What's the use?

Nothing you do will hold down the cost of medical malpractice. It feels that way sometimes, doesn't it?

Unfortunately, for many risk managers, that's not too far off the mark. What they're doing isn't working.

We can point to other industries, greedy lawyers, insurance companies trying to make up for losses in the stock market. But there's trouble within medical practices too.

A study published in the Archives of Internal Medicine showed that many of the actions risk managers take actually backfire(1). They create more risk and drive up costs.

The problem is not the risk managers. It's myths about medical malpractice that dominate the healthcare industry. Three myths in particular are common and costly.

Myth #1: Medical negligence causes medical malpractice claims.

What could be more logical?

It's a conclusion based on common sense and backed by data from two large studies carried out by Harvard researchers over the past 20 years.

One percent of hospital visits end in medical negligence. And the injured one percent are 20 times more likely to claim medical malpractice than are the other 99 percent.

So patients injured through error must drive malpractice claims, right? Wrong.

A recent report from researchers at the Harvard School of Public Health(2) revealed that four of five patients who file medical malpractice claims have not been injured through negligence. And the great majority of patients who have suffered negligent injury don't sue.

Myth #2: Medical malpractice claims are random acts

If medical error doesn't drive malpractice claims, what does? Maybe claims are entirely unpredictable.

They're not though. Injured patients are 20 times more likely to sue than are patients who aren't injured. And there are correlations that are far stronger that we'll discuss in a minute.

Myth #3: Medical malpractice claims are filed by opportunistic patients

Undoubtedly some are. I've heard from risk managers, especially in economically depressed areas, who feel the pinch from patients who literally fall in the parking lot. Personal anecdotes like these though can be misleading.

According to Beckman and colleagues in the Archives of Internal Medicine(3), the reality is that most patients sue because of emotional errors. They feel deserted, feel their views were devaluated, feel that information was delivered poorly, and feel their physician failed to understand their perspective.

And this is why the strategies pursued by many risk managers backfire. They've been led to believe that opportunistic patients take advantage of errors and negligence as an opening to sue. So they follow what seems to be the logical course of action.

They keep the physician from the patient and withhold information. Sometimes they even mislead patients. All of which fuels the patients' feeling of having been wronged.

So what can you do?

Equip your staff, particularly your physicians and risk managers, to treat patients with empathy and respect. Even if they threaten to sue. Especially if they threaten to sue.

The Harvard School of Public Health will tell you that if your aim is to prevent liability loss, you may have more success communicating well and showing patients you value them than you will by reducing actual cases of malpractice

Of course, that's easier said than done. There are two reasons.

First, it's stressful being face-to-face with someone who's upset. Most people intend to be open. But they're afraid it would make matters worse.

Second, though most medical staff are compassionate, they don't know how to express that empathy in a way an upset patient can see. Instead, they try to fix the problem or show the patient the right way of thinking. Which does make matters worse.

My advice? Your best course of action is to get out ahead of the problem. Train your staff to identify patient feelings and needs, and negotiate solutions. So patients feel no need to make claims in the first place.

If that seems like a lot to bite off. Here are some suggestions to get you started.

Train selected staff. Risk management, security services, and social work, work often with upset patients. Focus on staff in these areas to leverage a limited training budget or to model the skills for other employees.

Train selected departments. Some departments, obstetrics and neurology for example, attract medical malpractice suits.

In the case of medical malpractice, the best defense is not a good offense. It's good collaboration. Your goal is to uncover your patients' needs and negotiate solutions that meet their needs as well as the needs of your hospital. And do it in a way your patients can see. _______________________________________________________
1. Reducing legal risk by practicing patient-centered medicine, Heidi P Forster, Jack Schwartz, Evan DeRenzo. Archives of Internal Medicine. Chicago: Jun 10, 2002. Vol. 162, Iss. 11; pg. 1217, 3 pgs

2. Medical malpractice as an epidemiological problem, Social Science & Medicine, Volume 59, Issue 1, July 2004, Pages 39-46, Michelle M. Mello and David Hemenway

3. Beckman HB, Markakis KM, Suchman AL, Frankel RM. The doctor-patient relationship and malpractice: lessons from plaintiff depositions. Arch Intern Med. 1994;154:1365-1370