More than a third of all physicians have had at least one malpractice suit filed against them, which helps explain why insurance can run into the six figures. And now, after decades of relative stability and even declines in premiums, the American Medical Association reports that they have been trending up for many specialties since 2015. These costs are ultimately borne by patients, of course, which means health care may become even more expensive.
The good news is that we have developed a far better understanding in recent years about why malpractice claims arise in the first place – it turns out they often have more to do with poor communication than bad medicine. And, a series of reforms and new approaches are underway that are reducing malpractice claims and improving patient outcomes.
Although large jury awards get the most attention, they account for a tiny fraction of cases. An AMA policy report for the period 2006 through 2015 found that only 7 percent of claims were resolved by a trial verdict, and defendants won 87 percent of those cases; 23 percent of claims were settled before trial.
Significantly, the vast of majority claims – 68.2 percent – were dropped, dismissed or withdrawn. But, the AMA reported, they were still a drain on the system. “Each of these [DWW] claims costs an average of $30,475 to defend, accounting for more than one-third (38.4 percent) of total expenses incurred.”
These numbers suggest a central overlooked fact: malpractice cases often have less to do with the quality of the treatment delivered than with quality of the relationship between the patient and their doctor and the larger health care system.
This insight inspired us at Michigan Medicine to dramatically reform the way we handled malpractice claims. Beginning in 2001, we saw that the traditional way of handling such complaints – an adversarial “deny-and-defend” approach which sought to limit the exchange of information between doctors and aggrieved patients – benefitted no one. In response, we developed a transparent system in which the hospital was willing to acknowledge mistakes and to explain why some bad outcomes were nobody’s fault.
The concept was simple: a system of accountability based on the open exchange of information with patients (and, if need be, their lawyers) to transform an adversarial relationship into a cooperative search for truth and fairness. That’s exactly what happened. In the first six years, malpractice claims dropped by 36 percent and attorney and patient compensation declined 59 percent as we honored our obligation to patients who did not receive the treatment they should have and helped other patients understand the factors that influenced their outcomes.
Replacing fear and secrecy with transparency and disclosure is also helping Michigan Medicine respond to and address problems more quickly. Instead of pretending mistakes had not occurred as part of a legal strategy, our willingness to forthrightly acknowledge and fix medical problems has allowed us to improve our care.
In 2016, the federal government began sharing this approach with hospitals across the country through its aptly named CANDOR Toolkit, which stresses the overriding importance of open communication in resolving such claims.
Even as hospitals and health care systems reform their approach to malpractice claims, other efforts are aimed at addressing patient concerns associated with their doctors’ practices that can lead to claims and post-surgical complications. One promising approach, developed at Vanderbilt University, is the Patient Advocacy and Reporting System (PARS).
Based on patient/family complaints reported and recorded at more than 150 medical centers and medical groups throughout the United States, the creators of PARS have found that patient frustration with doctors who they see as rude, uncaring and unwilling to share information can foster an unnecessarily adversarial relationship. They have also found that physicians with comparatively high numbers of unsolicited complaints from patients and families are also more likely to be associated with more malpractice claims. This aligns with other research that has found that a small proportion of physicians account for a disproportionate number of complaints and claims.
To help the small proportion become aware they stand out from peers, PARS first identifies such high-risk doctors. Next it provides peer-comparative data that a well-trained physician shares in a nonjudgmental conversation aimed at discussing the date, not issuing a warning. A five year study found that at-risk physicians welcomed the feedback – 59 percent of them agreed with the concerns raised, while only 10 percent disagreed and 82 percent had a positive response to the first meeting.
It is not surprising, then, that another study found that 72 percent of at-risk physicians generated fewer complaints. Vanderbilt also found a decline in the number of malpractice claims.
While PARS and the Michigan Model are effective at addressing malpractice, they work because their aim is not to reduce liability but to improve care. They place the emphasis where it should be: on medicine rather than the law. They remind us that the doctor/patient relationship is just that – a relationship – which, like all others, depends on the trust built through open communication.
Marschall S. Runge, MD, PhD, is Executive Vice President for Medical Affairs and Dean of the Medical School for the University of Michigan.