True risk management: physicians' liability risk and the practice of patient-centered medicine.

• Author: Das, Anand

[The New York Times] With your heavy patient load, do you get to know any of them personally?

[Dr. Benjamin Carson] Oh, absolutely. That's important. Getting emotionally involved, I think, is a good thing. Of course, when there's a bad outcome, it's difficult.

Just a few weeks ago, I cried right in the operating room because the patient was brain dead. I had grown so close to that family that I had a picture of the little boy in my pocket. And yet, we had done everything we could possibly do. The family knew that. The parents were in no way bitter. There were hugs all around. It really is difficult.

By the same token, I've never spent a day in court. (4)

1. INTRODUCTION II. BACKGROUND A. Physician Perception of Litigation Risk B. Liability Risk and Technical Error C. Responses to the Increased Risk of Liability D. The Practice of Defensive Medicine III. DISCUSSION A. Consequences of Defensive Medicine and

   Flawed Risk Management Strategies B. The Importance of Communication

   3. Disclosure of Mistakes D. A Patient-Centered Approach IV. CONCLUSION

      I. INTRODUCTION

   The late Dr. Avedis Donabedian, a leading evaluator of health care quality, captured the essence of quality care by describing the "technical" and "interpersonal" skills upon which physicians must rely. (5) "The quality of technical care," he stated, "consists in the application of medical science and technology in a manner that maximizes its benefits to health without correspondingly increasing its risks. The degree of quality is, therefore, the extent to which the care provided is expected to achieve the most favorable balance of risks and benefits." (6)

   "Interpersonal competence," on the other hand, requires that "the management of the interpersonal relationship must meet socially defined values and norms that govern the interaction of individuals in general and in particular situations. These norms are reinforced in part by the ethical dicta of health professions, and by the expectations and aspirations of individual patients." (7)

   While most physicians understand that a serious deficiency in technical care increases their risk of liability, too often their risk management behavior indicates that they do not fully appreciate the impact that poor interpersonal skills have on patients' motivations to sue. Ironically, many of these physicians have taken risk management steps that have increased, rather than reduced, their exposure to lawsuits.

   In this paper, we argue that a strong legal and factual claim does not invariably explain patients' decisions to sue. Dissatisfaction with the physician's interpersonal care as well as with the clinical outcome is often a factor. Conversely, patients with a potentially meritorious claim may forego legal action due to the strength of the relationship with the physician.

   In view of patients' motivations to sue, we advocate a more broadly conceived approach to reducing liability risk, one that honors the ethical aspirations of medicine instead of the secretive counsels of misguided risk management. To be sure, strategies to reduce technical error are necessary, but they are not sufficient. Errors causing harm will inevitably occur. The first step in the liability path is the patient's decision to transform the fact of harm into a legal claim. Whether this crucial first step is taken, as research has shown, can be strongly influenced by the physician's interpersonal competence: the more open and honest physicians are towards their patients, the less likely these patients will pursue litigation. (8) Thus, we argue that physicians should seek to establish strong relationships with their patients and avoid questionable "defensive medicine" practices that can harm these relationships.

2. BACKGROUND

   1. Physician Perception of Litigation Risk

      Physicians correctly perceive that they are at greater risk of facing legal action today than in the past. Malpractice lawsuits have dramatically increased over the last three decades. For example, 80% of all claims between 1935 and 1975 occurred after 1970, (9) and the number of annual claims grew from 2.5 to 16 per one hundred doctors between 1976 and 1984, respectively. (10) Although the frequency of claims in recent years has trended downward, (11) the data show that over time more suits have been brought. In addition, the task of plaintiffs' lawyers has been made somewhat easier by scrutiny of lists such as the National Practitioner Data Bank (12) and documents compiled by states detailing prior malpractice claims histories.

      Physicians' fears of liability also have been fueled by rising malpractice insurance premiums, which are perceived by many physicians as the consequence of an increasing volume of malpractice litigation and high jury awards. Although this assessment tends to downplay other factors, it surely is not entirely off the mark. As the General Accounting Office recently reported, "Multiple factors have combined to increase medical malpractice premium rates over the past several years, but losses on medical malpractice claims appear to be the primary driver of increased premium rates in the long term." (13) To an unprecedented degree, physicians fear that a lawsuit might make their future practice economically unsustainable.

   2. Liability Risk and Technical Error

      Concurrent with the rise of malpractice action in the last forty years, more patients have fallen victim to iatrogenic (that is, treatment-caused) injuries. In a 1964 study, E. M. Schimmel found that 20% of patients sustained at least one iatrogenic injury after being admitted into a university hospital medical service. (14) In 1981, Steel and colleagues found that iatrogenic injury had risen to 36% of patients studied in those same settings. (15)

      Empirical evidence suggests that the increased incidence of iatrogenic injury is correlated with higher rates of medical error. For example, in a 1991 study, Bedell and colleagues found that 64% of cardiac arrests in one teaching hospital were avoidable. (16) In that same year, Harvard researchers analyzed 30,000 discharges in 51 New York State acute care, non-psychiatric hospitals from 1984 and found that "'adverse events" took place in 3.7% of these hospitalizations. (17) These results were consistent with a later study of 15,000 discharges in Colorado and Utah, which found that adverse events occurred in 2.9% of hospitalizations. (18) Compiling these and other findings, the Institute of Medicine estimated hospital error to be responsible for between 44,000 and 98,000 deaths per year. (19) The IOM Report stated that medication errors by themselves were responsible for 7,391 deaths in 1993, up from 2,876 deaths in 1983. (20)

      The IOM Report also found that a significant percentage of these errors resulted from negligence. So, too, did the earlier studies. Of the adverse events documented in the Harvard Medical Practice Study, 27.6% were due to negligence. (21) Similarly, an average of 30% of the adverse events found in Colorado and Utah were caused by negligent behavior. (22)

      Although high rates of negligence ate not sufficient to explain why more patients are considering litigation, a breach in the standard of care is an essential component of any medical malpractice cause of action. Therefore, physicians have properly focused on minimizing technical errors, especially those caused by negligence, as a way to reduce their risk of liability.

   3. Responses to the Increased Risk of Liability

      Awareness of legal risk reinforces what in any event would be physicians' focus on avoiding technical error. It is well documented that a "culture of infallibility" (23) exists in many medical settings. This culture may be rooted in the way physicians are socialized to professional norms during their training in medical school and residency programs. (24) Physicians do not want to be subjected to the shame and embarrassment before colleagues that often accompany admitting to medical errors. (25) The authors of one analysis summarized their findings by stating that, "In a profession that values perfection, error is virtually forbidden." (26) Consequently, it is unsurprising that "some of the words that clinicians used to describe their responses to their own mistakes [included] 'devastated,' 'heartsick, ... demoralized, worthless.'" (27)

      Intolerance of mistake in the medical profession may be unrealistic, as some errors are inevitable in any human endeavor. We...