The U.S. medical malpractice system deters physician negligence. True or false? A recent study by the American College of Surgeons looked at whether or not stronger malpractice laws prevent surgical complications (Journal of the ACS, December 16, 2016). The widespread assumption has generally been that a strong malpractice environment equates with a better quality of patient care. Not so, says the ACS.
“Measures of malpractice environment did not have significant, consistent associations with post-operative outcomes.” Looking state-by-state, the study found that the strength of tort reform legislation has no apparent effect on improving patient outcomes. Another unexpected (and unexplained) finding: States with the strongest laws in place are associated with a greater incidence of post-op complications—sepsis, pneumonia, acute renal failure, deep vein thrombosis/pulmonary embolism, and gastrointestinal bleeding.
“The malpractice environment doesn’t influence doctors to provide better care,” says Dr. Karl Bilimoria, director of the Surgical Outcomes and Quality Improvement Center at Northwestern University’s Feinberg School of Medicine in Chicago (Reuters Health, January 16, 2017). “Rather, it may lead to defensive medicine practices where more tests and treatments are ordered unnecessarily just to try to minimize malpractice risk.”
Stanford law professor Michelle Mellow agrees: “This study contributes further evidence that liability pressure doesn’t spur doctors to get better results for patients, but neither does adopting reforms to limit liability.”
Even in low-risk specialties, an estimated 75% of doctors will be named in a malpractice suit by age 65. Dr. Richard Roberts, professor of family medicine at the University of Wisconsin in Madison: “There is far more malpractice committed than is recognized, litigated, or compensated. Only 2% of patients injured by error ever pursue a claim. At the same time, payment is made on an estimated one of four claims even when there was no error” (clinical advisor.com).
Practicing defensive medicine or winning the “patient’s choice award” is no guarantee that a doctor will have immunity from being sued. Nor does it mean that nothing can be done to significantly lower the risk of being sued or being in a better position to mount a successful defense.
According to Jim Cunningham, the publisher of Medical Liability Monitor, every practice should have in place a risk management program. Cunningham recommends periodic practice audits, “a meticulous analysis of all potential risks” from patient care to procedures performed. The entire staff—receptionists, nurses, lab personnel, and physicians—must be trained to create an overall environment of patient satisfaction.
“To better safeguard your practice, it’s helpful to know the main reasons clinicians are sued,” says Dr. Roberts: 1) failure to diagnose or a delay in diagnosis, 2) negligent maternity care, 3) negligent fracture or trauma care, and 4) negligent drug treatment. “One of the least favorite tasks of clinicians is record keeping, yet it is one of the most crucial (up to 40% of malpractice suits are lost because of an inadequate or incomplete record).”
Finally, knowing when to ask for help—whenever there’s a diagnostic or treatment uncertainty, a disgruntled or skeptical patient or family, an unexpected outcome—these are all good reasons to call in a consult.