Strategies for Prevention & Management of Adverse Outcomes

Why Good Doctors Get Sued:

• they forget or fail to recognize how patients perceive quality

• they do not employ personal risk management strategies in daily practice

• they get caught in system failures

How Patients Perceive Quality:

• function as well or better after interaction

• low cost

• don’t want to be injured in process of Rx

• want to understand about their condition and treatment options

• humane, kind, respectful interaction with provider, nursing, and office staff

• short phone wait, prompt appointments, short office visits, and prompt follow-up

• short waits for test completion and prompt communication of results

• referral to specialist if not responding

• availability after hours for emergencies

• satisfaction with health plan and relationship of plan with provider

Traditional Risk Management Loss Prevention and Reduction:

• Establishing provider-patient relationship

• Once begun, prevention of injury to patient

• If yes, prevention of negligence claim

• If filed, prevention of malpractice suit

• If yes, winning the lawsuit

• Extends to issues of quality of care, prevention of injury, and helping injured deal with it most effectively

How Providers Perceive Quality:

• being able to make the diagnosis

• using a state-of-the-art approach to treatment

• having a low complication rate

• relying on top-quality consultants

• having the patient get well

Why Do Patients Seek Legal Advice?

• bad result or perception of bad result

• unhappy or dissatisfied patient

• social system that supports lawsuits

Communication Strategies:

• ability to listen effectively and allow patients to express their concerns

• ability to provide information in a way that ensures patient understanding

• conveyance of a feeling of respect for the patient

• feeling that the provider is willingly accessible and available

Functions of Effective Communication:

• data collection skills to understand the nature of the patient’s problem

• relationship skills to build and maintain maximum provider-patient rapport

• educational skills to ensure patient understanding, informed consent, and maximum adherence

Rapport-building skills: acknowledge and address emotions:

• reflection: acknowledge an observed response

• legitimation: validate patient’s emotions

• support: explicit statements of support

• partnership: statements confirming collegial approach to problem solving

• respect: acknowledge positive coping behaviors or coping mechanisms of patient

Data Gathering Skills:

• appropriate and effective questioning: "open-to-closed" cone of questioning

• facilitation: verbal ("tell me more . . ." "go on") and non-verbal (nodding) techniques

• surveying: e.g., what else? priorities?

• summarization: correct misunderstandings and provide additional information; confirms hearing and understanding to patient; builds rapport

Educational Skills:

• establish baseline of concerns and current knowledge

• correct any misinformation

• short and simple informative statements

• opportunity to ask questions

Goal: "accomplish complex education in situations of high emotional intensity!"

Informed Consent:

• what a reasonable provider would say about a procedure = what any reasonable patient would want to know about a procedure = what the individual patient would want to know to make a reasonable decision about the procedure

• state defines process in detail including documentation required in record


• we as physicians are not certain of all outcomes

• in most instances, we are able to deal with these outcomes effectively, even if unexpected

• patients need to know this so they are not surprised and dismayed if an unexpected event occurs

• does not protect a provider from allegation of negligence

Provider Management:

• understand the dynamics and stress associated with behavior:

— disorganized thinking

— guilt and defensiveness

— fear of lawsuit and tendency to blame

— increase vulnerability to error

• maintain impeccable records; don’t change them; dictate promptly; document care personally

System Failures, Human Error, and Adverse Outcomes:

• adverse outcomes occur in context of excellent medical care

• adverse event: complication or negligence?

• system which establishes how care is given may contribute to adverse outcomes

• prevention of error through elimination of system failure

Taking Action: Premises:

• error rates in medicine are relatively high.

• blaming and search for culprits won’t work.

• achieving error reduction requires system changes.

• job for organization leaders; instill value.

• improvements will require measurement: to gain knowledge (not only carrots and sticks).

Pharmacy Techniques:

• familiarity and follow state and federal laws

• multiple drugs or drugs with narrow therapeutic index (e.g. dispense one at a time)

• contact the prescriber if any questions

• periodic written requests/file of phone orders

• don’t make substitutions without permission

• discuss therapy with patients; written instructions

• document actions taken and concerns

Medical Director Checklist:

• job description: informed oversight; uniform handling of decisions; legal/regulatory comply

• documentation: info and logic used for decision

• review: benefits, UR procedures, med records

• speak up: interview providers

• consult experts: standard of care applied

• time: be aware of required turnaround times; communicate delays, reason, and expected close

• appeal right: no inform = violate good faith

Follow-up Documentation: Defensible Office Systems:

• date test/referral ordered

• test/referral ordered

• reason for test/referral

• consequences explained for not undergoing test/referral

• date test/referral received

• date results read and initialed by MD

• additional tests, follow-up appointments, other recommendations

• date and manner patient notified of results and any further recommendation

• whether patient followed through on further testing/recommendation

Patient Abandonment: Minimizing accusations:

• check with health plan re: regulations

• notify patient in writing

• state reason for discharge from practice (e.g. non-medical compliance)

• indicate availability to provide care for period of time until new provider obtained

• send letters certified with return receipt

Attorney-Client Privilege:

• oldest protection of confidential communication

• encourages clients to be completely truthful

• promotes communication and eliminates fear of disclosure to third parties

• fosters voluntary compliance with the law by promoting freedom of consultation with attorney

• state and federal law generally the same

• establish: communication between privileged persons in confidence for legal assistance

Quality Assurance Privilege:

• available in some states, defined under law

• QA process: developed by health care entity and follows written standards and criteria

• includes activities and investigations related to: quality of care; practice review; training, experience, and conduct of licensed professionals; analysis of use of health services and facilities

• immunity for QA participants

• information and record of actions confidential/protected

Peer-Review Privilege:

• available in some states

• encourages self-critical analysis

• physicians organize to improve care

• review nature, quality, and necessity of care; prevention of complications and death

• need not identify provider or patient by name

• proceedings, records, and materials confidential and not subject to discovery

Source: Ross M. Miller, MD, MPH, Medical Director, Quality Management and Risk Management for major MCO, Los Angeles. (Information was included in a presentation on "Why Good Doctors Get Sued" at the National Managed Health Care Congress held in Atlanta in April.)