Bad Outcome = No Malpractice

 Coronary artery bypass surgery has a 2% mortality. In treating depression 1/2 to 1% of patients commit suicide. The mortality rate for diabetic ketoacidosis is14-17%. All are bad outcomes without medical error.

Medical Error = No Malpractice

A medical error may not result in malpractice. The transfusion of ABO incompatible blood causes death in 2% of patients, but no adverse effect in 47% of patients. Failure to give perioperative corticosteroid to a patient with Addison's disease can cause death, but even if recognized at the last minute with survival, the patient is clinically the same the next day.

 Medical Error -> Bad Outcome  =  Potential Malpractice

 Even when medical error causes a bad outcome, only potential malpractice exists.

Potential Malpractice + Dissatisfaction = Lawsuit

Only when patient or relative dissatisfaction is added to potential malpractice, does a lawsuit result.

 THE LITERATURE

For the reader needing more proof than my anecdotal reading of hundreds of depositions, three recent papers from the Journal of the American MedicalAssociation are offered.

All three are derived from the late 1970s and early1990s. During that time, only forty-eight cents of each premium dollar went to patients and 85% of all claims payments were made on behalf of only 3% of physicians.

In 1975, the Florida Department of Insurance began to make a public record of closed malpractice claims naming plaintiff and physician.

At Vanderbilt University, a pediatrician, Gerald Hickson, and a lawyer, Ellen Clayton, chose to study obstetric complications in Florida over the four years beginning in 1986 [1]. Of the 368 claims of perinatal injury, 125 patients or families responded to detailed questions. The results are recorded in Table A.

 

Notice the high frequency of poor communication: physician would not talk - 32%; physician would not listen - 13%; and the physician tried to mislead them - 48%. Revenge was one of the most frequent reasons for making a claim.

In 1986, the Florida Department of Insurance expanded the public malpractice insurance information to include cost:

            trial case - judgment plus defense cost

            settled claim - amount plus defense cost

            dismissed claim - defense cost

The Vanderbilt group began to examine these data, again in the obstetric area. They studied seven years beginning in 1977. During this time all obstetricians in Florida averaged four claims in seven years (.57 claims per year). The average cost of each claim was $52.500.00. They found fifty-three (11% of all practicing obstetricians) with more than four claims in seven years. This group was further divided into those averaging more than $52,500.00 per claim designating them "high pay" (32) and the remaining (21) with less than $52,500.00 per claim as "high frequency". For comparison, 305 obstetricians were chosen with no claims or only one in seven years practicing in the same or adjacent counties. They then questioned 963 women delivered by these 358 physicians sampling more patients from the "high pay" and "high frequency" groups [2].

In Table B the patients delivered by High Frequency obstetricians had twice as many complaints as those delivered by No-Claims obstetricians. Comparing the complaints of High-Frequency women with their No-Claims sisters: would not talk three times; would not listen - four times; and no concern for me as a person - six times.

 

In Table C, twice as many High-Frequency patients spent less than ten minutes per visit, always felt rushed, and could not reach the physician by phone postpartum compared with No-Claims patients. These data emphasize the importance of the two BIG Ts of dissatisfaction in these papers and hostile dispositions: Telephone access and Time to talk with the physician. The physician may consciously or unconsciously reward limitation of telephone access by office personnel. Office managers, third party payers, and physicians themselves may conspire to erode the time available to patients.

The real shock of this study comes from a companion paper [3] measuring the quality of clinical care given to these patients: it found no difference! The only difference was perception projected by the obstetricians to their patients.

The third study conducted by the University of Oregon and Johns Hopkins University [4] evaluated the quality of communication to patients by 124 physicians in Oregon and Colorado: sixty-five surgeons (general and orthopedic) and fifty-nine primary care physicians (family practice and internal medicine) were preselected into no malpractice claims and two or more claims groups. All agreed to take a tape recorder with them into examining room for ten consecutive office visits. The 250 to 300 utterances per visit were then classified into 38 mutually exclusive categories and analyzed in Table D.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

A difference between No-Claims and Claims surgeons could not be measured. The visit length for the No-Claims primary care physicians was 3.3 minutes longer - a whopping 22% more - the same T of the two BIG Ts. The No-Claims primary care physicians used more statements of orientation and laughed more.

I would submit that laughter and humor are the psychic grease of high-intensity care sites in the hospital, such as the intensive care unit and operating room. Laughter is part of the " happy ship syndrome". One of the first happy ships in the United States Navy was the aircraft carrier Lexington. She was commissioned in 1927 and sunk in the Coral Sea in 1942. During those fifteen years. Lady Lex was described as a happy ship through several commanding officers and an ever-changing crew. A naval historian described a happy ship as one "with a self-perpetuating tradition of optimism and happiness". During three years in our Navy, I was onboard both a happy and an unhappy ship. During thirty-seven years in Fort Wayne, I have been in happy and unhappy offices, first as a practicing physician and more recently, as a patient. The smoldering anger and distress in an unhappy office is almost palpable upon entering.

 ADVICE

Physicians cannot get a humor transplant, nor can they change their personality. The arrogant, aggressive behavior that may have been helpful in a competitive residency or for increased compliance in the intensive care unit and operating room, will be harmful in a

waiting room of anxious relatives. A real catastrophe occurs on exposing this behavior to a skillful plaintiffs lawyer before a jury.

Self-discipline can overcome the two BIG Ts by preventing the erosion of time available to patients and not encouraging insulation from telephone calls.

Practice management experts are uncertain about correction of the unhappy office. Some would advise firing everyone and starting all over again.

Since not one reference in the world's literature documents that attending a malpractice risk management seminar reduces the probability of a claim, don't waste your time unless you get a free meal or premium discount. Instead, just do five things:

1. Be nice to the patients and relatives.

2. Make time for patients.

3. Be available to the telephone.

4. Laugh.

5. Run a happy ship.

 

 REFERENCES

1. JAMA, March 11, 1992 - Vol. 267, No. 10. 1359-63

2. JAMA, November 23/30, 1994 - Vol. 272. No. 20. 1583-87

3. JAMA, November 23/30, 1994 - Vol. 272, No. 20. 1588-91

4. JAMA, February 19,1997 - Vol. 277, No. 7. 553-59

 

This article appeared in the FORT WAYNE MEDICINE QUARTERLY

SUMMER 2004 • VOL. 2, ISSUE 2.   Reprinted with permission.

Dr. Joseph Richardson is a retired internist and was medical director for nine years for Medical Protective Insurance Company.  Medical Protective is the largest malpractice insurance company in the world.  Currently, he is a member of The Reviewing Physicians Group, a non-testifying group of physicians who review malpractice cases.