As an insurance adjuster, an expert witness, a researcher, and a consultant, I have seen a number of medical professional liability (MPL) claims.  Some of them make sense. 

A physician deviates negligently from the standard of care, an injured patient sues, and an insurance company pays for damages.  Unfortunately, MPL exposure includes this and much, much more.  In fact, medical malpractice (deviating negligently from the standard of care) is only a small part of the exposure.

All too often, a patient experiences a bad outcome that was not caused by physician negligence.  Nonetheless, he or she sues the physician. 

While this rarely results in a decision favoring the plaintiff, such outcomes are just common enough to give hope to plaintiffs and their lawyers.  Because it is expensive to defend these lawsuits, such behavior inflates the cost of medical care substantially.  In fact, a recent article in Health Affairs finds medical professional liability added more than $55 billion to the cost of medical care in 2008.  Thus, it comes as no surprise that risk management remains a hot topic among healthcare practitioners and administrators.

If we look no deeper at this problem, we might conclude that the plaintiff bar lacks intelligence and a moral compass.  This would be huge mistake. 

Outcomes of the civil justice system rely on one basic question.  Do twelve members of a jury want to take money from one person (the defendant) and give it to another (the plaintiff)?  While one might hope this decision always rests on the rule of law and facts of the case, a candid lawyer will tell you this does not jibe with reality. In fact, some medical professional liability cases are resolved in favor of the plaintiff (usually as a settlement) because the participants are concerned that a jury will reach an errant conclusion. 

How, then, can we manage this risk to reduce its cost? The first step is to identify the exposure.  For many exposures, identification is simple.  For example, storing gasoline next to a furnace is likely to create a fire.  However, in the case of medical professional liability, the cause of meritless litigation is less obvious. 

A common set of loss prevention measures provides insight.¹  Only one out of ten often cited loss control suggestions even remotely involves the standard of medical care.  This suggestion is to “diagnose and test thoroughly.”  Others include: know the patient, communicate with patients, exercise courtesy, keep thorough records, pay attention to activity levels in other parts of the hospital, do not take on too much work, and monitor partners and staff.  None of these directly correlates with delivering quality care. 

It is also instructive to consider results from the controversial Harvard study suggesting only a tiny fraction of actual malpractice incidents result in claims or lawsuits.

Some candid plaintiff’s lawyers have also informed the risk management process.²  When asked how they select which doctors they sue, they indicate they are more likely to sue when: the doctor is perceived as arrogant, the patient does not like the doctor, and when the doctor has poor bedside manner. 

In contrast to the complexity of medical diagnoses and procedures, risk management and loss control strategies are often quite simple.  For example, Dr. Richard Roberts MD, JD, FAAFP³ suggests the four C’s of risk management: Compassion, Communication, Competence, and Charting. 

Compassion is a reminder that, while treating patients is your job, the patient is not at work. Treatment is part of the patients’ life.  They appreciate the opportunity to speak and be heard.  The probability of a lawsuit plummets when patients feel respected.  In addition, it is more pleasant and much less expensive to spend a few additional minutes with patients in your office than to spend weeks with a defense attorney preparing for a lawsuit.

Communication is Dr. Roberts’ cue to be mindful of how medical professionals communicate with each other.  Physicians often practice as part of a team.  Communication among professionals is commonly shortened or editorialized to make routine references easier or, in some cases, humorous.  The only persons outside your colleagues who appreciate this practice are plaintiffs’ attorneys. 

Competence recognizes that medicine is an enormous and dynamic field.  Even the brightest doctor will not always appear competent on her own.  Remember, the four C’s are an approach to medical professional liability, not necessarily medical malpractice.  The recommended approach to mitigate questions of competence is to seek consultation from one’s peers frequently.  Even when you are confident of your decision, demonstrating to the patient that another physician agrees with you will reduce exposure to lawsuits.

Finally, Charting is the primary source of evidence in MPL lawsuits.  It is important to be honest, objective, and legible in charts.  Of these, objectivity is perhaps the most elusive.  Responsible physicians chart or record information at the time of treatment.  This leads to accuracy, but it can also introduce opinions about the patient in the heat of a moment.  Dr. Roberts gives the example of foregoing phrases like “drunk and obnoxious” in favor of “combative with an ethanol-like odor.”  The former might be accurate most of the time, but the latter is objective and accurate; even when a patient is in a state of diabetic ketoacidosis.

If Arkansas physicians keep the four C’s in mind, insurers like Arkansas Mutual will continue reducing premiums to reflect the high quality of medical care in our state.

Lars Powell, Ph.D. holds the Whitbeck-Beyer Chair of Insurance and Financial Services in the College of Business at University of Arkansas – Little Rock.  He is a founding board member of Arkansas Mutual Insurance Company, Principal of Powell & Associates Insurance and Economic Consulting, and Editor of the Journal of Insurance Regulation.

¹ These loss control tips are commonly attributed to several sources.    The most likely origin is a publication of Promedion Professional Education.

² See, for example, Carol Pincus, ed. Berkeley Rice. “How plaintiffs’ lawyers pick their targets.” Medical Economics, 8:94.

³ Dr. Richard Roberts, 2003, “Seven Reasons Family Doctors Get Sued and How to Reduce Your Risk.” Family Practice Management, 10(3):29-34, March 2003

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Little Rock, AR 72212

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