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Doug Wojcieszak, Sorry Works!

Medical malpractice lawsuits cost doctors millions of dollars annually in lost wages. Though 80 percent of malpractice cases filed in the state of Tennessee are dismissed with no compensation to patients, it still costs physicians between $150,000 to $200,000 to defend a non-meritorious claim — not to mention the psychological toll such lawsuits bring. So risk managers are always at work identifying the best practices to better protect doctors and their patients from a lawsuit.



Self-regulation

While some might view the threat of medical malpractice as part of the cost of doing business today, consider this. Studies done by Vanderbilt University pediatrician and professor Dr. Gerald Hickson, reveal that just 2-8 percent of physicians (per discipline) account for nearly 30 percent of malpractice claims. A much higher number of doctors — 35-40 percent of those even in high-risk disciplines like cardiology and orthopedics — are never sued. That figure jumps to nearly 60 percent for doctors who practice family medicine.

As the director of the Center for Patient and Professional Advocacy at Vanderbilt University Medical Center, hospitals across the country hire Hickson to do risk assessment of approximately 28,000 doctors. The objective is to identify those practitioners who are at high risk of being sued due to the unhappiness of patients, and encourage them to take action before trouble occurs. Through a peer training program, physicians share assessment findings with these at-risk colleagues. Hickson said 60 percent of those identified self-regulate, making substantive changes in how they manage patients. But not all doctors respond favorably to such difficult news. Twenty percent are unable or unwilling to make performance changes and another 20 percent choose instead to practice in another state.

According to Hickson, doctors who continually generate the most complaints exhibit similar traits. They have an ineffective communication style, tend to be narcissistic in nature, and show a marked lack of concern toward their patients. Such breeches “add up” noted Hickson, “so that when a bad outcome takes place, there’s already a lack of trust” between the physician and patient. And that breech of trust spells trouble.



Acknowledge Error

In Doug Wojcieszak’s view, doctors who break the patient’s trust when a mistake is made, either by clamming up or abandoning the family altogether, compound the problem. Wojcieszak, founder of Sorry Works! started his advocacy coalition in 2005 after losing a brother to medical error and filing a malpractice suit against the hospital and doctors involved.

Like many plaintiffs, “We sued to get information and a sense of justice,” he said. It wasn’t until after the suit was settled that Wojcieszak received an apology from hospital attorneys, though fault was never admitted for the incident. Wojcieszak asserts most people who sue are angry or upset, and not just because of an error in treatment, but rather the way doctors respond to the incident, by being unresponsive to families or by covering up information.

“Most patients don’t want to sue their doctor. They often like him, and want to work with him. It’s only after experiencing a wall of silence they decide they’ve got to sue. It’s only when doctors push patients in that direction do people pick up the phone and call an attorney,” he said.

“A malpractice suit is a way of communicating. It’s a concrete way of saying, ‘You haven’t listened to me up until now, now maybe you will.”

In his book, Sorry Works! Wojcieszak advocates in favor of apology, a strategy he teaches to insurance and risk management professionals. When a physician acknowledges an error (without assigning blame to another provider), recognizes the harm a patient has suffered, offers an apology, discloses what is known, and works on future treatment options or compensation, it’s more difficult for the patient to remain angry if he perceives the physician is attempting to do the right thing.

Debbie Willis, vice president of risk management at State Volunteer Mutual Insurance Company in Nashville, agreed.

“It’s important to meet these issues head-on, to let patients know what you know about what happened, what type of investigation is going on, what you expect to find out, and what the time frame is,” said Willis, whose company insures 90 percent of Tennessee physicians for malpractice. “Every patient is entitled to an accurate understanding of what’s gone on with his or her healthcare.”



Improve Customer Service

Avoiding a malpractice suit isn’t the sole responsibility of the physician. Striving for better customer service is a goal that must be embraced by everyone in a practice. That means shoring up things like testing and tracking issues by making sure there is adequate patient follow-up when problems arise, said Willis.

“You need to have good systems in place at the office, and a staff who can appropriately use them.” Accurate documentation should also allow for appropriate communication, “so that anyone involved with patient care can look at the chart and know the care that patient’s been given. If the documentation is not there, it’s harder to defend because it’s only the doctor’s testimony. That’s not to say his word isn’t credible, but if it’s not on the chart, it didn’t happen,” said Willis.

Business consultant Judy Marston said patients are also more willing to forgive small mistakes or inadequacies if they’ve built a good rapport with their physician. “Front line people are so important because they set the tone for how a patient perceives they’ve been treated by a doctor,” said Marston, who speaks to medical organizations about the importance of providing good customer service as part of a risk management strategy.

According to Marston, the average patient comes in contact with three to seven staff members at an office before being examined by a physician. If a patient is treated politely and respectfully by everyone encountered — from the receptionist at check-in to the lab technician who draws blood — then when she does see the doctor, the expectation is higher that he will be respectful as well. “If it’s the other way around,” says Marston, “the patient will be looking for negatives.”

Ultimately, said Hickman, it’s incumbent on doctors to treat patients and their families as critical members of the healthcare team. “Respect them, listen, provide good access to them,” said Hickson. And most importantly, remember “there’s not a single frivolous lawsuit. The client must live through the hurt. Malpractice suits may be non-valid, but they’re never frivolous.”



June 2008

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