Benchmarking study shines light on surgical malpractice causes

Patient expectations often at the root of problems

A benchmarking report on some of the major causes of surgical malpractice cases has provided information that hospital quality managers and risk managers can use to improve performance and reduce adverse events.

For example, among its findings is the fact that risks are inherent in all stages of the surgical process — from issues related to pre-operative decision making, to technical issues in the operating room, to those that occur post-operatively, such as recovery management and communication. It also highlights that errors leading surgery patients to allege malpractice primarily are due to narrow clinical judgment, poor technical performance, or miscommunication among team members.

But it does more than point out causes of malpractice cases, says Larry Smith, senior vice president of risk management for Columbia, MD-based MedStar Health. "This report represents what I hope is an indication of a new way for all of us in health care, including those who work in claims programs, to look at the causation of these events differently than we have in the past so we can do something to stop these preventable adverse events from happening," Smith declares.

The report, entitled "Annual Benchmarking Report: Malpractice Risks in Surgery," was produced by RMF (Risk Management Foundation) Strategies, a division of CRICO/RMF, the medical malpractice insurer for the Harvard medical institutions. Based on data from 3,300 surgery-related medical malpractice cases that closed from 2003 to 2008, it is designed to provide hospitals nationwide with insight into areas of medical malpractice across the surgical spectrum so that hospital leadership, physicians, and surgical staff can identify areas of vulnerability and implement programs to improve patient safety.

Bob Hanscom, JD, is vice president of loss prevention and patient safety at RMF and the driving force behind RMF Strategies' Comparative Benchmarking System (CBS), which published the report. "Malpractice cases are a very small tip of the iceberg, but below the surface are a lot of vulnerabilities. The tip is a 'divining rod' guide to where the risks are; you can actively use the analysis of these cases and help drive change," he says.

The causation 'revolution'

Smith is excited about the approach the report has taken. "I may be appropriately accused of exaggeration, but I think this report is an indication of a revolution in the way we are using our claims data," he says. Smith notes that in April 2010 he made a presentation at a meeting of the Risk and Insurance Management Society (RIMS) about the "causation factors" that are now embedded in the claims management software his system uses.

"When cases are closed or mature enough for us to know enough about them, we are able to take the information and code causation into three categories — individual factors, or things individuals are responsible for; systems problems, where most quality folks have been focused for the last 10 years; and patient problems, such as noncompliance, where patients do something to cause their own outcome," he explains. "What I like about this approach is that we have gone from the '90s, looking at blaming individuals, to the 2000s and blaming the system; finally in the next decade we will focus on the fact that causation is complex, that it involves individual and systems failing and patients and their failings, and unless we look at it in this complex fashion, we lose the opportunity to put in place interventions to reduce, and hopefully eliminate, many of these errors."

The report, he continues, takes a similar approach. "We took our data, and ran the same analysis they ran for this report, and I was thrilled to see that when you take the elements there, their results our virtually identical to ours." So, he explains, when he looked in the report at clinical judgment, technical knowledge and skill, and communications — three of the key factors leading to claims that fall under the "individual" findings — the report data and his system data were virtually identical. "For example, clinical judgment appeared in about 60% of the claims for the group they studied," he notes. "When I look at our data for six years, it was anywhere from 54% to 79% of the cases, but the average came out to 60%."

This way of looking at data, says Smith, "can help us look benevolently at innovation." So, for example, looking at individual failures is important, "because if you look at surgical preventable injuries, our individual clinicians are day in and day out asked to make critical decision about what route to take, what process to use, tests to order, how to treat certain conditions, and in 60% of malpractice cases that judgment is in question; it is a target for malpractice claims," notes Smith. 'So the question is, what can I do about that? I can do simulation training to get better and better and better at knowing what to do when faced with an emergency. I can do didactic teaching and e-training to help them understand the clinical judgment issues faced in practice."

What the report also did, he continues, was allow him to bring to his board this information, and say to them he believes he is on the right track. "These data have more validity and say to me the focus we're talking about on how to prevent errors is headed in the right direction," says Smith, "and I can now garner more resources."

Other key findings

Among the report's many findings is the fact that risks are inherent in all stages of the surgical process — from issues related to pre-operative decision making, to technical issues in the operating room, to those that occur post-operatively such as recovery management and communication. It also highlights that errors leading surgery patients to allege malpractice are primarily due to narrow clinical judgment, poor technical performance, or miscommunication among team members. It "really relates to this whole 'allegation' category of technical error. Of course [provider error] is alleged in a lot of malpractice cases, but when you look at the facts, you're not always sure it occurred. What you do see are outcomes the patient or family was simply not expecting," says Hanscom.

Sometimes, he says, patients could not distinguish between a normal risk of complication or an error. "It may have been covered in informed consent, but done in such way that most patients or families do not understand how much risk there really is," says Hanscom. "Communication really needs to happen with patients ahead of time, so they are much more aligned with the reality of what they are undergoing; some procedures are much more risky than they understand them to be."

The second key point raised in the study, says Hanscom, is that "there are errors that occur, which we believe are quite preventable." While some can be traced back to training or skills, he says, "There are a number of distractions in the operating environment that pull skilled surgeons away from concentrating on the procedure." This raises "very important opportunities for training or thoughts about the environmental factors surgeons operate under," he says.

In addition, notes Hanscom, surgeons could be greatly helped by a much more team-based environment. "Many surgeons go into a room that has just turned over, with a team of nurses or techs whose names they do not know, and they try to do very high-level procedures," he explains. "To me, I hope this study gives rise to having a much more structured way of getting surgeons and the people who help them aligned with each other; the data scream out for interventions along these lines."

Suggestions are offered

The report is more than a gathering of statistics. There are miniature case studies of how member facilities have addressed areas of weakness they uncovered, as well as suggestions of strategies that could help many health care facilities, including

  • the use of a surgical safety checklist;
  • developing a unified curriculum and standards for simulation-based team training;
  • creating interactive workshops using malpractice cases to help surgeons better communicate realistic expectations to patients and families.

The checklist, says Hanscom, was developed by Harvard's Atul Gawande and the World Health Organization (WHO) about two years ago. "It's not rocket science; a lot of industries do this to help reduce human error," he notes. "It makes sure that all of the i's are dotted and t's are crossed in terms of the inter-operative and post-op phases of care. It does not take a huge amount of time for a surgeon to be sure he or she adhered to protocols and did not leave anything undone."

Hanscom acknowledges that there are other checklists out there, although he advocates the WHO checklist as the one that ought to be used. "People have come up with shortened versions, and it's kind of frustrating and a little amusing," he says, "But we hope that wherever this lands, you really do have a safety net so patient care does not somehow fall through the cracks. That's where we see the biggest problems arise — jumping over a step or failing to do something."

Hanscom says the Harvard system already has used unified curricula and standards for simulation-based team training. "A few years ago we used it with obstetrics," he says. "We ultimately created simulation-based team training for labor and delivery."

The staff members, he says, were very enthusiastic and embraced the new approach. "Essentially it teaches all providers how to communicate in such a way that they do not lose information; every voice is heard, and everyone is accountable for follow-through on what they need to be doing," he explains. "It's a much more highly coordinated environment."

The process, he continues, involves role-playing, where a number of scenarios are acted out. "Its experiential learning versus didactic learning, and the information seems to have much more ability to be embedded with the learner — and they learn much faster," Hanscom shares. "We are now trying to replicate that curriculum in the OR."

He concedes that the OR environment is "very challenging, because unlike labor and delivery, it is very hierarchical. Still, every voice needs to be heard, and that's tough culturally," Hanscom says. "But it involves open communication and a team-based environment, and if a 'lowly' tech sees something worrisome, they can speak up and be heard."

Creating interactive workshops using malpractice cases "to help surgeons better communicate realistic expectations to patients and families" is part of this whole process, Hanscom explains. "We bring together all the players with malpractice case studies in front of them, and use them to open discussion and analysis."

Vital role for quality managers

When participants in the benchmarking group receive their reports, Hanscom says, the quality manager becomes a key player in the improvement process. "In my mind, they are the people who should be the agents of change," he says. "In a lot of ways, this is the sort of report that is written for them."

The reports help further understanding on the part of the frontline staff, "but you've got to have those people who are in the position of saying, 'We've got to initiate new way of doing things.' Very often, it's the safety and quality leaders; those are the people who are in position to really use this sort of data as an evidence-based platform to help propel change forward."

As RMF disseminates the reports, says Hanscom, "We make sure they get to those very people. Hopefully, they will think of malpractice activity as a way for them to focus, since they have a very broad agenda. Maybe it will give them a bit more focus on where they need to prioritize; that's the hope here."

Smith shares that hope. "We have been giving lip service to quality and malpractice claims people getting together and working on the same page, but we do not do that," he observes. "I hope now that we are finding in claims data ways we can translate that data into a taxonomy that relates to what quality people are all about. Maybe what we can do is use the report for analysis, come up with some 'gems,' and then turn them over to quality people so they can drive the changes that need to be done."

[The surgical report is available through at For more information, contact Bob Hanscom. Phone: (617) 679-1519; E-mail:]