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Risky Business II: A Whole New Category of Risk


Five years ago, it was clearly recognized that malpractice law associated with hospitalist systems was an emerging phenomenon.1 But today this is rapidly changing, says Linda Greenwald, RN, MS, the editor of Risk Management Publications at the ProMutual Insurance Group, Boston, who keeps an eye on emerging trends related to medical malpractice litigation.

“There’s a whole new category of risk coming up,” she says, “because it’s a whole new specialty that kind of exploded on the scene, and some time needs to be spent defining the role of hospitalists.”

The 2006 winter issue of the company’s newsletter, Perspectives on Clinical Risk Management, was devoted to the subject of hospitalists.2 Patient safety concerns and communication, particularly as they relate to post-discharge communication, were the two overriding issues Greenwald identified connecting malpractice risk and hospitalists. (An upcoming issue of The Hospitalist will address the topic of post-discharge communication.) From her research, Greenwald gathered that hospitalists were considered “like the residents of yore,” expected to “cover the entire house,” to be everything and do everything for everyone.

The newsletter issue advises hospitalists to explain to patients and families who you are and what your role is, and to ask them pointedly whether they have concerns about that. Many patients feel abandoned by their primary care physicians; they don’t understand the new system, and they need to be reassured about the continuity of care. In a larger sense, ProMutual also suggests that institutions provide some type of public forum in their community for the public and providers both, to openly discuss ways to make the hospitalist system work for them all.

How do we all sleep at night thinking it’s a good thing that between 92%-98% of people who are injured by our negligence don’t get compensated?

—Meg Gaines, JD, LLM

That Dollar Sign

Accumulating evidence shows that some of the contributory causes of rising healthcare-related litigiousness include patients’ higher expectations, poor provider-patient communication, and society’s adversarial legal stance.3

What is really to blame for the rising malpractice costs? “The medical system in our country is grounded in money,” says Meg Gaines, JD, LLM, clinical professor of law at the University of Wisconsin Law School, Madison. “It’s grounded in profit or, at the least, fiscal survival, depending on the institution. … In the bottom line equation, one of the variables is a dollar sign.”

Therefore, she says, anyone working in the hospital needs to recognize that, to a great extent, their working life revolves around that equation.

“The press has made this connection between [the number and amounts of payouts for] lawsuits and rising malpractice costs,” says Professor Gaines. “[It’s not] that there isn’t a connection. But what we do know, and what there is ample research to show, is that malpractice rates are much more linked to the rise and fall of the stock market.”4-10

To an insurance provider, she explains, the premiums are basically a loss leader; that is, a product sold below cost. “They don’t make money on premiums,” says Professor Gaines. “They make money investing premiums. You can see the correlation between rates and stock market performance over time.”

Professor Gaines says that the media has led the public to believe that the high cost of healthcare is due to skyrocketing medical malpractice awards. “Many of the states that put caps on their awards for malpractice torts are doing fine, but so are many states without caps,” she says. “It behooves the press to pit wicked lawyers against angelic doctors, or vice versa,” but it’s a lot more complicated than that. “And that rhetoric takes away from the real point, which is this: Nobody disagrees that too many patients are injured through negligence. But the number of patients injured through documented negligence who actually sue is somewhere between 2%-8%,” which is a very small percentage. Maybe too small.

Bad things happen to good people, and not everybody sues; it’s the people who feel that they’re cared for that tend not to sue. The documentation for this is increasing daily.

“Patients who have good, communicative relationships with their doctors don’t sue,” says Professor Gaines. “We generally don’t sue people we love or who love us.” And that’s a good thing, she speculates. “But it is important for doctors to think about this: So your patients don’t sue you, but you do make mistakes, right? And sometimes you cause injury. So how does that work for you that you have malpractice insurance that covers you for injury that you cause, but your patients won’t sue you because they love you?” she asks. “How do we all sleep at night thinking it’s a good thing that between 92%-98% of people who are injured by our negligence don’t get compensated?”

The Value of Litigation

With respect to the issue of patient safety, says George J. Annas, JD, MPH, Edward R. Utley professor of health law and the chairman of the Department of Health Law, Bioethics, and Human Rights at Boston University School of Public Health, rather than doctors and lawyers viewing each other as “predator and prey,” it would be far more beneficial for them to see each other as “natural allies.”11 He suggests that we recall the intended purpose of litigation and its value for society.

Professor Gaines concurs: “We live in this world where on the medical side people are so litigation-phobic that we really aren’t able to see the value of litigation anymore.” Healthcare itself can be viewed as a patient that might be healthier if required to pay the price of unhealthy practices: namely, failing to engage in communication and safety practices that would reduce error and injury. Shaking up that system might lead to better healthcare.11

In fact, the claim that the malpractice system is fraught with frivolous litigation has been called “overblown” and not substantiated in the literature.12 The malpractice system is effective in separating claims without merit from those with merit and compensating the latter. In an analysis of outcomes and claims costs from 1,452 closed malpractice claims from five liability insurers, “three-quarters of the litigation outcomes were concordant with the merits of the claim.”12

“Some of the most excellent doctors I know have said to me on the QT, ‘I’m sure glad you lawyers are around because if you weren’t I don’t know how we’d ever get rid of the scary doctors.’ ” says Professor Gaines. “And if the rate of malpractice claims for merited negligence “is only 2%-8%,” she says, “we’re probably not doing a great job of it.”

What makes doctors scary to patients? Or, rather, what makes a good doctor? When patients and physicians were both asked this question (pertaining to outpatient physicians), more patients than doctors considered the exchange of health-related information to be an essential aspect of their healthcare. Physicians placed it far lower on their list.13 These kinds of differences in perception may influence the quality of interactions between physicians and patients, the study concluded.

Professor Gaines, who has consulted with hundreds of physicians and nurses in her role as director of the Center for Patient Partnerships at the University of Wisconsin, encourages them to spend time in meaningful communication with their patients. “Their argument usually is: I don’t have time.” she says. “My answer is: You don’t have time not to.”

Communication and Patient Safety Concerns

The needs for superb patient safety and optimal healthcare communication are intertwined. In research on quality of care, patient safety is now specifically named as a factor and is distinguished from effectiveness.4 Malpractice litigation is often pursued when patients experience an adverse outcome coupled with a lack of empathy from and a withholding of essential information by physicians.14 Senators Hillary Clinton (D-NY) and Barack Obama (D-IL) cite documentation for this when they advocate for patient safety to be the centerpiece of medical liability reform.

As careful as hospitalists might be to protect their patients from safety hazards and errors, however, they alone cannot protect themselves and their institutions from wrongdoing or the risk of litigation.

“In hospital care, the challenge is to reform corporate governance to make hospital boards take their responsibility for patient safety at least as seriously as they take the hospital’s financial condition,”11 writes Professor Annas, who’s affiliated with both Boston University’s School of Law and School of Medicine. “Hospitals that do not take specific actions to improve safety should be viewed as negligent and be subject to malpractice lawsuits when a violation of the right to safety results in injury.”

It is also the hospital’s obligation, he says, to maintain a safe environment for healthcare providers. And hospitalists and other providers who “live” in hospitals have an ethical obligation to advance the connection of patient safety and communication in hospital-medicine-led quality improvement as well as whole-hospital initiatives.3,11,15,16 That means that staffing, technologies, and facilities must all be up to par so providers can work with the assurance that available resources will support their efforts to provide the best care for their patients.11

Those objectives were taken on by the University of Michigan (Ann Arbor) in a program launched in 2002 to reduce litigation costs, accelerate provision of compensation to patients, and increase the numbers of patients who are compensated for their injuries. The link between the medical liability environment and patient safety was well illustrated in their results. The program involved three strategic components:

  1. Acknowledge cases in which a patient was hurt because of medical error and compensate these patients quickly and fairly;
  2. Aggressively defend cases that the hospital considers to be without merit; and
  3. Study all adverse events to determine how procedures could be improved.

Whereas the organization had approximately 260 claims and lawsuits pending at any given time prior to August 2001, by August 2005 the number had dropped to 114. The average time from the filing of a claim to its resolution was reduced by 11 months, and annual litigation costs dropped from about $3 million to $1 million.14

This program clearly connected the dots between responsibility, compensation for merited negligence, systems quality improvement, and communication across the board. Senators Rodham Clinton and Obama infused their bill with the sensibility that these humane criteria are particularly important.14 When healthcare providers, administrators, and regulators around the world are being advised that a “post-event communication-cum-mediation framework” is the key national strategy for resolving malpractice disputes,3 the need for empathy, apology, and responsibility are implied. (See “I’m Sorry,” June 2006, p.25.)

“When I talk about patient safety, I imagine hospitalists are particularly attuned to this,” says Professor Gaines, “I am talking about what a physician could do in 15 seconds if every single patient is actively engaged in their [own] care.” It’s a no-brainer and “the easiest thing in the world if patients are invited and made to feel welcome as full members of the team.”

Inattention to little things can cause the risky miscommunications that lead to serious problems, both medically and legally. And yet, says Professor Gaines, the remedy is sometimes as easy as “having an informed patient partner as the final check.”

The Bottom Line for Hospitalists

When asked what she wants to say to hospitalists from her personal experience as a hospital inpatient as well as that of her extensive professional background as a criminal defense lawyer, law professor, and patient advocate, Professor Gaines began with her own expression of empathy. “First, in many ways you’re being asked to do an impossible job,” she says. “And patients like me, critics, and commentators will say, ‘Hey! You’re not doing it as well as you could.’ ”

Hospitalists, she says, might be prone to say, “ ‘Leave me alone. I’m doing the best I can.” You’re doing what may be an untenable job, you’ve got specialists leaning on you from one angle, patients and families … wailing on you from another level, and you’re … stuck in between: a utility player, the one everyone loves to boo off the field when you’re having a bad day.”

On the other hand, she says, “Every day I am carving another little bit of my epitaph, and what it says at the end is of my making. And if you can’t carve in these circumstances, then change them or do something about it. But when the bell tolls for thee, the fact that you worked in a busy hospital and had a bunch of overqualified guys breathing down your neck and under-informed patients blaming you for things that aren’t really your fault—that’s going to be footnote material. Carve out your ground, stand it, and do the job you can be proud of. And nobody and nothing gets you off the hook for that.”


The rising costs of medical malpractice litigation are far more a function of the fluctuations of the economy, among other factors, than of the number and size of malpractice claims payouts. Data show that the vast majority of expenditures that go toward litigation are not due to frivolous claims or unmerited compensation. In fact, litigation may hold value in serving to remind hospitals and providers that the best means of warding off lawsuits is to invest resources in patient safety, including prioritizing communication with patients, families, and colleagues. TH

Andrea Sattinger wrote “Risky Business I” in the Feb. 2006 issue (p. 1).


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  2. Greenwald L, ed. Hospitalists. Perspectives on Clinical Risk Management. Winter 2006.
  3. Harold TK. Minimizing medical litigation, part 2. J Med Pract Manage. 2006 Mar-Apr;21(5):257-261.
  4. Brennan TA, Gawande A, Thomas E, et al. Accidental deaths, saved lives, and improved quality. N Engl J Med. 2005 Sep 29;353(13):1405-1409.
  5. Brennan TA, Mello MM. Patient safety and medical malpractice: a case study. Ann Intern Med. 2003 Aug 19;139(4):267-273.
  6. Brennan TA, Sox CM, Burstin HR. Relation between negligent adverse events and the outcomes of medical-malpractice litigation N Engl J Med. 1996 Dec 26;335(26):1963-1967.
  7. Brennan TA, Leape LL, Laird NM, et al. Incidence of adverse events and negligence in hospitalized patients. Results of the Harvard Medical Practice Study I. N Engl J Med. 1991 Feb 7;324(6):370-376.
  8. Harvard Medical Practice Study. Patients, doctors, and lawyers: medical injury, malpractice litigation, and patient compensation in New York. Report of the Harvard Medical Practice Study to the state of New York. Cambridge, Mass: President and Fellows of Harvard College; 1990: Last accessed July 11, 2006.
  9. Localio AR, Lawthers AG, Brennan TA 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 Jul 25;325(4):245-251.
  10. Mills DH, ed. California Medical Association and California Hospital Association Report on the Medical Insurance Feasibility Study. San Francisco, Calif: Sutter Publications; 1977.
  11. Annas GJ. The patient's right to safety—improving the quality of care through litigation against hospitals. N Engl J Med. 2006 May 11;354(19):2063-2066.
  12. Studdert DM, Mello MM, Gawande AA, et al. Claims, errors, and compensation payments in medical malpractice litigation. N Engl J Med. 2006 May 11;354(19):2024-2033.
  13. Laine C, Davidoff F, Lewis CE, et al. Important elements of outpatient care: a comparison of patients' and physicians' opinions. Ann Intern Med. 1996 Oct 15;125(8):640-645.
  14. Clinton HR, Obama B. Making patient safety the centerpiece of medical liability reform. N Engl J Med. 2006;354:2205-2208.
  15. Studdert DM, Mello MM, Brennan TA. Medical malpractice. N Engl J Med. 2004;350:283-292.
  16. Delbanco TL. Quality of care through the patient's eyes. BMJ. 1996;313:832-833.

A Wild Ride

Referring to her course of treatment for the diagnosis of ovarian cancer she received in 1994, Meg Gaines, JD, LLM, says: “I had a healthcare experience that included everything from bona fide negligent medical error to brilliant risk-taking that saved my life, and everything in between.” Professor Gaines gave TH a summary of the incidents that spurred her to co-found the Center for Patient Partnerships at the University of Wisconsin in Madison.

When I was initially examined my gynecologist, she thought she felt an ovarian cyst. She scheduled a laparoscopy, but the cyst burst during surgery. That’s probably how I wound up with a tumor in my liver.

My surgeon and second gynecologist didn’t tell me this. First they said it was not cancer; then they said it was borderline tumor. Then I had the pathology reread and there were two different ovarian cancer cell types.

Next, my primary care physician missed that there were blood clots metastasizing. He put me on pain meds and, ultimately, crutches before I wound up in the hospital with pulmonary emboli. I was put on such a high dose of anticoagulants by my medical oncologist that he couldn’t reduce them quickly enough so that my blood could clot and they could perform a biopsy. An IV infusion of vitamin K, given to me too quickly, put me in anaphylactic shock.

When my liver was able to be biopsied, the pathologists found ovarian cancer. Very shortly after the biopsy result, one of my oncologists scheduled me to get a port put in for my chemotherapy. When I woke up from that procedure, I had this strange feeling like I’d had when I’d had the pulmonary emboli and went into shock: I couldn’t breathe. The surgeon who put the port in had been summoned emergently as my left lung had collapsed; he had punctured it trying to install the port in the left side. Four days later, with a still-not-fully-inflated left lung, the cardiologist opined that the chest tube was too small and recommended installing a larger one, removing the smaller one first. So the surgeons had to do an emergency intubation.

And it goes on from there.

That’s the bad side of it. I got quite an education. But my story’s not unusual, and people shouldn't think that it is.

The amazingly wonderful part of my journey included a powerful, respectful, and wonderful relationship with my gynecologic oncologist (my third oncologist) in Madison, who served as both my medical oncologist and surgeon. I’d had some great care and some not so great care along the way, by a number of different physicians and surgeons.

I went to Los Angeles for a consult with someone else because I wanted to “hit the long ball,” to take a chance on cure and not settle for an extended remission. It was a huge risk, but on the other hand, there wasn't a lot that standard treatment had to offer me at that point. Though I had found a chemo that was incredibly effective, I didn't want to rely on chemotherapy. I wanted to have surgery plus effective chemotherapy. I felt it was my best shot at a home run.

The surgeon in Los Angeles thought I had 12 tumors, and although I had “failed” chemotherapy, he agreed to open me up and “cryo” my liver. When he did … he discovered that I had only ever had one tumor in my liver and he froze it out. … This guy took a huge risk on me—this 38-year-old woman, mother of two little kids. And he saved my life. There are no words for the gift he gave me.

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