Managing Malpractice Mystery

Now comes the mystery.

Henry Ward Beecher (1803-1887), American Abolitionist, The Last Word, 1887

April 20, 2012 – The true costs of medical malpractice remain  a mystery. 

Malpractice  costs are  an exercise in defining the undefinable,  estimating the unestimatable , quantitating the unquantifiable,  psychoanalyzing the unpsychoanalyzable,  and managing the seemingly unmanageable.

But explaining  malpractice costs and how to minimize them  is worth a try.   

In America, medical malpractice is a deep medical and social wound, a product of unrealistic expectations,  faulty  communication,  aggressive technologies,  real patient harms, and a uniquely legalistic environment among nations.

Some critics say  costs of final malpractice settlements are overhyped,  costing less that 2% of America’s $2.5 trillion annual health care tab.   Others maintain costs of defensive medicine  are enormous, running  $50 billion or more.  No one knows for sure.  But this much is clear: doctors routinely practice defensive medicine.   In the last year, 58% of physician leaders say they ordered a test or procedure for defensive reasons (John Commins, " Leaders Weigh in on Defensive Medicine," Health Leaders Media,  April 20, 2012).

Malpractice costs may not be real in the overall scheme of health care spending.  But to patients harmed,  physicians paying ever mounting premiums,  and malpractice attorneys relying upon  the mayhem,  the costs are very real indeed.  Nationwide tort reform is needed, but it is unlikely to occur, given the power of the trial lawyer lobbyists.

Costs of Defending Filed-Malpractice Claims

In the April 17 Health Care Blog, “Malpractice Defense Costs Are Real, “Aaron E. Carroll, MD, MS,  has a go at defining costs of defending malpractice suits that are filed.  

Carroll is author of the blog, The Incidental Economist. He is  associate professor of Pediatrics,  associate director of Children’s Health Services Research at Indiana University School of Medicine, and director of the Center for Health Policy and Professionalism Research.

Carroll, based on a an article in The Journal of Law, Medicine, and Ethics, analyzing malpractice claims from January 1, 1985 to December 31, 2008 on malpractice claims filed,   says defending malpractice cases costs the system $5 billion.  Even cases dropped, withdrawn, or dismissed costs $25,000 each to defend.   Here is what happens to claims that are filed:  1% plaintiff verdict, 6% defendant verdict,  27% plaintiff settlement, 64% dropped, and 1% arbitration, mediation or pre-arranged contract.

Managing Malpractice Risks

I have had my own go at defining  how to manage the unruly malpractice system.

My try  was a post I wrote in 2007. It  was titled “‘Clinical innovations - Innovative Strategies to Reduce Malpractice Risk.” An article summarizing my post   appeared in the February 7, 2007, edition of Physicians’ Weekly, a newsletter that appeared  in poster form in staff lounges and other physician gathering places in 1600 U.S. hospitals. The newsletter was read by 250,000 physicians each week.

The article began:

“Focusing efforts on patient safety and education and identifying valuable resources can help practices reduce their risk of future medical malpractice claims and suits.”

“Medical malpractice claims are of great concern and are the basis by which many physicians make decisions on their choice of specialty right through to deciding on when and how to retire. According to Richard L. Reece, MD, there are many steps that physicians can take to reduce their risk of being involved in a malpractice claim “.

Steps to Reducing Malpractice Risks

"By performing the following steps, physicians and practices from all backgrounds and specialties can reduce their risk of incurring malpractice suits."

"1. Carefully document each patient encounter and do it electronically when possible.

2. Provide patients with a record of the details of their visit before they leave the office.

3. Communicate thoroughly via conversations and paper documentation.

4. Ensure that patients completely understand what they being told and have them repeat what was said.

5. Spot litigious patients.  These individuals

·        Are more likely to have psychological problems.

·        May present with information from the Internet.

·        Often have a history of suing doctors.

·        Are likely to have complex problems.

·        Have a history of seeing multiple doctors.

6.Have patients sign informed consent forms and waivers to disclose that they will not sue for frivolous reasons.

7.  Inform patients about their condition using patient education materials."

“While there are many things that can be done to lower the risk of malpractice suits,” he says, “the most important consist of identifying patients who are prone to such claims, practicing safe medicine, educating patients, incorporating risk-management systems into hospitals, and utilizing alternative-risk organizations.”

Tweet:  Costs  of defending malpractice suits in the U.S. are  $5 billion, costs of defensive medicine are unknown,  costs can be managed.