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Malpractice Suit Avoidance

By November 27, 2018Commentary

Health care providers generally live in fear of malpractice claims.  Aside from the financial exposure, personal embarrassment and reputation damage can ensure from claims of medical errors.  The fear of these lawsuits may also drive unnecessary health spending, as providers perform tests and deliver other services that are largely designed to insulate the provider from claims that they should have taken certain actions.  While the research indicates a wide range of potential impacts on health spending, I personally belief there is a very substantial effect.  To combat malpractice litigation, some providers have initiated proactive programs of acknowledging potential errors and attempting to resolve them informally.  A study carried in Health Affairs attempts to quantify the effects of the program.   (HA Article)   Some facilities have been reluctant to adopt these programs because of concern that they could amount to admissions of liability that would be used against the provider in a lawsuit.  The researchers compared four hospitals in Massachusetts that implemented a communication and resolution program with hospitals that did not adopt such a program.  According to the standards for the program, if the hospital believed subpar care was delivered, it was obligated to conduct an investigation and if the investigation revealed that significant harm may have been caused due to negligence, the facility’s liability insurer was notified, and following that, the patient and family were met with and an appropriate resolution offered, including communication of what happened, an apology, and/or some form of financial compensation.  Hospitals appeared to apply the program broadly, as 75% of the incidents investigated resulted in a  conclusion that there was no breach of the standard of care.

The effect of the program on claim volume, defense costs, time to resolution and payments to patients was determined and compared to the control group.  In addition, an analysis was conducted for a significant time period before the introduction of the program as well as several years after.  This allowed pre and post-intervention comparisons across the intervention and control facilities.  Following the start of the program, there was generally a downward trend in the number of malpractice claims, but that occurred at both the implementing and comparison hospitals.  Total malpractice compensation costs also generally declined for all but one of the implementing facilities, but rose for comparison community hospitals.  Percents of all claims receiving some compensation did not change in either group.  Defense costs also did not change meaningfully for either the implementing or comparison institutions, except that they did increase at implementing academic medical centers.  And time to resolution was roughly the same before and after and across the compared groups.  The results suggest that in some ways the communication and resolution programs improved the malpractice experience and in a few aspects may have made it worse.  Since these programs seem like the right thing to do, and since they don’t appear to dramatically increase costs and may reduce them, hospitals should probably not fear using them.


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