ED managers must dig beneath the surface to uncover all potential sources of liability

Examine near misses, as well as mistakes, that ended up in court

(Editor's note: In this special issue, we highlight an all-important topic: avoiding litigation. We cover issues such as department-level risk assessments, preventive actions to reduce risk; key areas of risk; a three-step strategy for risk management; changes in your department's culture to reduce risk; the use of patient satisfaction as a best practice; best practices and tools for physician, nurses, and other practitioners; admission of mistakes; and the critical role of patient advocates. We know you'll find a host of important strategies to hone your risk management program.)

Lawsuits are not only unpleasant, but expensive — not just for the hospital itself, but often for the physicians and nurses who were involved in the cases that led to litigation. Experts say there is much ED managers can do to minimize lawsuits. They add, however, that improvement efforts will be less than optimally effective unless you've performed a proper risk assessment of your department. And that, they emphasize, must go far beyond the most obvious areas such as common complaints and sources of previous suits.

"We were doing a study for a hospital in Pennsylvania on 'cases against' in pediatrics suits," recalls Mike Williams, MPA/HAS, president of The Abaris Group, a Walnut Creek, CA-based health care consulting firm specializing in emergency services. "What we found was if we just used numbers — throughput, labs, radiology 'miss' rates, basic parameters — they were all fine, so we realized something must not be right." When the firm probed more deeply for activity related to issues such as aggressive use of midlevel practitioners for acute care, or documentation, "those didn't show up in the numbers," he says.

How do you assess areas such as these? "You have to go down to the charts and see what happened," says Williams. If you aren't using a process that's granular and drills down to the patient care event and documents critical elements, "you'll miss a lot of high-risk opportunities," he says.

Assess ED risks on a global scale, "not simply from a medical malpractice environment," says Martin E. Ogle, MD, regional director for the southern division of CEP/MedAmerica, an Emeryville, CA-based provider of ED management and staffing solutions. "If there are other risks that are operational, or employee risks or an unsafe environment for patients or providers, they will probably have repercussions downstream on malpractice," he says. For example, if your ED is inefficient, it is likely you'll have medical issues arising because patients are exposed to the ED environment longer than they need to be, Ogle says. "We see that pretty clearly in our EDs around the country," he adds.

However, Tom Syzek, MD, FACEP, director of risk management for Dayton, OH-based Premier Health Care Services, takes a slightly different approach. His group looked at all the previous suits that had been brought over a 20-year period. "I characterized them according to chief complaint, and then found the frequency and severity of the chief complaint," he says. With this approach, he can determine how often and what percentage of total money was paid out related to a single condition. Thus, he was able to identify some chief "culprits" such as chest pain, abdominal pain, adult headache, and pediatric fever.

Armed with such information, the ED manager can start education programs and develop process improvement tools and programs to address those risks, Syzek says. "If you develop these programs, insurers will take this into account, and sometimes you can use that to negotiate lower med-mal rates, so there are additional economic benefits," he notes. Syzek acknowledges that such programs can cost a lot of time and money, "But if you just prevent one average suit a year, it will pay for your entire risk management program," he says.

Gerald B. Hickson, MD, professor of pediatrics, associate dean of clinical affairs and director of risk prevention at Vanderbilt University School of Medicine in Nashville, TN, says, "The single most important thing you can do to assess [risk] is a comprehensive surveillance of how well you are collectively listening to families and to other members of the team." This assessment can be done through standardized satisfaction measures, he says, "but we believe in doing that by phone, not on paper." The reason for that approach is because you not only get standard responses to standardized questions, "but you also have the opportunity to talk to families in more real-time," he says. "If things are not going well, it gives us second chance."

A second element of "assessment and mitigation" used at Vanderbilt is an active patient advocate ombudsman service. Hickson notes that research he and his team have conducted found that malpractice claims are not randomly distributed against ED docs; nor is complaint generation. "We use those complaints to identify those emergency medicine physicians who have more than their fair share of risk," he explains. "We send peer messengers to sit down in confidence and share with them that they stand out."

Individuals are trained throughout the institution to perform these functions, Hickson says. The physician gets a confidential letter asking for a time to sit in their office. The message delivered, basically, is: "You stand out, but this is a confidential process designed to give you an opportunity to act to reduce your personal risk." They are also told that if they do not respond, "We will get you a little help," says Hickson. On rare occasions, they are taken to their superior to "work out a special plan."

A third approach Vanderbilt uses is to "Take your near-misses and adverse events, and have a very vigorous M/M [morbidity and mortality] improvement process so the organization is committed to learning," adds Hickson. "We use a standardized approach throughout the institution built on the Ichikowa fishbone [quality improvement] process where you tease apart the factors that set the stage for these events. This, in turn, is linked to an 'accountability matrix' so an owner is identified for the issues, and their commitment is obtained to fix the problem."

Daniel Sullivan, MD, JD, FACEP, president and CEO of The Sullivan Group, an Oakbrook Terrace, IL-based provider of patient safety, risk management, and performance improvement solutions, has developed a scientific approach to risk assessment. Being a JD as well as an MD, Sullivan said he "had really developed a passion for trying to drill down and understand what was at the root of medical error."

Ultimately, Sullivan shares, his risk management company put together a risk, safety, and quality audit and performs baseline audits for EDs across the country. "It is very, very clear where medical errors come from," he asserts. "For example, abdominal pain in patients who are over 50, or chest pain — the biggest losses in emergency medicine."

Resource

ED Legal Letter, also published by AHC Media, provides a monthly update on legal pitfalls that could jeopardize your emergency services. If you are not currently subscribing to this newsletter, contact customer service number to begin your trial subscription: (800) 688-2421 or customerservice@ahcmedia.com.