospitalist claims. This information is crucial to guiding who needs to be in the room with hospitalists when efforts are undertaken to enhance patient safety within hospital medicine.
An understandable response to the finding that hospitalist claims rates are not decreasing is for hospitalists to seek ways to lower their risk of being named in a malpractice claim. Of course, avoiding adverse events by providing the safest possible care is paramount. Even when patients do suffer adverse events due to a physician negligence, only rarely, less than 5% of the time, does this result in a malpractice claim.10 Important lessons in risk management can be learned from examining why patients decide to sue when mistakes lead to bad outcomes.
An analysis of plaintiffs’ depositions found that the key reasons that patients decided to file a malpractice claim include a poor relationship with the physician – specifically, a lack of empathy from the physician, feeling deserted by the physician, and feeling devalued by the physician.11 These findings support the use of programs that assist physicians in compassionately disclosing adverse events to patients. Among inpatient physicians, patient satisfaction survey questions about the time the physician spent with the patient and the physician’s concern for the patient are better predictors of the physicians’ risk management performance than is the question about the skill of the physician.12 In the aftermath of an adverse event, focusing on maintaining a strong patient-physician relationship is not only the right the thing to do, the data tell us that it is also a sensible approach to reducing medicolegal risk.
Dr. Schaffer practices as a member of the Hospital Medicine Unit at Brigham and Women’s Hospital, Boston, where he serves as an attending physician on the inpatient general medicine services. An instructor at Harvard Medical School, his academic interests include research using large medical malpractice databases to examine temporal trends in medical malpractice.
References
1. Rothberg MB, et al. The cost of defensive medicine on 3 hospital medicine services. JAMA Intern Med. 2014;174(11):1867-1868. doi:10.1001/jamainternmed.2014.4649.
2. Kachalia A, et al. Overuse of testing in preoperative evaluation and syncope: A survey of hospitalists. Ann Intern Med. 2015;162(2):100-108. doi: 10.7326/M14-0694.
3. Mello MM, et al. National costs of the medical liability system. Health Aff (Millwood). 2010;29(9):1569-1577. doi: 10.1377/hlthaff.2009.0807.
4. Schaffer AC, et al. Rates and characteristics of paid malpractice claims among U.S. physicians by specialty, 1992-2014. JAMA Intern Med. 2017;177(5):710-718. doi:10.1001/jamainternmed.2017.0311.
5. Schaffer AC, et al. Liability impact of the hospitalist model of care. J Hosp Med. 2014;9(12):750-755. doi: 10.1002/jhm.2244.
6. Schaffer AC, et al. Rates and characteristics of medical malpractice claims against hospitalists. J Hosp Med. 2021 Jul;16(7):390-396. doi: 10.12788/jhm.3557.
7. Poon EG. Clinical decision support: a tool of the hospital trade. J Hosp Med. 2015;10(1):60-61. doi: 10.1002/jhm.2295.
8. Makam AN, Nguyen OK, Auerbach AD. Diagnostic accuracy and effectiveness of automated electronic sepsis alert systems: A systematic review. J Hosp Med. 2015;10(6):396-402. doi: 10.1002/jhm.2347.
9. Starmer AJ, et al. Changes in medical errors after implementation of a handoff program. N Engl J Med. 2014;371(19):1803-1812. doi: 10.1056/NEJMsa1405556.
10. Localio AR, et al. Relation between malpractice claims and adverse events due to negligence. Results of the Harvard Medical Practice Study III. N Engl J Med. 1991;325(4):245-251. doi: 10.1056/NEJM199107253250405.
11. Beckman HB, et al. The doctor-patient relationship and malpractice. Lessons from plaintiff depositions. Arch Intern Med. 1994;154(12):1365-1370. doi:10.1001/archinte.1994.00420120093010.
12. Stelfox HT, et al. The relation of patient satisfaction with complaints against physicians and malpractice lawsuits. Am J Med. 2005;118(10):1126-1133. doi: 10.1016/j.amjmed.2005.01.060.
Among the pressures felt by hospitalists are concerns about being subject to a malpractice claim. Anxiety about malpractice influences the way hospitalists practice, giving rise to defensive medicine.
One survey, which asked hospitalists to retrospectively rate which of their orders represented defensive medicine, found that 28% of orders were deemed defensive.1 Defensive medicine can lead to low-value medical care, drive up health care costs, and potentially subject patients to unnecessary testing.2,3
Encouragingly, medical malpractice claims rates have, overall, been downtrending. An analysis of data from the National Practitioner Data Bank, which is a repository of all paid malpractice claims against individual physicians, found that malpractice claims rates decreased by 55.7% from 1992 to 2014 among all specialties, and by 46.1% for internal medicine physicians.4 The data used in this analysis did not separate hospitalists from other internal medicine physicians. An older study of malpractice claims against hospitalists found that hospitalists had significantly lower claims rates than non-hospitalist internal medicine physicians.5
Current malpractice environment for hospitalists
Seeking to shed light on the current malpractice environment faced by hospitalists, a recent study examined claims against hospitalists using the Comparative Benchmarking System (CBS), a national database of malpractice claims containing approximately 30% of all U.S. malpractice claims, which is maintained by CRICO, the malpractice insurer for the Harvard-affiliated medical institutions.6
Claims in the CBS database are examined by trained nurse coders who review the claims, along with the associated medical and legal records, to understand the contributing factors behind the adverse event leading to the claim.
Contrary to the trends for nearly all other physician specialties, the malpractice claims rates of hospitalists were not downtrending, going from 1.77 claims per 100 physician-years from 2009-2013 to 2.08 claims per 100 physician-years from 2014-2018. The overall claims rate for hospitalists was significantly higher than that for internal medicine subspecialists (though roughly the same as the claims rate for non-hospitalist general internal medicine physicians). These sobering findings raise the important question of why hospitalists claims rates are heading in the wrong direction.
One possible answer relates the ever-broadening scope of hospitalist practice. Hospitalists are being asked to care for surgical patients and other patient populations that they may have less familiarity with, increasing the risk of medical errors. Among the other specialties most commonly also named in hospitalist claims, general surgery and orthopedic surgery are in the top five. The extraordinary growth in the field of hospital medicine has meant a need to hire an increasing number of hospitalists, leading to less-experienced physicians entering the field.
Making hospital medicine safer
A more urgent question than what is driving the trends in hospitalist claims rates is what can be done to avoid adverse events and make hospital medicine safer. One potential answer is thoughtful collaboration arrangements with the surgical and other specialties with whom hospitalists may be co-managing patients.
Questions about who responds to what types of clinical issues that might arise and specific domains of responsibility should be defined in advance, so that a lack of role clarity does not negatively impact patient care. Given that hospitalists will be less comfortable addressing more technical surgical issues, expectations about surgeons’ availability should be established. Nocturnists may be tasked with overnight cross-coverage of patients on services, such as oncology and cardiology, that subspecialty physicians have responsibility for during the day. Agreeing upon triggers for when the nocturnist should contact the daytime subspecialty attending (for example, if a rapid response is called on their patient) should be considered, so that nocturnists are not left deciding, in the moment, whether to call the daytime attending. Measures such as this ensure that everyone’s expectations are aligned. In addition, new hospitalists need to be offered support, in the form of training and mentorship.
CBS malpractice data, which includes the contributing factors underlying what went wrong, illuminates potential targets for programs designed to enhance patient safety. In the recent hospitalist malpractice study, the two contributing factors that were the best predictors of a hospitalist malpractice claim closing with payment to the claimant were clinical judgment errors and communication breakdowns. Identifying measures that are effective in promoting patient safety by refining the clinical judgement of clinicians is a challenge, and there are limited data demonstrating what programs are effective in this area.
Clinical decision support (CDS) systems have shown promise in promoting guideline-concordant care.7 However, the role of CDS in aiding the higher-stakes clinical decisions that may be called into question after an adverse outcome is not well defined. Alerts that a patient may be developing sepsis is one type of CDS that has been extensively studied and has been shown to be of some benefit.8 The importance of clinical judgment to whether payment is made on a malpractice claim can inform risk management strategies. Hospitalists should document the thought process behind their decision making in the chart, especially for important clinical decisions. A note showing that the clinician was thoughtfully weighing the risks and benefits using the data available at the time will help make a case defensible if an adverse outcome occurs.
The effect of communication breakdowns on hospitalist case outcomes highlights the importance of measures to improve and systematize communication among clinicians, particularly at vulnerable junctures – such as handoffs from the day team to the night team, and transitions from one care setting to another. An example of an intervention to improve handoffs with cogent evidence to support it is I-PASS, which is an approach to handoffs between teams in which information about the patient’s illness severity, clinical background, and contingencies is conveyed and synthesized in a structured manner. A study of the effect of implementation of I-PASS among nine pediatric residency programs demonstrated a 30% reduction in preventable adverse events.9
Applying insights from malpractice claims analysis to clinical practice
The systematic review of malpractice cases to determine the contributing factors and other case attributes is an important source of patient safety insights. The process breakdowns described by the contributing factors can inform the design of patient safety initiatives. In addition, malpractice data provides information on which specialties and what types of clinicians are being named together in malpractice claims.
In the hospitalist malpractice study, in addition to general surgery and orthopedic surgery, the other clinical services most commonly subject to claims along with hospitalists were nursing, emergency medicine, and cardiology. Another observation was that physician assistants and nurse practitioners are increasingly being named in hospitalist claims. This information is crucial to guiding who needs to be in the room with hospitalists when efforts are undertaken to enhance patient safety within hospital medicine.
An understandable response to the finding that hospitalist claims rates are not decreasing is for hospitalists to seek ways to lower their risk of being named in a malpractice claim. Of course, avoiding adverse events by providing the safest possible care is paramount. Even when patients do suffer adverse events due to a physician negligence, only rarely, less than 5% of the time, does this result in a malpractice claim.10 Important lessons in risk management can be learned from examining why patients decide to sue when mistakes lead to bad outcomes.
An analysis of plaintiffs’ depositions found that the key reasons that patients decided to file a malpractice claim include a poor relationship with the physician – specifically, a lack of empathy from the physician, feeling deserted by the physician, and feeling devalued by the physician.11 These findings support the use of programs that assist physicians in compassionately disclosing adverse events to patients. Among inpatient physicians, patient satisfaction survey questions about the time the physician spent with the patient and the physician’s concern for the patient are better predictors of the physicians’ risk management performance than is the question about the skill of the physician.12 In the aftermath of an adverse event, focusing on maintaining a strong patient-physician relationship is not only the right the thing to do, the data tell us that it is also a sensible approach to reducing medicolegal risk.
Dr. Schaffer practices as a member of the Hospital Medicine Unit at Brigham and Women’s Hospital, Boston, where he serves as an attending physician on the inpatient general medicine services. An instructor at Harvard Medical School, his academic interests include research using large medical malpractice databases to examine temporal trends in medical malpractice.
References
1. Rothberg MB, et al. The cost of defensive medicine on 3 hospital medicine services. JAMA Intern Med. 2014;174(11):1867-1868. doi:10.1001/jamainternmed.2014.4649.
2. Kachalia A, et al. Overuse of testing in preoperative evaluation and syncope: A survey of hospitalists. Ann Intern Med. 2015;162(2):100-108. doi: 10.7326/M14-0694.
3. Mello MM, et al. National costs of the medical liability system. Health Aff (Millwood). 2010;29(9):1569-1577. doi: 10.1377/hlthaff.2009.0807.
4. Schaffer AC, et al. Rates and characteristics of paid malpractice claims among U.S. physicians by specialty, 1992-2014. JAMA Intern Med. 2017;177(5):710-718. doi:10.1001/jamainternmed.2017.0311.
5. Schaffer AC, et al. Liability impact of the hospitalist model of care. J Hosp Med. 2014;9(12):750-755. doi: 10.1002/jhm.2244.
6. Schaffer AC, et al. Rates and characteristics of medical malpractice claims against hospitalists. J Hosp Med. 2021 Jul;16(7):390-396. doi: 10.12788/jhm.3557.
7. Poon EG. Clinical decision support: a tool of the hospital trade. J Hosp Med. 2015;10(1):60-61. doi: 10.1002/jhm.2295.
8. Makam AN, Nguyen OK, Auerbach AD. Diagnostic accuracy and effectiveness of automated electronic sepsis alert systems: A systematic review. J Hosp Med. 2015;10(6):396-402. doi: 10.1002/jhm.2347.
9. Starmer AJ, et al. Changes in medical errors after implementation of a handoff program. N Engl J Med. 2014;371(19):1803-1812. doi: 10.1056/NEJMsa1405556.
10. Localio AR, et al. Relation between malpractice claims and adverse events due to negligence. Results of the Harvard Medical Practice Study III. N Engl J Med. 1991;325(4):245-251. doi: 10.1056/NEJM199107253250405.
11. Beckman HB, et al. The doctor-patient relationship and malpractice. Lessons from plaintiff depositions. Arch Intern Med. 1994;154(12):1365-1370. doi:10.1001/archinte.1994.00420120093010.
12. Stelfox HT, et al. The relation of patient satisfaction with complaints against physicians and malpractice lawsuits. Am J Med. 2005;118(10):1126-1133. doi: 10.1016/j.amjmed.2005.01.060.
Medical malpractice and the hospitalist: Reasons for optimism
Fear of malpractice litigation weighs on many physicians, including hospitalists. Specific concerns that physicians have about facing a malpractice claim include stigmatization, loss of confidence in one’s own clinical skills, and a possible personal financial toll if an award exceeds the limit of one’s malpractice insurance.
Physician worries about malpractice are increasingly being raised during discussions of burnout, with a recent National Academy of Medicine discussion paper listing malpractice concerns as a possible factor that could contribute to physician burnout.1
Malpractice fears also influence physician behavior generally, leading to defensive medicine, though the actual costs of defensive medicine are debated. A national survey of physicians by Bishop and colleagues found that 91% felt that physicians order more tests and procedures than patients require in order to try to avoid malpractice claims.3 A survey of 1,020 hospitalists asked what testing they would undertake when provided clinical vignettes involving preoperative evaluation and syncope.4 Overuse of testing was common among hospitalists, and most hospitalists who overused testing specified that a desire to reassure either themselves or the patient or patient’s family was the reason for ordering the unnecessary testing.
The extent to which this overuse was driven by liability fears specifically is not clear. Overuse of testing was less common among physicians associated with Veterans Affairs Hospitals, who generally are not subject to personal medical malpractice liability. But a history of a prior malpractice claim was not associated with significantly greater overuse in the survey.
Hospitalists’ concerns about medical liability notwithstanding, data on the absolute malpractice risk of hospitalists and current trends in medical liability are both encouraging. An important source of our understanding about the national medical malpractice landscape is CRICO Strategies National Comparative Benchmarking System (CBS), which includes the malpractice experience from multiple insurers and represents 400 hospitals and 165,000 physicians. A December 2014 analysis of cases involving hospitalists from the CBS database showed that the malpractice claims rate for hospitalists was lower than those for other comparable groups of physicians.5 Hospitalists (in internal medicine) had a claims rate of 0.52 claims per 100 physician coverage years, which was significantly lower than the claims rate for nonhospitalist internal medicine physicians (with a rate of 1.91 claims per 100 physician-coverage years) and for emergency medicine physicians (with a rate of 3.50 claims per 100 physician-coverage years).
A remarkable national trend in medical malpractice, based on an analysis of data supplied by the National Practitioner Data Bank, is that the overall rate of paid claims is decreasing. From 1992 to 2014, the overall rate of paid claims dropped 55.7%.7 To varying degrees, the drop in paid claims has occurred across all specialties, with internal medicine in particular dropping 46.1%. The reason for this decrease in paid claims is not clear. Improvements in patient safety are one possible explanation, with tort reforms also possibly contributing to this trend. An additional potential factor, which will likely become more important as it becomes more widespread, is the advent of communication and resolution programs (also known as disclosure, apology, and offer programs).
In communication and resolution programs, the response to a malpractice claim is to investigate the circumstances surrounding the adverse event underlying the claim to determine if it was the result of medical error. When the investigation finds no medical error, then the claim is defended. However, in cases in which there was a medical error leading to patient harm, then the error is disclosed to the patient and family, and an offer of compensation is made.
One of the most prominent communication and resolution programs exists at the University of Michigan, and published experience from this program shows that, after implementation of the program, significant drops were seen in the number of malpractice lawsuits, the time it took to resolve malpractice claims, the amount paid in patient compensation on malpractice claims, and the costs involved with litigating malpractice claims.8 One of the goals of communication and resolution programs is to utilize the information from the investigations of whether medical errors occurred to find areas where patient safety systems can be improved, thereby using the medical malpractice system to promote patient safety. Although the University of Michigan’s experience with its communication and resolution program is very encouraging, it remains to be seen how widely such programs will be adopted. Medical malpractice is primarily governed at the state level, and the liability laws of some states are more conducive than others to the implementation of these programs.
Hospitalist concerns about medical malpractice are likely to persist, as being named in a malpractice lawsuit is stressful, regardless of the outcome of the case. Contributing to the stress of facing a malpractice claim, cases typically take 3-5 years to be resolved. However, the risk for hospitalists of facing a medical malpractice claim is relatively low. Moreover, given national trends, hospitalists’ liability risk would be expected to remain low or decrease moving forward.
Dr. Schaffer is an attending physician in the Hospital Medicine Unit at Brigham and Women’s Hospital, an instructor at Harvard Medical School, and a senior clinical analytics specialist at CRICO/Risk Management Foundation of the Harvard Medical Institutions, all in Boston. Dr. Kachalia is an attending physician in the Hospital Medicine Unit at Brigham and Women’s Hospital, an associate professor at Harvard Medical School, and the chief quality officer at Brigham and Women’s Hospital.
References
1. Dyrbye LN et al. Burnout among health care professionals: A call to explore and address this underrecognized threat to safe, high-quality care. National Academy of Medicine Perspectives. 2017 Jul 5.
2. Helland E et al. Bargaining in the shadow of the website: Disclosure’s impact on medical malpractice litigation. American Law and Economics Review. 2010;12(2):423-61.
3. Bishop TF et al. Physicians’ views on defensive medicine: A national survey. Arch Intern Med. Jun 28 2010;170(12):1081-3.
4. Kachalia A et al. Overuse of testing in preoperative evaluation and syncope: A survey of hospitalists. Ann Intern Med. 2015 Jan 20;162(2):100-8.
5. Schaffer AC et al. Liability impact of the hospitalist model of care. J Hosp Med. Dec 2014;9(12):750-5.
6. CRICO Strategies. Medication-related malpractice risks: 2016 CBS Benchmarking Report. Boston. The Risk Management Foundation of Harvard Medical Institutions; 2016. Available at: www.rmf.harvard.edu/cbsreport (accessed Sept. 14, 2017).
7. Schaffer AC et al. Rates and characteristics of paid malpractice claims among US physicians by specialty, 1992-2014. JAMA Intern Med. May 2017;177(5):710-8.
8. Kachalia A et al. Liability claims and costs before and after implementation of a medical error disclosure program. Ann Intern Med. Aug 17 2010;153(4):213-21.
Fear of malpractice litigation weighs on many physicians, including hospitalists. Specific concerns that physicians have about facing a malpractice claim include stigmatization, loss of confidence in one’s own clinical skills, and a possible personal financial toll if an award exceeds the limit of one’s malpractice insurance.
Physician worries about malpractice are increasingly being raised during discussions of burnout, with a recent National Academy of Medicine discussion paper listing malpractice concerns as a possible factor that could contribute to physician burnout.1
Malpractice fears also influence physician behavior generally, leading to defensive medicine, though the actual costs of defensive medicine are debated. A national survey of physicians by Bishop and colleagues found that 91% felt that physicians order more tests and procedures than patients require in order to try to avoid malpractice claims.3 A survey of 1,020 hospitalists asked what testing they would undertake when provided clinical vignettes involving preoperative evaluation and syncope.4 Overuse of testing was common among hospitalists, and most hospitalists who overused testing specified that a desire to reassure either themselves or the patient or patient’s family was the reason for ordering the unnecessary testing.
The extent to which this overuse was driven by liability fears specifically is not clear. Overuse of testing was less common among physicians associated with Veterans Affairs Hospitals, who generally are not subject to personal medical malpractice liability. But a history of a prior malpractice claim was not associated with significantly greater overuse in the survey.
Hospitalists’ concerns about medical liability notwithstanding, data on the absolute malpractice risk of hospitalists and current trends in medical liability are both encouraging. An important source of our understanding about the national medical malpractice landscape is CRICO Strategies National Comparative Benchmarking System (CBS), which includes the malpractice experience from multiple insurers and represents 400 hospitals and 165,000 physicians. A December 2014 analysis of cases involving hospitalists from the CBS database showed that the malpractice claims rate for hospitalists was lower than those for other comparable groups of physicians.5 Hospitalists (in internal medicine) had a claims rate of 0.52 claims per 100 physician coverage years, which was significantly lower than the claims rate for nonhospitalist internal medicine physicians (with a rate of 1.91 claims per 100 physician-coverage years) and for emergency medicine physicians (with a rate of 3.50 claims per 100 physician-coverage years).
A remarkable national trend in medical malpractice, based on an analysis of data supplied by the National Practitioner Data Bank, is that the overall rate of paid claims is decreasing. From 1992 to 2014, the overall rate of paid claims dropped 55.7%.7 To varying degrees, the drop in paid claims has occurred across all specialties, with internal medicine in particular dropping 46.1%. The reason for this decrease in paid claims is not clear. Improvements in patient safety are one possible explanation, with tort reforms also possibly contributing to this trend. An additional potential factor, which will likely become more important as it becomes more widespread, is the advent of communication and resolution programs (also known as disclosure, apology, and offer programs).
In communication and resolution programs, the response to a malpractice claim is to investigate the circumstances surrounding the adverse event underlying the claim to determine if it was the result of medical error. When the investigation finds no medical error, then the claim is defended. However, in cases in which there was a medical error leading to patient harm, then the error is disclosed to the patient and family, and an offer of compensation is made.
One of the most prominent communication and resolution programs exists at the University of Michigan, and published experience from this program shows that, after implementation of the program, significant drops were seen in the number of malpractice lawsuits, the time it took to resolve malpractice claims, the amount paid in patient compensation on malpractice claims, and the costs involved with litigating malpractice claims.8 One of the goals of communication and resolution programs is to utilize the information from the investigations of whether medical errors occurred to find areas where patient safety systems can be improved, thereby using the medical malpractice system to promote patient safety. Although the University of Michigan’s experience with its communication and resolution program is very encouraging, it remains to be seen how widely such programs will be adopted. Medical malpractice is primarily governed at the state level, and the liability laws of some states are more conducive than others to the implementation of these programs.
Hospitalist concerns about medical malpractice are likely to persist, as being named in a malpractice lawsuit is stressful, regardless of the outcome of the case. Contributing to the stress of facing a malpractice claim, cases typically take 3-5 years to be resolved. However, the risk for hospitalists of facing a medical malpractice claim is relatively low. Moreover, given national trends, hospitalists’ liability risk would be expected to remain low or decrease moving forward.
Dr. Schaffer is an attending physician in the Hospital Medicine Unit at Brigham and Women’s Hospital, an instructor at Harvard Medical School, and a senior clinical analytics specialist at CRICO/Risk Management Foundation of the Harvard Medical Institutions, all in Boston. Dr. Kachalia is an attending physician in the Hospital Medicine Unit at Brigham and Women’s Hospital, an associate professor at Harvard Medical School, and the chief quality officer at Brigham and Women’s Hospital.
References
1. Dyrbye LN et al. Burnout among health care professionals: A call to explore and address this underrecognized threat to safe, high-quality care. National Academy of Medicine Perspectives. 2017 Jul 5.
2. Helland E et al. Bargaining in the shadow of the website: Disclosure’s impact on medical malpractice litigation. American Law and Economics Review. 2010;12(2):423-61.
3. Bishop TF et al. Physicians’ views on defensive medicine: A national survey. Arch Intern Med. Jun 28 2010;170(12):1081-3.
4. Kachalia A et al. Overuse of testing in preoperative evaluation and syncope: A survey of hospitalists. Ann Intern Med. 2015 Jan 20;162(2):100-8.
5. Schaffer AC et al. Liability impact of the hospitalist model of care. J Hosp Med. Dec 2014;9(12):750-5.
6. CRICO Strategies. Medication-related malpractice risks: 2016 CBS Benchmarking Report. Boston. The Risk Management Foundation of Harvard Medical Institutions; 2016. Available at: www.rmf.harvard.edu/cbsreport (accessed Sept. 14, 2017).
7. Schaffer AC et al. Rates and characteristics of paid malpractice claims among US physicians by specialty, 1992-2014. JAMA Intern Med. May 2017;177(5):710-8.
8. Kachalia A et al. Liability claims and costs before and after implementation of a medical error disclosure program. Ann Intern Med. Aug 17 2010;153(4):213-21.
Fear of malpractice litigation weighs on many physicians, including hospitalists. Specific concerns that physicians have about facing a malpractice claim include stigmatization, loss of confidence in one’s own clinical skills, and a possible personal financial toll if an award exceeds the limit of one’s malpractice insurance.
Physician worries about malpractice are increasingly being raised during discussions of burnout, with a recent National Academy of Medicine discussion paper listing malpractice concerns as a possible factor that could contribute to physician burnout.1
Malpractice fears also influence physician behavior generally, leading to defensive medicine, though the actual costs of defensive medicine are debated. A national survey of physicians by Bishop and colleagues found that 91% felt that physicians order more tests and procedures than patients require in order to try to avoid malpractice claims.3 A survey of 1,020 hospitalists asked what testing they would undertake when provided clinical vignettes involving preoperative evaluation and syncope.4 Overuse of testing was common among hospitalists, and most hospitalists who overused testing specified that a desire to reassure either themselves or the patient or patient’s family was the reason for ordering the unnecessary testing.
The extent to which this overuse was driven by liability fears specifically is not clear. Overuse of testing was less common among physicians associated with Veterans Affairs Hospitals, who generally are not subject to personal medical malpractice liability. But a history of a prior malpractice claim was not associated with significantly greater overuse in the survey.
Hospitalists’ concerns about medical liability notwithstanding, data on the absolute malpractice risk of hospitalists and current trends in medical liability are both encouraging. An important source of our understanding about the national medical malpractice landscape is CRICO Strategies National Comparative Benchmarking System (CBS), which includes the malpractice experience from multiple insurers and represents 400 hospitals and 165,000 physicians. A December 2014 analysis of cases involving hospitalists from the CBS database showed that the malpractice claims rate for hospitalists was lower than those for other comparable groups of physicians.5 Hospitalists (in internal medicine) had a claims rate of 0.52 claims per 100 physician coverage years, which was significantly lower than the claims rate for nonhospitalist internal medicine physicians (with a rate of 1.91 claims per 100 physician-coverage years) and for emergency medicine physicians (with a rate of 3.50 claims per 100 physician-coverage years).
A remarkable national trend in medical malpractice, based on an analysis of data supplied by the National Practitioner Data Bank, is that the overall rate of paid claims is decreasing. From 1992 to 2014, the overall rate of paid claims dropped 55.7%.7 To varying degrees, the drop in paid claims has occurred across all specialties, with internal medicine in particular dropping 46.1%. The reason for this decrease in paid claims is not clear. Improvements in patient safety are one possible explanation, with tort reforms also possibly contributing to this trend. An additional potential factor, which will likely become more important as it becomes more widespread, is the advent of communication and resolution programs (also known as disclosure, apology, and offer programs).
In communication and resolution programs, the response to a malpractice claim is to investigate the circumstances surrounding the adverse event underlying the claim to determine if it was the result of medical error. When the investigation finds no medical error, then the claim is defended. However, in cases in which there was a medical error leading to patient harm, then the error is disclosed to the patient and family, and an offer of compensation is made.
One of the most prominent communication and resolution programs exists at the University of Michigan, and published experience from this program shows that, after implementation of the program, significant drops were seen in the number of malpractice lawsuits, the time it took to resolve malpractice claims, the amount paid in patient compensation on malpractice claims, and the costs involved with litigating malpractice claims.8 One of the goals of communication and resolution programs is to utilize the information from the investigations of whether medical errors occurred to find areas where patient safety systems can be improved, thereby using the medical malpractice system to promote patient safety. Although the University of Michigan’s experience with its communication and resolution program is very encouraging, it remains to be seen how widely such programs will be adopted. Medical malpractice is primarily governed at the state level, and the liability laws of some states are more conducive than others to the implementation of these programs.
Hospitalist concerns about medical malpractice are likely to persist, as being named in a malpractice lawsuit is stressful, regardless of the outcome of the case. Contributing to the stress of facing a malpractice claim, cases typically take 3-5 years to be resolved. However, the risk for hospitalists of facing a medical malpractice claim is relatively low. Moreover, given national trends, hospitalists’ liability risk would be expected to remain low or decrease moving forward.
Dr. Schaffer is an attending physician in the Hospital Medicine Unit at Brigham and Women’s Hospital, an instructor at Harvard Medical School, and a senior clinical analytics specialist at CRICO/Risk Management Foundation of the Harvard Medical Institutions, all in Boston. Dr. Kachalia is an attending physician in the Hospital Medicine Unit at Brigham and Women’s Hospital, an associate professor at Harvard Medical School, and the chief quality officer at Brigham and Women’s Hospital.
References
1. Dyrbye LN et al. Burnout among health care professionals: A call to explore and address this underrecognized threat to safe, high-quality care. National Academy of Medicine Perspectives. 2017 Jul 5.
2. Helland E et al. Bargaining in the shadow of the website: Disclosure’s impact on medical malpractice litigation. American Law and Economics Review. 2010;12(2):423-61.
3. Bishop TF et al. Physicians’ views on defensive medicine: A national survey. Arch Intern Med. Jun 28 2010;170(12):1081-3.
4. Kachalia A et al. Overuse of testing in preoperative evaluation and syncope: A survey of hospitalists. Ann Intern Med. 2015 Jan 20;162(2):100-8.
5. Schaffer AC et al. Liability impact of the hospitalist model of care. J Hosp Med. Dec 2014;9(12):750-5.
6. CRICO Strategies. Medication-related malpractice risks: 2016 CBS Benchmarking Report. Boston. The Risk Management Foundation of Harvard Medical Institutions; 2016. Available at: www.rmf.harvard.edu/cbsreport (accessed Sept. 14, 2017).
7. Schaffer AC et al. Rates and characteristics of paid malpractice claims among US physicians by specialty, 1992-2014. JAMA Intern Med. May 2017;177(5):710-8.
8. Kachalia A et al. Liability claims and costs before and after implementation of a medical error disclosure program. Ann Intern Med. Aug 17 2010;153(4):213-21.