Back to Table of Contents | February 2011

Pulse

Due Process

Could better use of evidence-based guidelines result in fewer malpractice cases?

By Jeanne Mettner

Although evidence-based guidelines can serve as a reliable compass for clinical decision-making, physicians have sometimes regarded them as obstacles to professional autonomy. Now, some physicians suggest use of accepted guidelines might benefit them as well as their patients.

In May of 2009, the American Medical Association asserted that use of evidence-based guidelines could provide a “safe harbor” for physicians, protecting them from liability in medical malpractice claims. In September of that year, President Barack Obama authorized $25 million for projects demonstrating that that indeed was the case. The grants, which the Agency for Healthcare Research and Quality (AHRQ) awarded last summer, went to seven demonstration projects, two of which are in this region.

More Talk, Less Risk
Stan Davis, M.D., an obstetrician at Fairview Health Services, is leading one of the projects. Davis and his group received $2.9 million to look at whether the use of bundled evidence-based guidelines and training to improve communication among providers and patients are associated with a reduction in preventable perinatal harm and in the number of malpractice claims.

Davis’s group, which, is part of a national collaborative to improve patient safety around childbirth, will collect and analyze data from 16 hospitals in 12 states. To be in compliance with a bundle, providers in those hospitals must document in the patient’s medical record that they took all the required steps prior to an intervention. For example, to be considered in compliance with the elective labor induction bundle, the provider must have been certain that gestational age was equal to 39 weeks or more, that fetal status was normal, that the mother had had a pelvic exam before receiving oxytocin, and that hyperstimulation of the uterus was recognized and managed.

Davis and his colleagues will also looking at whether training using the AHRQ’s TeamSTEPPS curriculum, which is designed to improve communication among health care professionals and patients, improves outcomes.

Data from the participating hospitals will be compared with that from eight hospitals that are not participating in the two interventions. Davis believes both efforts will result in improved care and reduced risk. “It seems a no-brainer that when you are providing better care, you will reduce your medical malpractice claims,” he says.

Gentle Reminders
Another AHRQ grant recipient is Wendell Hoffman, M.D., an infectious disease specialist and patient safety officer with Sanford Health in Sioux Falls, South Dakota. Hoffman and his colleagues at Sanford have been awarded $294,000 to explore the feasibility of using unsolicited patient complaints to determine which physicians are most at risk for medical liability.

The grant has two arms. The first will help determine whether Sanford should implement a patient reporting system similar to one developed at Vanderbilt University. The second arm will explore whether there is a correlation between patient complaints and the context of patient care. “The national call is to involve patients in their own care,” Hoffman says. “What better way to really listen to them, learn from them, and act on their behalf?”

In the Vanderbilt model, “messenger physicians” confidentially alert physicians who are the subject of patient complaints and, therefore, may be at risk for being sued for medical malpractice. The idea is that informing physicians of complaints against them gives them an opportunity to learn from the experience and to change their practice style.

Hoffman is currently training physicians to be messengers. “Studies at Vanderbilt have found that the messenger physician’s conversation with the at-risk physician leads to a 70 percent self-correction within a 12-month period,” he notes. “Many of the issues that lead to higher risk are not quality-related in the traditional sense but instead are factors that revolve around patient-physician communication—things like not listening, not treating patients like human beings.”

If Sanford decides to institute a patient advocacy reporting system, officials will track patient complaint data submitted to its 30 hospitals, including those in Minnesota, over four years. They also will enlist messenger physicians to work with physicians who may be at risk and monitor the number of malpractice claims filed as well as metrics on a hospital and clinic safety survey.

The Legal Realities
Whether such initiatives prevent or reduce malpractice claims remains to be seen. “The key connection between quality standards and professional liability claims is the patient outcome; if following quality standards, in fact, reduces adverse outcomes, liability claims filed will likely also decline,” says Libby Lincoln, J.D., senior vice president and general counsel at MMIC Group, a Minneapolis medical professional liability insurance provider. Lincoln also notes that failure to follow quality standards does not necessarily indicate physician negligence. “In a courtroom, a physician will have to prove that the care rendered was appropriate for a particular patient; individual treatment may require diverging from the usual standards,” she says.

Mark Whitmore, J.D., chief operating officer and managing partner with Bassford Remele, believes the question of whether evidence-based medicine can reduce malpractice claims needs to be framed differently. He says the question should really be, Does evidence-based medicine make medical decision making easier to defend once a claim exists? “I think the answer is, yes it does, particularly if that medical decision-making process is documented in the patient’s chart.” But Whitmore cautions that doctors will have to do more than follow guidelines. “They are treating human beings and every patient is different,” he says. “In the end, it’s their professional judgment that is most important.”

Davis, too, acknowledges that following an algorithm alone won’t provide physicians with immunity from lawsuits. He says physicians need to maintain a paper trail that explains the chosen care process and communicate with the patient about their clinical decisions. “It’s always thought that if you follow the guidelines, you will be better off in terms of not being sued or having a better outcome when you get sued,” he says. “But often when a malpractice claim is filed, many physicians are unable to submit evidence that documents their thinking process for making particular clinical decisions.”

What Matters Most
Both Davis and Hoffman say that using and documenting the use of evidence-based guidelines is only part of what will keep medical liability claims, and the costs associated with defending them, in check. “What matters the most to patients is when physicians sit down and actually converse with them, show concern and empathy toward them,” Hoffman says. “To know that another human being cares for them is still the most important thing to patients. If a physician is doing their best to demonstrate that connection, then patients are more likely to be forgiving—and less likely to sue.” ■