Figure 18.5 outlines the tools to reduce litigation. These include: (1) competency, (2) communication, (3) recognizing complications, (4) documentation, (5) time-outs/checklists/handoffs, and (6) systems.
Tools to reduce litigation.
In an American Academy of Orthopaedic Surgeons (AAOS) opinion piece, COPIC’s Chairman and CEO Ted J. Clarke, MD, emphasized that physicians who don’t get sued stay up to date with medical literature, stating that the real test of competency is a satisfied patient or colleague who appreciates the treatment provided.19 Says Clarke:
These surgeons know their abilities and limitations. Before performing a new procedure, they would scrub multiple times with an accomplished surgeon and ask for help with the case until they themselves felt competent. Because they trained in the era before arthroscopy, closed rods, and the development of arthroplasty procedures, they learned new skills by working with other surgeons, animals, and lab models. The practice of surgery does not mean practice on your patients.
The uniform application of knowledge and skill in a favorable environment is as important as the possession of knowledge and skill. Failed judgment and poor decision making are usually the result of cognitive errors caused by flawed behavioral practices rather than a lack of knowledge. Identifying systems and behavioral causes of errors may help to define best practices and lead to safer patient care through improved systems of care and increased diligent attention to ordinary tasks that require more time than knowledge on the part of surgeons.11
What’s at the heart of medical litigation? Patient dissatisfaction, which is why surgeons need to be good communicators. The combination of a bad outcome and patient dissatisfaction is practically a recipe for lawsuits. And, communication failures often lead to bad outcomes—including complex errors. In fact, when The Joint Commission surveyed sentinel events from 1995 to 2004, 66% were believed to be related to communication mishaps.20 Many times, communication failures result from hierarchical difficulties, conflicting roles, ambiguity in responsibilities, and power struggles. Many of the 5 areas of surgery identified by COPIC as resulting in litigation have to do with communication, whether it’s communicating with a patient in the office doing informed consent or communicating with the surgical team in the OR during a time-out. These are different situations, yet each requires good communication.
Is Nonverbal Communication Important?
Nonverbal communication is a key skill for all physicians. You communicate nonverbally through your posture, facial expressions, eye movements, tone of voice, gestures, and touch. Humans send and interpret such signals subconsciously. Research has suggested that between 60% and 90% of all meaning is derived from nonverbal behavior.21 This is especially true when the situation is emotional, which is often the case in medicine. Body language can provide clues as to the attitude or state of mind of a person. As a clinician, you need to always be aware of the patient’s nonverbal clues. More importantly, clinicians need to have congruent body language; your posture and tone must mirror the words you speak—particularly when comforting a patient. When you are performing a surgical time-out, texting on your cell sends the wrong nonverbal message (and no, this statement does not go without saying—it happens).
Why Is Communication So Important?
Communication between surgeons and their patients is particularly important. Patients visiting surgeons may be fearful as they have to make decisions about whether to undergo risky procedures. These decisions may be difficult and complex, and patients often lack information about the procedures, the options related to nonoperative treatment, and the postoperative course. As a surgeon, you need to conduct conversations about complicated medical issues, about treatment choices, complexities of surgical procedures and options—and allay your patient’s fears and build trust during short visits. Consequently, surgeons require sophisticated skills in a variety of communication tasks, including:
Empathic communication is the understanding of the feelings of the patient and a conveyance of that understanding. It occurs through careful attention to nonverbal communication, listening attentively, staying with the patient through his or her story, and reflecting or summarizing what you have heard. This improves the patient’s experience and is the therapeutic technique that produces good results.
Where Does Communication Between Surgeons and Patients Frequently Break Down?
Several studies found that surgeons spend a very small amount of time discussing “nonbiomedical” issues, and they miss opportunities to address patients’ emotions or worries and to express empathy. Patients often present their fears in the form of a clue or a subtle mention of an issue, perhaps hoping that the surgeon will notice and comment.22 Most research demonstrates that surgeons could focus greater attention on the emotional and psychosocial aspects of care.
3. Recognizing Complications
The ability to recognize early postoperative complications is a skill all surgeons need in order to avoid litigation. Remembering that any procedure on a patient is never without risk is important; we must accept the possibility of failure, and be prepared to admit it, recognize it, and take appropriate action. Secondly, due to the complexity of our medical system, failures of the processes we have put into place are very common, probably much more so than we are aware. We should be cognizant of the high-risk systems (such as management of lines and drains and of pain medication) and take extra measures to ensure they are functioning smoothly. Thirdly, we should be aware that most of these malfunctions result from communication failures among providers. Surgeons need to play an active role in creating a culture that asks for input from colleagues, nurses, patients, office staff, and others, and makes use of that information in order to continually assess our patients for progress in the postoperative period. There is no substitute for a careful bedside assessment of the patient who is not doing well and for careful consideration of further testing when indicated. In short, you should anticipate success but plan for failure to maximize the likelihood of a successful operation. Unanticipated outcomes occur, but recognizing and addressing them in a timely fashion can help avoid lawsuits.
Medical records contain the personal health information of patients. Whether in written or electronic form, records are central to patient care and safety. Providers communicate within a healthcare system using a patient’s medical record. The record offsets the fallibility of memory and is permanent, so subsequent readers can see what took place. The medical record is often at the core of a lawsuit and is the first thing a plaintiff’s attorney will request at the start of litigation. Poor documentation will often trigger an aggressive claim pursuit.
What Does Good Documentation Include?
Good documentation includes fully describing the patient’s medical history, physical findings, your diagnosis, the treatment plan, and care rendered. It is especially important to document the advice given to the patient, including clear follow-up plans.
TIP: Four Key Principles of Documentation
✓ Always document your thought process. For example, note in the record why surgery is or is not indicated for a patient presenting with abdominal pain. The thought processes, history, examination, and plan serve as powerful evidence of a thoughtful and caring physician.
✓ Always document your final advice. A final statement of “RTC PRN” is only right when the illness is resolved.
✓ Legibility is less of an issue than in days past given the introduction of electronic health records, but we occasionally still see handwritten notes. Make sure your writing is readable.
✓ Beware of “cut and paste.” With electronic health records, we now see notes that are added, and either not read or inappropriately updated.
The Joint Commission has mandated that a time-out should be conducted in the OR before a procedure. It should involve the entire operative team, use active communication, and be documented through the use of a surgical checklist. It should include the patient identity, the side and site, and the procedure to be done. Hospitals may create processes outside of the surgical time-out to establish a standardized protocol for patient safety.
We were not doing cookbook medicine but we were guaranteeing implementation of best practices. We did not want to reinvent the wheel when we were tired or hurried. As a group, we agreed on preoperative antibiotics, DVT prophylaxis, and other guidelines that the Academy had recommended. This actually made handoffs easier, and the physician on-call didn’t have to guess what the treating physician wanted. —Ted J. Clarke, MD, AAOS position statement
It’s important to note: Processes and systems need to be in place to assist with reconciling differences in staff responses during the time-out. Time-outs are a valuable time to build good team communication. This includes knowing everyone’s name, asking team members to speak up if they see opportunities to avoid problems, using readbacks of requests throughout, and respecting and valuing the input of others. Time-outs are mandatory, so embrace them and use them to improve patient safety. Checklists serve as an assurance that best practices are being followed.
In 2009, an article in the New England Journal of Medicine unveiled the development and implementation of a surgical checklist, which was demonstrated to reduce morbidity and mortality in a variety of healthcare settings, including in the United States.23 Since then, the use of this process in the setting of a perioperative briefing has been widely adopted and is considered standard practice in ORs. The results, however, have not been uniformly dramatic, and barriers have been identified that hinder the success of this practice. A study published in the British Medical Journal outlined some of these barriers.24
PITFALL: Barriers to Success of Surgical Checklists
✓ Duplication of items within existing checklists
✓ Poor communication between surgeon and anesthetist
✓ Too much time spent completing the checklist for no perceived benefit
✓ A lack of understanding and timing of item checks
✓ Unaccounted risks
✓ A time-honored hierarchy
Some barriers can be predicted, such as poor interchanges between the surgeon and anesthesiologist, ambiguity regarding the checklist items, lack of commitment reflected in gaming the system (ie, checking off unchecked items at the end of the day) and poorly defined roles and responsibilities in performing these steps. This article also demonstrated the need for local development of such checklists, as providers felt that there was duplication with existing processes, and items on the checklist did not make sense or were excessively time-consuming.
How Does Change Happen in Healthcare Systems?
Three conditions must be present for any change in a system of care to be successful: (1) recognition of the fact that medical care is complex and no one provider can remember and be responsible for all processes; (2) good teamwork and communication is required for development of the new process; and (3) all members must be committed to the success of the project—especially at the leadership level.
What Are Best Practices Associated With Checklists?
Gawande has developed a “Checklist for Checklists” to address these issues.25 It recognizes that there are local factors unique to each environment, which make the instillation of a generic template unlikely to succeed. Each checklist must therefore be developed and implemented by that institution with input from those who will be responsible for its implementation.
COPIC believes the obstacles associated with checklists can be overcome if the checklist for your institution is developed proactively, as suggested by Gawande. It should be a dynamic process, being analyzed and changed appropriately by committed and enabled team members.
What Are Handoffs and Why Are They Important to Consider in Avoiding Litigation?
A handoff occurs whenever there is a transfer of care among providers. These may occur all day long in your office between you and your medical assistant. Shift work as a surgeon involves regular handoffs to one’s partners. When a consult is requested or completed, a handoff occurs. And of course, handoffs occur throughout the hospital setting. Handoffs are inherently risky and should be done with care and attention. In fact, the biggest liability risk for a hospitalist originates from faulty handoffs. Pay attention to your handoffs and consider a checklist approach where appropriate.
System errors are often the source of malpractice claims. Consider this example:
The story: A breast surgeon sees a 46-year-old female patient. The patient had felt a lump and saw her primary care provider. A mammogram was ordered and showed dense breast and no apparent lesion. The patient was referred to a breast surgeon. The surgeon does not appreciate the mass and writes that the patient should follow up in 2 months, without indicating whom the patient should follow up with. The patient does not return. She presented 1 year later with breast cancer.
In Mark Graber’s 2005 landmark study, 100 cases of diagnostic errors in hospital settings were examined. He identified 548 different system-related or cognitive factors (5.9 per case). System-related factors contributed to the diagnostic error in 65% of the cases and cognitive factors in 74%. The most common system-related factors involved problems with policies and procedures, inefficient processes, teamwork, and communication. His conclusion was, “Diagnostic error is commonly multifactorial in origin, typically involving both system-related and cognitive factors.” Two different studies by Hardeep Singh (2009, 2010) about test follow-up found that 7% of significant lab abnormalities and 8% of significant imaging abnormalities lacked timely follow-up.26
Why Do These Errors Happen?
Of the 2 major error types—cognitive and systems—the errors identified in the aforementioned study were the systems type. A significant test result was not followed up on the patient. From a practice perspective, this office did not have a good system to track when a test was pending and get that result to the patient. A tickler file should have been mandatory. This error does not represent a deficit in knowledge. We are all responsible in tracking the many tests that we do. This could be accomplished using an old-style accordion folder with important pending tests and reminder notices (ie, follow-up colonoscopies and such). Or the system could be part of the electronic health record.
What Role Do Patients Play in Patient Safety?
Encourage your patients that “no news is not good news,” and ask them to follow up if they haven’t received results from an important test. Although many practices now use web-based “patient portals” that allow patients access to their medical records, it is still incumbent on the provider to initiate follow-up for a significant abnormal finding.
Are There Guidelines for Communicating a Significant Test Result?
The American College of Radiology has led the way in its 2014 practice parameters.27 They state that the written report is no longer the definitive means of communicating results. It is still necessary to produce a written report, but a more direct means of communication is required when there are (1) findings that need immediate intervention, (2) report discrepancies, or (3) findings that may significantly affect the patient’s health. Using verbal communication to communicate results has become the standard for radiologists. Remember, when a test is communicated verbally, the communication must be documented in the medical record. All specialists who serve as consultants should consider following the guidelines that suggest a second form of direct, usually verbal, communication.
Is There Anything Else to Consider When Trying to Prevent System Errors?
Support personnel are part of the medical system, and facilitating open communication with the office staff, medical assistants, nursing staff, and others is critical to a safe practice environment. They have a different vantage point and often, more time with the patient; therefore, they may hear something in the patient’s story you may miss, or they may notice something worrisome. You need to create an open environment, be approachable, and let your support team be your eyes and ears in patient care. We all need to value and welcome the input of others.