COMMENTARY

Hospitalists and Malpractice: A Look at Sobering Trends

Adam C. Schaffer, MD, MPH

August 05, 2021

Among the pressures felt by hospitalists are concerns about being subject to a malpractice claim. Anxiety about malpractice influences the way hospitalists practice, giving rise to defensive medicine.

Dr Adam Schaffer

One survey, which asked hospitalists to retrospectively rate which of their orders represented defensive medicine, found that 28% of orders were deemed defensive.1 Defensive medicine can lead to low-value medical care, drive up health care costs, and potentially subject patients to unnecessary testing.2,3

Encouragingly, medical malpractice claims rates have, overall, been downtrending. An analysis of data from the National Practitioner Data Bank, which is a repository of all paid malpractice claims against individual physicians, found that malpractice claims rates decreased by 55.7% from 1992 to 2014 among all specialties, and by 46.1% for internal medicine physicians.4 The data used in this analysis did not separate hospitalists from other internal medicine physicians. An older study of malpractice claims against hospitalists found that hospitalists had significantly lower claims rates than non-hospitalist internal medicine physicians.5

Current Malpractice Environment for Hospitalists

Seeking to shed light on the current malpractice environment faced by hospitalists, a recent study examined claims against hospitalists using the Comparative Benchmarking System (CBS), a national database of malpractice claims containing approximately 30% of all U.S. malpractice claims, which is maintained by CRICO, the malpractice insurer for the Harvard-affiliated medical institutions.6

Claims in the CBS database are examined by trained nurse coders who review the claims, along with the associated medical and legal records, to understand the contributing factors behind the adverse event leading to the claim.

Contrary to the trends for nearly all other physician specialties, the malpractice claims rates of hospitalists were not downtrending, going from 1.77 claims per 100 physician-years from 2009-2013 to 2.08 claims per 100 physician-years from 2014-2018. The overall claims rate for hospitalists was significantly higher than that for internal medicine subspecialists (though roughly the same as the claims rate for non-hospitalist general internal medicine physicians). These sobering findings raise the important question of why hospitalists claims rates are heading in the wrong direction.

One possible answer relates the ever-broadening scope of hospitalist practice. Hospitalists are being asked to care for surgical patients and other patient populations that they may have less familiarity with, increasing the risk of medical errors. Among the other specialties most commonly also named in hospitalist claims, general surgery and orthopedic surgery are in the top five. The extraordinary growth in the field of hospital medicine has meant a need to hire an increasing number of hospitalists, leading to less-experienced physicians entering the field.

Making Hospital Medicine Safer

A more urgent question than what is driving the trends in hospitalist claims rates is what can be done to avoid adverse events and make hospital medicine safer. One potential answer is thoughtful collaboration arrangements with the surgical and other specialties with whom hospitalists may be co-managing patients.

Questions about who responds to what types of clinical issues that might arise and specific domains of responsibility should be defined in advance, so that a lack of role clarity does not negatively impact patient care. Given that hospitalists will be less comfortable addressing more technical surgical issues, expectations about surgeons’ availability should be established. Nocturnists may be tasked with overnight cross-coverage of patients on services, such as oncology and cardiology, that subspecialty physicians have responsibility for during the day. Agreeing upon triggers for when the nocturnist should contact the daytime subspecialty attending (for example, if a rapid response is called on their patient) should be considered, so that nocturnists are not left deciding, in the moment, whether to call the daytime attending. Measures such as this ensure that everyone’s expectations are aligned. In addition, new hospitalists need to be offered support, in the form of training and mentorship.

CBS malpractice data, which includes the contributing factors underlying what went wrong, illuminates potential targets for programs designed to enhance patient safety. In the recent hospitalist malpractice study, the two contributing factors that were the best predictors of a hospitalist malpractice claim closing with payment to the claimant were clinical judgment errors and communication breakdowns. Identifying measures that are effective in promoting patient safety by refining the clinical judgement of clinicians is a challenge, and there are limited data demonstrating what programs are effective in this area.

Clinical decision support (CDS) systems have shown promise in promoting guideline-concordant care.7 However, the role of CDS in aiding the higher-stakes clinical decisions that may be called into question after an adverse outcome is not well defined. Alerts that a patient may be developing sepsis is one type of CDS that has been extensively studied and has been shown to be of some benefit.8 The importance of clinical judgment to whether payment is made on a malpractice claim can inform risk management strategies. Hospitalists should document the thought process behind their decision making in the chart, especially for important clinical decisions. A note showing that the clinician was thoughtfully weighing the risks and benefits using the data available at the time will help make a case defensible if an adverse outcome occurs.

The effect of communication breakdowns on hospitalist case outcomes highlights the importance of measures to improve and systematize communication among clinicians, particularly at vulnerable junctures – such as handoffs from the day team to the night team, and transitions from one care setting to another. An example of an intervention to improve handoffs with cogent evidence to support it is I-PASS, which is an approach to handoffs between teams in which information about the patient’s illness severity, clinical background, and contingencies is conveyed and synthesized in a structured manner. A study of the effect of implementation of I-PASS among nine pediatric residency programs demonstrated a 30% reduction in preventable adverse events.9

Applying Insights From Malpractice Claims Analysis to Clinical Practice

The systematic review of malpractice cases to determine the contributing factors and other case attributes is an important source of patient safety insights. The process breakdowns described by the contributing factors can inform the design of patient safety initiatives. In addition, malpractice data provides information on which specialties and what types of clinicians are being named together in malpractice claims.

In the hospitalist malpractice study, in addition to general surgery and orthopedic surgery, the other clinical services most commonly subject to claims along with hospitalists were nursing, emergency medicine, and cardiology. Another observation was that physician assistants and nurse practitioners are increasingly being named in hospitalist claims. This information is crucial to guiding who needs to be in the room with hospitalists when efforts are undertaken to enhance patient safety within hospital medicine.

An understandable response to the finding that hospitalist claims rates are not decreasing is for hospitalists to seek ways to lower their risk of being named in a malpractice claim. Of course, avoiding adverse events by providing the safest possible care is paramount. Even when patients do suffer adverse events due to a physician negligence, only rarely, less than 5% of the time, does this result in a malpractice claim.10 Important lessons in risk management can be learned from examining why patients decide to sue when mistakes lead to bad outcomes.

An analysis of plaintiffs’ depositions found that the key reasons that patients decided to file a malpractice claim include a poor relationship with the physician – specifically, a lack of empathy from the physician, feeling deserted by the physician, and feeling devalued by the physician.11 These findings support the use of programs that assist physicians in compassionately disclosing adverse events to patients. Among inpatient physicians, patient satisfaction survey questions about the time the physician spent with the patient and the physician’s concern for the patient are better predictors of the physicians’ risk management performance than is the question about the skill of the physician.12 In the aftermath of an adverse event, focusing on maintaining a strong patient-physician relationship is not only the right the thing to do, the data tell us that it is also a sensible approach to reducing medicolegal risk.

Adam C. Schaffer, MD, MPH, practices as a member of the Hospital Medicine Unit at Brigham and Women’s Hospital, Boston, where he serves as an attending physician on the inpatient general medicine services. An instructor at Harvard Medical School, his academic interests include research using large medical malpractice databases to examine temporal trends in medical malpractice.

References

1. Rothberg MB, et al. The cost of defensive medicine on 3 hospital medicine services. JAMA Intern Med. 2014;174(11):1867-1868. doi:10.1001/jamainternmed.2014.4649.

2. Kachalia A, et al. Overuse of testing in preoperative evaluation and syncope: A survey of hospitalists. Ann Intern Med. 2015;162(2):100-108. doi: 10.7326/M14-0694.

3. Mello MM, et al. National costs of the medical liability system. Health Aff (Millwood). 2010;29(9):1569-1577. doi: 10.1377/hlthaff.2009.0807.

4. Schaffer AC, et al. Rates and characteristics of paid malpractice claims among U.S. physicians by specialty, 1992-2014. JAMA Intern Med. 2017;177(5):710-718. doi:10.1001/jamainternmed.2017.0311.

5. Schaffer AC, et al. Liability impact of the hospitalist model of care. J Hosp Med. 2014;9(12):750-755. doi: 10.1002/jhm.2244.

6. Schaffer AC, et al. Rates and characteristics of medical malpractice claims against hospitalists. J Hosp Med. 2021 Jul;16(7):390-396. doi: 10.12788/jhm.3557.

7. Poon EG. Clinical decision support: a tool of the hospital trade. J Hosp Med. 2015;10(1):60-61. doi: 10.1002/jhm.2295.

8. Makam AN, Nguyen OK, Auerbach AD. Diagnostic accuracy and effectiveness of automated electronic sepsis alert systems: A systematic review. J Hosp Med. 2015;10(6):396-402. doi: 10.1002/jhm.2347.

9. Starmer AJ, et al. Changes in medical errors after implementation of a handoff program. N Engl J Med. 2014;371(19):1803-1812. doi: 10.1056/NEJMsa1405556.

10. Localio AR, et al. Relation between malpractice claims and adverse events due to negligence. Results of the Harvard Medical Practice Study III. N Engl J Med. 1991;325(4):245-251. doi: 10.1056/NEJM199107253250405.

11. Beckman HB, et al. The doctor-patient relationship and malpractice. Lessons from plaintiff depositions. Arch Intern Med. 1994;154(12):1365-1370. doi:10.1001/archinte.1994.00420120093010.

12. Stelfox HT, et al. The relation of patient satisfaction with complaints against physicians and malpractice lawsuits. Am J Med. 2005;118(10):1126-1133. doi: 10.1016/j.amjmed.2005.01.060.

This article originally appeared on The Hospitalist, an official publication of the Society of Hospital Medicine.

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