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HOW TO AVOID MEDICAL MALPRACTICE RISK

Avoidance is a well-recognized risk management strategy. It means consciously forgoing involvement in an activity because of the potential liability consequences. For example, some observers note that there are now very few companies that manufacture football helmets, single-engine airplanes or intra-uterine devices. In all three examples, the costs of product liability are extremely high.

Either because of the costs of settling liability claims, paying jury awards or spending money on legal fees to defend suits, some companies decide that engaging in a certain activity is simply more of a headache than it was worth. As a result, firms have withdrawn from the market of making such products and have migrated to other product lines. This is an example of avoidance in the product liability realm.

Avoidance is a draconian risk management technique. Normally, individuals or organizations use avoidance only as a last-ditch measure after other tactics – insurance, loss control, retention – have failed to adequately minimize risks. While avoidance has clear applicability to product liability, it has some relevance to physician risk management as well. Let’s look at some ways that avoidance has some utility to medical malpractice risk management.

Tom Bower of the law firm of Shaub, Ahmuty, Citrin & Spratt, LLP, New York, New York observes,

Avoidance can apply in selecting treatment methods. Sometimes avoidance may apply to sidestepping medical procedures that are more high-risk in favor of those which seem less prone to mishaps. It all depends on what one’s definition of “avoidance” is. (No, I’m not running for elective office.) For example, when obstetricians started getting hit with enormous verdicts for having delivered infants vaginally — as opposed to by C-section — they started doing a lot more C-sections in situations in which they would not have done them before. That is a sort of risk avoidance.

Another example might be a doctor deciding to stop performing angioplasty procedures and confine herself to angiography procedures instead, due to the respective hazards involved.

Any doctor who decides not to perform a surgical technique or procedure that is fraught with risks or complications is practicing avoidance. One would hope that no doctor would ever undertake to perform a procedure that is out of his or her depth. On the other hand, sometimes this is the only way to gain experience.

Every medical procedure – from drawing blood to performing heart bypass surgery – is brand new to the physician doing one for the first time. One of the mantras that medical students hear is, “Watch one – do one – teach one.” Often, “OJT” is the only way to build a reservoir of experience in a certain procedure and technique.

Avoidance Applies in Selecting Medical Specialties.  Some doctors may choose their specialties, weighing in part the risks posed by particular fields. Some medical specialties experience higher amounts of lawsuits and recoveries than others. Some doctors may forgo entering specialties fraught with risks, complications and potential patient claims. Examples here might be obstetrics or neurosurgery. Other physicians may gravitate toward what are seen as “safer” specialties such as radiology or pathology, which experience much fewer claims.

Ironically, avoidance can occasionally prompt doctors to add medical procedures in order to be thorough and avert second-guessing and liability claims. The same “avoidance” characterization could be applied to doctors who practice defensive medicine by ordering batteries of very expensive tests, just so no lawyer will ever be able to claim they overlooked something.

Avoidance Applies in Selecting Geographic Location of Medical Practice.  Risk avoidance may have a geographic component. For example, some doctors have tried to avoid litigation risk by moving from metropolitan to rural areas, or from one state to another, or by leaving private practice and going into research or academic medicine. Doctors perceive that large metropolitan areas are much more prone to have a high degree of litigation, claim-consciousness, large jury awards, lawyers and medical malpractice dangers.

Big cities often mean big jury awards and personal injury settlements. In metropolitan areas, there tend to be higher per person concentrations of lawyers. By contrast, less urbanized and rural areas are perceived as being less prone to these characteristics. Doctors who seek out geographic areas for practice due to liability factors are (perhaps unwittingly) demonstrating the use of avoidance as a risk management tool.

Doctors can practice avoidance in various ways:

They can avoid practicing certain types of medicine or specialties which are considered higher risk. For example, some doctors who were once OB/GYN’s have dropped the obstetrics aspect of their practice and instead focus on gynecology. This is not only due to the fact that they have fewer calls coming in at the middle of the night to attend to births. It is also due to the fact that obstetrics – with its “bad baby” complications – generates many more medical malpractice claims (and serious cases) than does gynecology.

In another instance, a physician might eschew high-risk neurosurgery in lieu of neurology, since the consequences of a mishap may be diminished with a less invasive specialty.

In extreme cases, physicians can also practice avoidance by avoiding performing procedures which are more associated with complications and potential litigation. For instance, doctors may decide that performing angioplasty or delicate eye surgery are procedures which they will forgo due to liability concerns flowing from complications.

Doctors can even can retire from the practice of medicine and go into another line of work which presents a lower risk profile. Increasing numbers of physicians are going back to school and enrolling in evening MBA programs to attain advanced business degrees. In fact, some physicians have chucked the whole practice of medicine. Not all of this is due to liability headaches. Some is due to quality of life concerns and the growth of managed care greatly circumscribing areas of physician autonomy. Some physicians enter healthcare administration or into consulting, where there is no hands-on patient care.

Physicians can also practice avoidance by avoiding treating certain types of patients. These might include:

  • patients who have a claims history of pursuing insurance or medical malpractice cases;
  • patients who seem argumentative, defensive or quick to take offense;
  • patients who seem to be constantly “building a record” or case for suit;
  • patients who seem to have unrealistic expectations regarding cure or the results of medical procedures;
  • patients who often drop the names of their attorney(s);
  • patients who seem overly preoccupied with the doctor’s own claims history.

None of this is to imply that such patients are bad patients, or that such patients are in any way doing anything wrong. Rather, these may serve as “red flags” for physicians who feel that certain patients represent “a lawsuit waiting to happen.” That having been said, doctors cannot simply dump or drop such patients instantly. To do so may open them to a claim for patient abandonment.

There are many ways in which avoidance can be used in healthcare. One prominent example is that of OB/GYNS going to GYN only. This can be expanded to many approaches, some of which physicians self-inflict (for example, not accepting certain types of patients, not doing certain types of surgery, not accepting certain “jobs” within a hospital or their corporation, etc.).

Then there is the “avoidance” that is sometimes chosen for them by others – such as credentials committees (to not extend, drop, or withdraw a credential to do certain procedures), Surgery Suite Committees (which might mandate monitors, second assistants, starting times for surgery for monitoring, etc.).

In risk management positions and committees, many physicians have taken place in all of the above decisions. They may have had “heart to heart” discussions with physicians to review outcomes, behavior, etc., and helped to make “avoidance” decisions with or for them. Those assessing physician risk management techniques must not omit avoidance as a risk management liability control in healthcare or in the specifics of physician risk management.

According to Bill Quinlan, Director of Risk Management for Forum Health in Youngstown, OH,

In institutional settings, avoidance is likely not used as extensively. Generally, hospitals want to be full-service, though certainly there are specialty hospitals that avoid the risk of emergency rooms or obstetrics etc. General hospitals don’t have that luxury. Actually many hospitals have the opposite problem: administrators want to increase risk by recruiting and maintaining high-risk specialists. High liability risk usually translates into high return on investment, e.g. open hearts, obstetrics etc. All are money-makers for hospitals. Individual physicians may avoid some risk, but community based docs can’t be as picky as a lot of people may think.

According to Dr. Michael Kennedy, FACS,

Physicians must also apply to hospitals for privileges and procedures they are permitted to perform. In some facilities, this has been a rubber-stamp. In others, it is a lengthy application process. Depending on the political scene at the facility and their education and experience they may or may not be granted permission to perform certain procedures. Quality Assurance departments conduct studies and a physician could lose privileges if his or her performance does not meet the standard. This could be considered an attempt at an avoidance of a risk. A hospital quality assurance person might be helpful in providing a copy of policies and procedures that address this.

There have been anecdotal reports about doctors giving up obstetric practice because of liability costs. There was a well-known case in Illinois a few years ago where a doctor moved to Indiana to reduce his premiums and obstetrics was somehow involved.

There has been some speculation about cardiac surgeons turning down risky cases, not because of lawsuits but because of state investigation of mortality rates. I don’t know if that has borne out on any real study or was mostly talk. New York started rating surgeons on mortality and publishing the results. The argument was that turning down poor risk cases would keep mortality rates low and might be better for business.

Some physicians have taken the step of practicing avoidance by leaving the practice of medicine altogether. Some go into public health or teaching, which has fewer liability headaches. Some leave medicine altogether, becoming day-traders in stocks or Amway distributors. An increasing number of physicians are seriously re-evaluating the pressures which come with being a physician. One recent study of 4500 physicians, for example, found that 31% would pick a different profession if given a chance to decide all over again. Liability concerns, managed care pressures and other stresses are tempting some practitioners to view avoidance in the context of their career plan. For others, it is a way to preserve e their sanity and peace of mind. (“The Silent Anguish of the Healers,” Dr. Zeev Neuwirth, Newsweek, 9/13/99, p. 79)

As a risk management tool, avoidance has limited applicability and viability for physicians.

The above was excerpted from Quinley, KM Bulletproofing Your Medical Practice: Risk Management Techniques for Physicians that Work (SEAK 2000).  Please click here to download a free complete copy of Bulletproofing Your Medical Practice: Risk Management Techniques for Physicians that Work.