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2/21/2017

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© 2017 MMIC. All rights reserved

Malpractice Concerns in the New Healthcare World

Robert S. Thompson RT, JD, MBA, LLM, RPLU, CPCU

Director of Education - MMIC

Copyright 2014 MMIC • All rights reserved

Different pic


Medical malpractice

• Duty • Breach of duty (standard of care) • Injury caused by breach • Damages • Malpractice plus (x-factor)

– Service lapses – Non-clinical issues – Plaintiff attorney’s dream


Today’s environment

• Claims frequency stable • Claims severity

on the rise • 1 in 4 jury verdicts

exceeds $1.2 million • The “x-factor”

will continue the severity trend


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Patient expectations and abilities

Societal view of the system

Societal view of financial amounts

Patient as a purchaser/buyer

HIPAA

The IOM Report of 1999

Shift in focus from clinical issues to service lapses

Reasons for today’s malpractice environment



Severity: Top 10 Average Paid

1. Neurosurgery $268,780

2. OB/GYN surgery $242,020

3. Pediatrics $236,140

4. Anesthesia $186,582

5. Internal medicine $175,506


Severity: Top 10 Average Paid

6. Ophthalmology $157,492

7. General surgery $154,818

8. Radiology $150,766

9. Orthopedics $142,289

10. Family practice $137,787

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Scope of Analysis

• Cases are unique patient events and include information from third party defendants, when available.

• Each case may include multiple, open and/or closed claims and/or suits.

• An objective perspective The responsible service and factors leading to the allegations, injuries, or initiation of the claim or suit are determined for every event or case.

• True root cause Therefore, learnings may or may not directly reflect direct actions of the named defendant, but instead attempt to describe the true root cause of each patient event.

2,867 MMIC PL CASES

ASSERTED 2010-2015

$378.1 TOTAL INCURRED COSTS

IN MILLIONS


Top Responsible Services

0%

5%

10%

15%

20%

Occurrence vs. Cost

% Cases

% Cost

MMIC N=2,867 | CBS Peers N = 28,482 (excl. AMC) | MPL Open/Closed Cases | Asserted 2010-2015



0%

5%

10%

15%

20%

Occurrence vs. Cost

% Cases

% Cost


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0%

5%

10%

15%

20%

% c

ase

s

Comparative Benchmark

MMIC

National Peers

0%

5%

10%

15%

20%

Occurrence vs. Cost

% Cases

% Cost


p < .001

p < .01

p < .05

p ≥ .05 (not sigificant)

green better than benchmark

red worse than benchmark

blank N<5, cannot be tested

Analysis Key


Top Major Allegations


0%

5%

10%

15%

20%

25%

30%

Occurrence vs. Cost

% Cases

% Cost




0%

5%

10%

15%

20%

25%

30%

Occurrence vs. Cost

% Cases

% Cost Surgical-related

allegations

#1 in occurrence

N=788

#1 in total incurred costs

$105.7 million

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0%

5%

10%

15%

20%

25%

30%

Occurrence vs. Cost

% Cases

% Cost Diagnosis-related

allegations

#3 in occurrence

N=484

#2 in total incurred costs

$84.7 million



0%

5%

10%

15%

20%

25%

30%

Occurrence with Benchmark

MMIC

National Peers


0%

5%

10%

15%

20%

25%

30%

Occurrence vs. Cost

% Cases

% Cost

p < .001

p < .01

p < .05





Analysis Key


Allegations by Claimant Type

MMIC N=2,867 | Asserted 2010-2015 | OP N=1445 | ED N=239 | IP N=1159

0%

10%

20%

30%

40%

50%

Emergency Allegations

N=239

0%

10%

20%

30%

40%

50%

Inpatient Allegations

N=1,159

0%

10%

20%

30%

40%

50%

Outpatient Allegations

N=1,445

Outpatient

50%

ED

[PERCENTAGE]

Inpatient

41%

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Inpatient vs. Outpatient/ED

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

2010 2011 2012 2013 2014 2015

% C

ase

s

Assert Year

MMIC National Peers

Outpatient

+ ED

Inpatient


Outpatient

50%

Emergency

8%

Inpatient

41%

Other

1%

Claimant Type


Outpatient Cases, N=1,445

MMIC Outpatient Claimants N=1,445 | Asserted 2010-2015

0%

10%

20%

30%

40%

50%

Allegations

Medium

60%

High

22%

Low

18%

Injury Severity

NAIC Clinical Severity Scale

HIGH death, perm grave, perm major/sig

MED perm/temp minor, temp major

LOW temp insignificant, emotional/legal only

Responsible Services % OP

Gen Medicine 17%

Surgical Subspecialties 14%

Medical Subspecialties 13%

Orthopedics 10%

Nursing 8%

Radiology 7%

General Surgery 6%

Anesthesiology 6%

Current Focus:

Diagnostic Error and follow-up

system failures


Outpatient Claims

MMIC N=1,455 | MPL Open/Closed Cases | Asserted 2010-2015

• Failure/delay to order dx test and to respond

to repeated patient concerns/symptoms

• Misinterpretation of diagnostic studies

• Narrow diagnostic focus

Clinical Judgment

• Known risks, poor technique, improperly

utilized equipment, inexperience with

procedure

Technical Skill

• Communication with pt and family (21%)

• Communication among providers (10%) Communication

50%

46%

30%

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Patient communication

In virtually all specialties, communication errors or barriers are the main factors resulting in medical malpractice claims, second only to errors of clinical judgment or technical error (actual malpractice)


Patient communication

The major national risk management and patient safety trade organizations (ASHRM, NPSF, NAHQ, AMA) are focusing educational efforts on communication and culture – the “soft sciences” of health care


Even in high-risk,

procedure-based

specialties,

communication

is a big factor.

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• Substandard judgment 77%

• Miscommunication 36%

• Technical error 26%

• Inadequate

documentation 26%

• Administrative failures 23%

Biggest contributors to OB claims


• Technical skill 67%

• Clinical judgment 62%

• Communication 33%

Biggest contributors to surgical claims


Communication and teamwork issues

are named as a root cause in nearly

of all sentinel events. 70%

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Why do patients sue?

Caregiver attitude

Lack of (or poor)

communication

Financial incentives

Media play

Jousting

Unrealistic expectations

35%

35%

10%

7.5%

7.5%

5%


Where good communication leads

Solid physician-patient and provider-patient communication skills lead to: • More engaged patients • Patients more involved in their plan of care • Willingness to ask questions related

to treatment • Adherence to their care plan • Satisfaction with care provided • Lower costs • Increased trust and loyalty


… all of which lead to

better clinical

outcomes and,

as a result, fewer

medical malpractice

claims.

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Patients are changing

More prepared through research

More medically savvy

More challenging of medical opinions

More “consumer” than patient


Build rapport/set the tone

• Be prepared • Greet the patient • Make eye contact • Shake hands • Introduce yourself (to everyone in the room) • Use the patient’s (parent’s) name • Learn everyone’s role • Smile and be pleasant • Make small talk


Build rapport/set the tone

• Attend to the patient’s comfort • Acknowledge the wait, if any • Convey knowledge of patient history • Sit down (it makes a difference!) • Maintain eye contact • Explain need to enter information in EHR

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nvite: “What can we address today?” isten with QUIET curiosity ummarize and check: “Your chest pain started a week ago and is worse when lying down. Have I got that correct?”

Elicit concerns Ask with “beginner’s mind”

I

L

S


About listening … take a guess

“How long, on average,

does a physician allow

a patient to talk before

interrupting?”

Beckman HB, Frankel RM

Ann Intern Med. 1984 Nov;101


Allow your patients to talk! Beckman HB, Frankel RM-Ann Intern Med. 1984 Nov;101

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FOLLOW-UP SYSTEM FA ILURES

34

Analysis of Diagnosis-related Cases




27%

24%

17%

9% 7%

5% 4%

2%

0%

5%

10%

15%

20%

25%

30%

MMIC Occurrence

% Cases

% Cost #1 Surgical Treatment-related

#2 Medical Treatment-related

#3 Diagnosis-related


0%

5%

10%

15%

20%

25%

30%

Benchmark Comparison

MMIC

CBS Peers



#1 Surgical Treatment-related



p < .001

p < .01

p < .05





Analysis Key

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#1 Surgical Treatment-related





0%

5%

10%

15%

20%

25%

30%

MMIC Occurrence vs. Total Cost

% Cases

% Cost


0%

5%

10%

15%

20%

25%

30%


% Cases

% Cost #1 Surgical Treatment-related






0%

5%

10%

15%

20%

25%

30%


% Cases

% Cost



Diagnosis-related Allegations (N=484)

$84.7million

Other Major Allegations (N=65) with Diagnosis-related Minor Allegations

$17.7million

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© 2017 MMIC. All rights reserved 40

Drilling Down to Diagnosis


Initial

Diagnostic

Assessment

• Problem Noted, Care Sought

• History and Physical Conducted

• Patient Assessed and Symptoms Evaluated

• Differential Diagnosis Established

• Diagnostic Test(s) Ordered

Testing and

Results

Processing

• Tests Performed

• Tests Interpreted

• Test Results Transmitted to/Received by

Ordering Physician

Follow up

and

Coordination

• Physician Follows up with Patient

• Referrals/Consults

• Patient Information Communicated Among

Care Team

• Patient and Providers Establish Follow up Plan

Analyzing the Diagnostic Process

https://www.rmf.harvard.edu/Clinician-

Resources/Article/2014/CBS-

Diagnostic-Process-of-Care-Twelve


Initial

Diagnostic

Assessment

• Problem Noted, Care Sought

• History and Physical Conducted

• Patient Assessed and Symptoms Evaluated

• Differential Diagnosis Established

• Diagnostic Test(s) Ordered

Testing and

Results

Processing

• Tests Performed

• Tests Interpreted

• Test Results Transmitted to/Received by

Ordering Physician

Follow up

and

Coordination

• Physician Follows up with Patient

• Referrals/Consults

• Patient Information Communicated Among

Care Team

• Patient and Providers Establish Follow up Plan

Analyzing the Diagnostic Process

https://www.rmf.harvard.edu/Clinician-

Resources/Article/2014/CBS-

Diagnostic-Process-of-Care-Twelve

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Mining Factors Indicating Follow-up System Failures (FUSF)

Follow up Systems Failures (FUSF)

N=229 PL Cases Asserted 2010-2015

with a Major or Minor Dx-related Allegation

FUSF factors

…

FUSF factors

…

FUSF factors

…

19 Contributing Factors from CRICO Strategies’

Clinical Coding Taxonomy


Scope of FUSF

Other 81% N=2,318

No FUSF 11%

N=320

FUSF 8% N=229

Cases with Dx-related Major or Minor Allegation with Follow up System Failures (FUSF)

Dx-related 19% N=549

Cases with a major or minor diagnosis-related allegation

MMIC N=2,867 PL Open/Closed Cases Asserted 2010-2015


Scope of FUSF

Other 81% N=2,318

No FUSF 11%

N=320

42% of MMIC cases with

a major or minor dx-related allegation

involves an FUSF factor

FUSF 8% N=229





Scope of FUSF within Diagnosis-related Cases

FUSF 42%

N=229

No FUSF 58%

N=320

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Scope of FUSF

Other 81% N=2,318

No FUSF 11%

N=320

42% of MMIC cases with

a major or minor dx-related allegation

involves an FUSF factor

FUSF 8% N=229






FUSF 42%

N=229

No FUSF 58%

N=320

Even if physicians diagnosed accurately 100%

of the time, we’d still have diagnostic error.


Scope of FUSF

Other 81% N=2,318

No FUSF 11%

N=320

FUSF 8% N=229






FUSF 42%

N=229

No FUSF 58%

N=320

The cost of FUSF…

$43.7million

229 MMIC cases over 6 years


Follow-Up Systems Errors

• One of the major focuses of plaintiff attorneys when

pursuing service-lapse type claims • In a study performed by one of the nations largest

malpractice insurance providers assessing risks leading to patient injury in the medical office setting, the single greatest concern was ineffective tracking for diagnostic tests/consults (follow-up systems)

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• Most frequent issue is test results being transmitted to/received by physician/clinic

• Most often seen with lab and radiology reports

• Unrelated to clinical practice-deals with procedure and process (service lapse)

• Patient education/orientation on test results delivery methodology is necessary



• Define then convey your policy on delivery of test results

• No news is “NO NEWS”

• Utilize your patient as a last line of defense

• “If you haven’t heard from us by…..”

• Staff engagement and responsibility is imperative


The Key Steps: Follow-up System Cycle

Test

ORDERED

Patient

RETURNS

for follow-up

Appointment

Follow-Up

APPOINTMENT

scheduled

DOCUMENTATION of

notification and instructions to

patient

Results

REVIEWED

For clinical decision

Results RECEIVED

Test DONE Patient

ASSESSED

Patient NOTIFIED

and given

instructions

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The Key Steps: Follow-Up System Cycle

• The effectiveness of a follow-up system depends on

the integrity of each step • A weakness at any point in the process may end up

in a patient injury and subsequent malpractice claim


Focus Should Be On The Main Components

• Receipt of test results

• Review of test results

• Notification to patient

• Missed appointment cancellation tracking


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Questions?

56


Contact us

Robert.Thompson

@MMICgroup.com

2/21/2017

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© 2017 MMIC. All rights reserved 58

Documents

General instructions - c.ymcdn.com · •Test Results Transmitted to/Received by Ordering Physician Follow up ... •Patient and Providers Establish Follow up Plan © 2017 MMIC. All