Is managed care exposing your practice to large malpractice claims?
Is managed care exposing your practice to large malpractice claims?
Experts aren't sure, but there is growing evidence that providers are withholding services and risking lawsuits
After declining sharply in the mid 1980s, medical malpractice claims have been increasing again, this time to worrisome highs. By some estimates, the number of claims filed by patients against providers has nearly tripled in less than a decade. The rate has jumped from a low of 6.4 claims per 100 physicians in 1988 to 9.5 per 100 in 1995, according to a recent study from the American Medical Association (AMA) in Chicago, IL and St. Paul (MN) Insurance Companies, a major malpractice underwriter.
In emergency medicine, media accounts have provided the public with ample evidence of the human toll underlying many of these suits. But are these events representative of any real trend?
"As a whole, the number of malpractice suits in emergency medicine isn't very high," says Gregory L. Henry, MD, vice president of risk management with the 600-member Emergency Physicians Medical Group in Ann Arbor, MI. Annually, the number of malpractice claims filed against emergency providers averages about one in every 20,000 emergency department (ED) visits, according to Medical Practice Risk Assessment in Ann Arbor, a risk management firm.
"That isn't a large number, relatively speaking," says Henry, who is also president of Medical Practice Risk. But the rate still exceeds that of Canada and England, where there are significantly fewer malpractice claims by comparison, he acknowledges. "One thing we are sure about is that the average cost per suit is increasing [in the United States]," Henry concludes.
That is certain. In 1996, the average plaintiff in a medical malpractice suit took home $2,292,064, more than twice the average amount in 1994, according to Jury Verdict Research, a Palm Beach Gardens, FL company that tracks litigation results. The largest number of malpractice awards in 1996 averaged $568,000, nearly 57% greater than the largest number of awards in 1994. The average median malpractice award in 1996 averaged $568,000, nearly 50% greater than in 1994. (For other comparisons, see the charts on p. 84.)
Not all of these cases were based on claims that originated with an emergency physician. But, there is a growing suspicion that emergency providers share in a growing number of malpractice events. There is also widespread belief that the recent spiraling of malpractice suits somehow coincides with the growing presence of managed care among all medical providers.
Connection uncertain between malpractice and managed care
The connection is highly speculative. The link between managed care and the probability of a malpractice occurrence has never been measured, says Henry. Studies about medical malpractice, while plentiful, have avoided drawing conclusions suggesting a correlation between the ratcheting down of health care costs by managed health plans and the rise in malpractice events.
Nevertheless, physicians have long worried that the rigid payment policies of cost-conscious payers have become so pervasive in medicine that their influence has undermined what once was considered the sovereignty of medical decision-making. "Making those cost-related decisions may more often subject doctors to greater liability risk," according to a recent article in Medical Liability Monitor, a Glenview, IL publication that tracks malpractice trends for the insurance industry.
And, in emergency medicine, where the propensity for unpredictable outcomes ranks higher than in most other clinical departments, the probability of medical mistakes and unexpected outcomes would be higher than in other specialties. There are reasons cited by some experts for these differences: 1) the nature of unscheduled ED visits; 2) the broad diversity of often serious presenting complaints and the highly charged, emotional demands of patients on the system, which are unique to EDs; and 3) the high rate of uncompensated care found in emergency medicine, which often suggests an uninsured and, therefore, unhealthy patient population.
Yet, Henry and others are unconvinced. "Show me one piece of literature that directly attributes malpractice events to an over-riding concern with costs in the ED under managed care. It doesn't exist," he argues. The evidence may not exist for emergency medicine; however, an Oakland, CA company called Medical Underwriters of California identified seven malpractice cases in that state that reflect what company executives say is a pattern: An increase in the number of malpractice suits in which managed care affected the outcomes.
Are providers guilty of delaying treatment?
The company, which has been analyzing malpractice losses exceeding $100,000 for more than two decades, reported seven cases that involved managed care in 1995. In 1996, there were 16, according to Ron Neupauer, vice president of Medical Underwriters. In all, there were three identifiable elements that ran as a common thread among the cases, according to Neupauer:
· Delayed treatment or treatment inadequately performed.
The delays, the company speculates in a written report, were attributed to "economic constraints" imposed on clinicians.
· Inadequate clinical staffing of either physicians or nurses, which led to monitoring lapses and further patient injury.
· Failure to transfer a patient to a better-equipped hospital in a timely manner.
Further evidence of a possible link between managed care policies and malpractice events is provided by the types of claims filed against providers. Between 1991 and 1996, failure-to-treat claims rose from an average of 12.6 per year in 1991 to 26 in 1996, according to Medical Underwriters. Together with diagnostic errors, failure-to-treat cases accounted for more than half (58.2%) of total indemnity awards granted by a judge in 1996. And recently, evidence has grown that medication errors are pushing the numbers even higher, according to Carol Golin, publisher of Medical Liability Monitor.
"Juries are responding to allegations that economic considerations may delay or interfere with clinical decisions to initiate treatment promptly," Neupauer stated in a written report. "Doctors who practice in medical groups and hospitals are subjected to traditional malpractice liability, but they are now being viewed [by juries] as cogs in large, impersonal, profit-motivated organizations," Neupauer added.
If managed care is exposing emergency providers to higher levels of malpractice liability, it isn't occurring evenly among hospitals, observes Larry Mellick, MD, MS, chairman of the department of emergency medicine at Medical College of Georgia in Augusta. Although the incidence of malpractice events is rare in EDs as a whole, there are extremely busy, high-acuity facilities that face the highest risk of exposure. And, the risk is likely to stay at a constant level at some facilities despite the best efforts of risk managers to minimize the hospital's vulnerability, Mellick adds.
"To a certain degree, malpractice risk is something beyond your control," says Mellick. "There is always likely to be an angry, disgruntled patient or family member who experienced an unexpected outcome in an ED. There are always risks of [medical] complications in this business," Mellick adds.
Then too, the exposure to malpractice events is unevenly distributed even within a hospital. "I don't think mature, experienced physicians are as vulnerable to external pressures from managed care. There is a healthy dose of fear surrounding unexpected outcomes. But it isn't something that seasoned physicians allow into their daily decision-making," Mellick says.
Malpractice exposure differs among physicians
However, Mellick can't say the same for all emergency practitioners. First-year residents and many primary care physicians working in the specialty for the first time face a higher degree of exposure than those whose formal training was grounded in emergency medicine. "I think we in emergency medicine have a healthy respect for a broad spectrum of disease processes. We're always looking for the most probable scenario in patients given the broad possibilities we typically face," Mellick observes.
More than a decade ago, emergency physicians compiled the first comprehensive, actuarial studies of risk management in the ED.1 Among the missteps in procedures cited by the researchers as ranking highest on a scale of several risk factors for emergency physicians:
· Twenty seven percent of claims involved failure to properly diagnose fractures;
· Thirteen percent involved a failure to diagnose foreign bodies in a wound or to properly treat complications of lacerations, including tendon and nerve injuries; and
· Ten percent involved a failure to properly diagnose or to treat a case of myocardial infarction.
Indeed, in a separate study, a failure to diagnose or treat cases of myocardial infarction in the ED ranked in the 19th percentile in terms of total malpractice dollars lost. A failure to diagnose or treat fractures ranked at the 14th percentile, while a similar failure with meningitis (unspecified) ranked eighth and appendicitis ranked fifth. Ectopic pregnancy ranked in the second percentile.1
What does all this mean for emergency providers? "Malpractice isn't the result of science but a sociological phenomenon arising from human disappointment," argues Henry. The disappointment involves patients (or family members) whose expectations regarding clinical outcomes were not met, he adds.
A physician's age plays a role in liability
Yet, at the same time, there are specific physician characteristics cited by some researchers as responsible for making some providers highly vulnerable to malpractice claims. A 1992 study by the University of Illinois School of Medicine in Chicago cited physicians' age, surgical specialty, and staffing in the ED as factors. Increased days spent away from the practice and "a feeling that the litigation climate surrounding the hospital or practice was unfair also played a large role."2
And often, the health care system doesn't respond quickly to the best intentions of physicians. Administrators at Northridge (CA) Hospital Medical Center issued a formal apology in July to a woman who was denied epidural anesthesia because she could not pay cash while she was in labor at the hospital.
The apology was part of a response by the hospital to charges by state health regulators that on at least six occasions the medical staff failed to appropriately manage complaints of pain from patients or failed to provide services without regard for a patient's ability to pay.
Meanwhile, Chicago's Ravenswood Hospital faces the loss of its Medicare and Medicaid certification, as well as a likely malpractice suit, for refusing to treat a 15-year-old gunshot victim who lay dying at the entrance to the ED. Workers allegedly refused to exit the facility to treat the boy because doing so was reportedly against hospital policy. The boy finally died of cardiac arrest.
According to some experts, the responsibility for preventing these errors lies with risk managers. "The value of risk management for emergency physicians can't be denied," observes Henry. "The key is to use the discipline appropriately to achieve proactive behaviors that will improve outcomes in the future. It involves taking lessons learned from individual experiences and altering future practice patterns," Henry adds.
References
1. Henry GL, Sullivan DJ. Emergency Medicine Risk Management: A Comprehensive Review 2nd ed. Dallas, TX: American College of Emergency Physicians; 1997.
2. Charles SC, Gibbons RD, Frisch PR, et al. Predicting risk for medical malpractice claims using quality-of-care characteristics. West Jour Med 1992;157(4):433-439.
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