Protection Richard P.
Against Malpractice Litigation
Bergen costs are based defenses of exin the high-risk cate-
Malpractice insurance loss experience and
on
penses. Physicians gory are in that position because, as a group, they have a high frequency of claims, a high average cost, or both. True, "defensive medicine" is the best way to minimize the risks. This does not mean ordering unnecessary tests or refusal of essential treatment. Rather, it is the habit of exercising extra care and foresight to avoid medical hazards and to apply prompt remedial measures when they occur. It means being aware of the patient's personality and needs. It means taking time to talk to the patient about proposed procedures and their risks. This kind of "defensive medicine" offers the best hope for reducing the frequency and cost of claims that result in the present critical malpractice problems.
aware, I am sure, that physicians in your specialty are
You the highest risk-rating classifica¬ are
in tion for medical liability insurance. This means that you pay higher in¬ surance premiums than most other
physicians.
It also means that the liability losses and expenses for your specialty are found to be higher than those of
for publication Aug 21, 1974. Read before the Tenth Annual Meeting of the American Academy of Facial Plastic and Reconstructive Surgery, Inc., Palm Beach, Fla,
Accepted
April
1974.
From the Office of the General Counsel, American Medical Association, 535 N Dearborn St, Chicago, IL 60610 (Mr. Bergen).
in the lower risk-rating classifications. For insurance pur¬ poses, the important factor is the total amount of money paid out on claims. The cost factors are: (1) awards or settlements paid to pa¬ tients; (2) legal fees for defense; (3) fees for defense expert witnesses; (4) expenses of investigation; and (5) general administrative expenses. Even claims that are unsuccessful can cost a lot of money. A high risk-rating means that the physicians in that class are gener¬ ating claims that produce a high total cost. Either the average cost of claims is high, or the frequency of claims is high, or both the cost and frequency are high. Since insurance companies are reluctant to give out that kind of information, I do not know how these factors affect the specialty of oto¬
physicians
laryngology.
For the purpose of giving you ad¬ vice on how to defend yourself, I do not think that the cost breakdown is too important. There is, of course, a rough correlation between the cost of liability insurance and the legal risks confronting the practitioner. The highest rates are those paid by the surgical specialties, like yours. Some¬ what lower are the general surgeons and the obstetricians and gynecolo¬ gists; lower still are the internists and others who do little, if any, sur¬ gery. At the lowest level of premiums for physicians are the general practi¬ tioners who do no surgery at all. Lower premiums still are paid by
Downloaded From: http://archotol.jamanetwork.com/ by a Oakland University User on 06/15/2015
chiropractors who perform no surgery and prescribe no drugs. Lastly, it is
my best information that Christian
Science Practitioners still find no need to carry professional liability insurance. This catalog of risks suggests one way I might instruct you on how to
defend yourselves against malprac¬
tice litigation. (1) Do not perform any surgery. (2) Do not prescribe or ad¬ minister any drugs. (3) Do not touch your patient or perform any manipu¬ lations. (4) Pray a lot. If you were to follow that advice, you might not be able to provide much benefit to your patients, but you should reduce your insurance pre¬ miums. I cannot really recommend those drastic measures, however. It would be a waste of your medical edu¬ cation and training. Instead, I recom¬ mend "defensive medicine." The term "defensive medicine" is frequently used in a context that makes it appear to be a synonym for "sin." It is claimed that many physi¬ cians order extra and unnecessary tests solely because of fear of mal¬ practice claims. That is said to be "positive defensive medicine." It is al¬
charged that some physicians re¬ perform essential but hazard¬ ous procedures solely because of that fear. This is said to be "negative de¬
so
fuse to
fensive medicine." If either of those practices occur, I state categorically that they are of no benefit for the defense of physicians. True "defensive medicine" is like
"defensive driving." It is an estab¬ lished pattern of conduct in which one foresees probable hazards and auto¬ matically takes appropriate action to reduce the risk of an unfortunate oc¬ currence.
1. One must know and understand what the hazards are, either in driv¬ ing or in practicing medicine. I am not a physician and I will not attempt to instruct you as to what the hazards are for patients in your medical prac¬ tice. I assume that by the time you completed your medical education and specialty training, you were as well informed as possible about these hazards. If you have forgotten about them or have become complacent about them, perhaps you should have a refresher course. Perhaps your academy should identify and keep re¬ minding you of those serious hazards for patients that most frequently oc¬ cur in the practice of your specialty. 2. One must be constantly alert to detect early signs that hazards are likely to arise. If one is distracted, or too busy, or attention is diverted, the early signs may be missed. It is neces¬ sary to develop the habit of being able to pick up the earliest signs of danger. Eventually, this becomes an automatic and established pattern of awareness.
3. One must always be ready to take appropriate remedial action without hesitation as soon as the haz¬ ard is detected. Again, I will not pre¬ sume to instruct you on appropriate remedial actions in the medical field. I assume that these are taught in medi¬ cal school and in your specialty train¬ ing. If there is a need for guidelines to assist you in determining what are appropriate remedial measures for particular hazards that arise in your specialty practice, I think your acad¬ emy is well qualified to develop those guidelines. If the appropriate reme¬ dies are not already known and gen¬ erally recognized in the field of your
specialty, a group of leading experts in the procedure that gives rise to the
hazard could get together under the auspices of the American Academy of Facial Plastic and Reconstructive Surgery to develop them. By this time, it may have appeared to you that I am throwing the burden
of "defensive medicine" back to the physician. Frankly, I am. If you ex¬ pected a secret formula that will give you immunity to malpractice claims, I have to inform you that such formula does not exist. But, I suppose you are expecting at least some legal advice. It is true that malpractice claims and litigation are a part of the field of medical law. This is the field in which I am an expert. I could spend more time than you have allocated to me today explaining the details of medi¬ cal malpractice law. I could probably tell you more than you really want to know about the law, including the na¬ ture of the physician-patient relation¬ ship, the legal duty of the physician, unauthorized procedures, "informed consent," statute of limitations, jury trials, evidence, res ipsa loquitur, ap¬ pellate procedure, and the like. I am sure you have heard presentations on these subjects, perhaps by better speakers than I am. I am convinced, however, that even if I could tell you all I know about this field of medical law, it would not really help to protect you from mal¬ practice claims. Even if you went to law school and obtained a law degree, as a good many physicians have, you would still be just as much exposed to the risk of malpractice claims as you are today, unless you were to stop practicing medicine and start practic¬ ing law. There are, however, a few things that I have learned in my study of this field of medical law that may be helpful to you in practicing "defen¬ sive medicine." These suggestions are not really in either the field of law or the field of medicine. For lack of a better term, I will say that they are in the field of human relations. One thing that has to be recognized clearly is that the person who initi¬ ates a malpractice claim is the pa¬ tient, or if he has died, a member of the patient's family. This action may be suggested or encouraged by other
physicians, by nurses, by friends, by lawyers, or anyone else, but the ac¬
tual decision to make the claim is made by the patient or a member of his family. Usually the decision is made before a lawyer is consulted. When the lawyer is consulted, he ei-
Downloaded From: http://archotol.jamanetwork.com/ by a Oakland University User on 06/15/2015
ther agrees to represent the claimant, more often than you realize, dis¬ courages the claim because it is not financially worth while for him or for the claimant. There are three main reasons why a patient decides to make a malpractice claim against his physician. (1) He has suffered a real or imagined injury in the course of his medical care, or is dissatisfied with the results of that care. (2) He is angry or disgruntled for some real or imagined reason aris¬ ing out of his personal relationship with the physician. (3) He is in serious financial need, with no source to meet that need that appears more likely than the physician. Except in the most rare and un¬ usual cases, a claim will not be sup¬ ported by a lawyer unless the injury or unsatisfactory result is real rather than imaginary and unless it is sub¬ stantial or dramatic. One of the first things the lawyer has to do, before deciding to accept the client, is to es¬ timate how many dollars the claim is likely to be worth if it is successful. If the maximum worth is low, he is not likely to be interested, especially on a percentage-fee basis. Lawyers in this field become quite expert in judging the value of in¬ juries, as they are likely to be as¬ sessed by a jury. Since this is essen¬ tially a matter of human relations, however, physicians should also be able to make this evaluation with rea¬ sonable accuracy. A patient who is totally and per¬ manently disabled, so as to need con¬ stant and intensive care for the rest of his life, is apt to produce the high¬ est dollar award. The younger he is and the higher his earning capacity, the more the award is apt to be. Loss of an arm, leg, or eye are apt to pro¬ duce high awards. Death of the pa¬ tient, oddly enough, is apt to produce a somewhat smaller award, unless a high-earning capacity and need for or,
family support
are
an
important
factor. The award value of the loss of sex¬ ual function or capacity is apt to be high because of strong emotional fac¬ tors. The value of various kinds of functional impairment or disfiguring scars is apt to be closely related to the
occupation and economic status of the patient. It is not really possible or necessary
develop a schedule of values for the entire spectrum of injuries that may occur to a patient. It is important, however, that the physician be aware of these variable values and the fac¬ tors that affect them. Especially, he should become informed about the background, interests, and ambitions of his patients, which may affect the value of any injury that the patient suffers. It is so obvious that I hesitate to say it, but an important factor in "de¬ fensive medicine" is better communi¬ cation between physician and patient. Communication may be both verbal and nonverbal. The physician who is aware of his patient's personality, what he thinks and expects in the re¬ lationship, and what his reactions are, may be able to defuse latent anger or irritation before it leads to a malprac¬ tice claim. I am sure that most of you know more about psychology and psychia¬ try than I do. At least you have had some exposure to them in your train¬ ing, even though this is not your spe¬ cialty field. If you give it your atten¬ tion, I am sure that you can find ways to make the physician-patient rela¬ tionship more harmonious psychologi¬ to
cally.
I do not know if anyone has a re¬ liable formula for identifying the "claim-prone" patient or the "claimsusceptible" physician. Some have at¬ tempted to develop such formulas. Even if it were possible to identify patients who are more likely to sue, you could not refuse to treat all of
them. The most you could do would be more care or try to stimu¬ late a more friendly response. I sug¬ gest that you do this for all patients. Communication is also involved in the matter of "informed consent." I am not going to try to explain all of the legal variations of that subject. From the viewpoint of "defensive medicine," the most important factor is for the physician to spend some time talking to the patient. Explain to him the proposed procedure so that you are sure he understands it. Tell him about the most serious risks. En¬ courage him to ask questions and an¬ swer them frankly. Do not try to "oversell" the procedure or to frighten him into rejecting it. I have not discussed reported court decisions involving plastic surgery and I do not intend to. There have not been very many of them and they are not of unusual importance. Since you are in a high-risk category, I assume that there must be many claims that are settled out of court because it was deemed dangerous to go to trial. Breast augmentation has given rise to a number of claims. It seems logi¬ cal that procedures done for cosmetic reasons alone are likely to produce a bigger risk of dissatisfaction than are those performed to repair an injury or correct a deformity that existed prior to the surgery. I understand that it is a common practice to take before and after pho¬ tographs in your work. This seems to me to be a good procedure of "defen¬ sive medicine." "Defensive medicine" indicates that you should order whatever tests are necessary for the welfare of your to exercise
Downloaded From: http://archotol.jamanetwork.com/ by a Oakland University User on 06/15/2015
but not extra tests that are value to him. It indicates that you recommend whatever procedures are best for the patient, provided that the expected benefits outweigh the probable risks. It indicated that you perform yourself those procedures for which you are well qualified and refer to others, who are better qualified, those procedures that are beyond your established competence. If you practice the kind of "defen¬ sive medicine" I have outlined today, I believe you will have done all you can to protect yourself from malprac¬ tice litigation. There is no guaran¬ tee of immunity. Insurance premiums that are based on the losses, not of the individual, but of the group, will probably continue to go up. But good "defensive medicine" should reduce your personal risks. There is a lot that is wrong with the current malpractice conditions that needs to be corrected. You, as an individual physician, cannot do much about that. Your medical societies can. The latest effort in this direction is the Medical Liability Commission. It is a new organization whose mem¬ bers include the major national medi¬ cal organizations. Its one purpose is to search for answers to the malprac¬ tice problems on behalf of all of the medical profession. Your best way to do something about the critical mal¬ practice problems is to apply "defen¬ sive medicine" in your own practice and to give your support to the Medi¬ cal Liability Commission, together with your local, state, and national medical organizations in their search for the answers to the problems.
patient, of
no
Against Malpractice Litigation
Bergen costs are based defenses of exin the high-risk cate-
Malpractice insurance loss experience and
on
penses. Physicians gory are in that position because, as a group, they have a high frequency of claims, a high average cost, or both. True, "defensive medicine" is the best way to minimize the risks. This does not mean ordering unnecessary tests or refusal of essential treatment. Rather, it is the habit of exercising extra care and foresight to avoid medical hazards and to apply prompt remedial measures when they occur. It means being aware of the patient's personality and needs. It means taking time to talk to the patient about proposed procedures and their risks. This kind of "defensive medicine" offers the best hope for reducing the frequency and cost of claims that result in the present critical malpractice problems.
aware, I am sure, that physicians in your specialty are
You the highest risk-rating classifica¬ are
in tion for medical liability insurance. This means that you pay higher in¬ surance premiums than most other
physicians.
It also means that the liability losses and expenses for your specialty are found to be higher than those of
for publication Aug 21, 1974. Read before the Tenth Annual Meeting of the American Academy of Facial Plastic and Reconstructive Surgery, Inc., Palm Beach, Fla,
Accepted
April
1974.
From the Office of the General Counsel, American Medical Association, 535 N Dearborn St, Chicago, IL 60610 (Mr. Bergen).
in the lower risk-rating classifications. For insurance pur¬ poses, the important factor is the total amount of money paid out on claims. The cost factors are: (1) awards or settlements paid to pa¬ tients; (2) legal fees for defense; (3) fees for defense expert witnesses; (4) expenses of investigation; and (5) general administrative expenses. Even claims that are unsuccessful can cost a lot of money. A high risk-rating means that the physicians in that class are gener¬ ating claims that produce a high total cost. Either the average cost of claims is high, or the frequency of claims is high, or both the cost and frequency are high. Since insurance companies are reluctant to give out that kind of information, I do not know how these factors affect the specialty of oto¬
physicians
laryngology.
For the purpose of giving you ad¬ vice on how to defend yourself, I do not think that the cost breakdown is too important. There is, of course, a rough correlation between the cost of liability insurance and the legal risks confronting the practitioner. The highest rates are those paid by the surgical specialties, like yours. Some¬ what lower are the general surgeons and the obstetricians and gynecolo¬ gists; lower still are the internists and others who do little, if any, sur¬ gery. At the lowest level of premiums for physicians are the general practi¬ tioners who do no surgery at all. Lower premiums still are paid by
Downloaded From: http://archotol.jamanetwork.com/ by a Oakland University User on 06/15/2015
chiropractors who perform no surgery and prescribe no drugs. Lastly, it is
my best information that Christian
Science Practitioners still find no need to carry professional liability insurance. This catalog of risks suggests one way I might instruct you on how to
defend yourselves against malprac¬
tice litigation. (1) Do not perform any surgery. (2) Do not prescribe or ad¬ minister any drugs. (3) Do not touch your patient or perform any manipu¬ lations. (4) Pray a lot. If you were to follow that advice, you might not be able to provide much benefit to your patients, but you should reduce your insurance pre¬ miums. I cannot really recommend those drastic measures, however. It would be a waste of your medical edu¬ cation and training. Instead, I recom¬ mend "defensive medicine." The term "defensive medicine" is frequently used in a context that makes it appear to be a synonym for "sin." It is claimed that many physi¬ cians order extra and unnecessary tests solely because of fear of mal¬ practice claims. That is said to be "positive defensive medicine." It is al¬
charged that some physicians re¬ perform essential but hazard¬ ous procedures solely because of that fear. This is said to be "negative de¬
so
fuse to
fensive medicine." If either of those practices occur, I state categorically that they are of no benefit for the defense of physicians. True "defensive medicine" is like
"defensive driving." It is an estab¬ lished pattern of conduct in which one foresees probable hazards and auto¬ matically takes appropriate action to reduce the risk of an unfortunate oc¬ currence.
1. One must know and understand what the hazards are, either in driv¬ ing or in practicing medicine. I am not a physician and I will not attempt to instruct you as to what the hazards are for patients in your medical prac¬ tice. I assume that by the time you completed your medical education and specialty training, you were as well informed as possible about these hazards. If you have forgotten about them or have become complacent about them, perhaps you should have a refresher course. Perhaps your academy should identify and keep re¬ minding you of those serious hazards for patients that most frequently oc¬ cur in the practice of your specialty. 2. One must be constantly alert to detect early signs that hazards are likely to arise. If one is distracted, or too busy, or attention is diverted, the early signs may be missed. It is neces¬ sary to develop the habit of being able to pick up the earliest signs of danger. Eventually, this becomes an automatic and established pattern of awareness.
3. One must always be ready to take appropriate remedial action without hesitation as soon as the haz¬ ard is detected. Again, I will not pre¬ sume to instruct you on appropriate remedial actions in the medical field. I assume that these are taught in medi¬ cal school and in your specialty train¬ ing. If there is a need for guidelines to assist you in determining what are appropriate remedial measures for particular hazards that arise in your specialty practice, I think your acad¬ emy is well qualified to develop those guidelines. If the appropriate reme¬ dies are not already known and gen¬ erally recognized in the field of your
specialty, a group of leading experts in the procedure that gives rise to the
hazard could get together under the auspices of the American Academy of Facial Plastic and Reconstructive Surgery to develop them. By this time, it may have appeared to you that I am throwing the burden
of "defensive medicine" back to the physician. Frankly, I am. If you ex¬ pected a secret formula that will give you immunity to malpractice claims, I have to inform you that such formula does not exist. But, I suppose you are expecting at least some legal advice. It is true that malpractice claims and litigation are a part of the field of medical law. This is the field in which I am an expert. I could spend more time than you have allocated to me today explaining the details of medi¬ cal malpractice law. I could probably tell you more than you really want to know about the law, including the na¬ ture of the physician-patient relation¬ ship, the legal duty of the physician, unauthorized procedures, "informed consent," statute of limitations, jury trials, evidence, res ipsa loquitur, ap¬ pellate procedure, and the like. I am sure you have heard presentations on these subjects, perhaps by better speakers than I am. I am convinced, however, that even if I could tell you all I know about this field of medical law, it would not really help to protect you from mal¬ practice claims. Even if you went to law school and obtained a law degree, as a good many physicians have, you would still be just as much exposed to the risk of malpractice claims as you are today, unless you were to stop practicing medicine and start practic¬ ing law. There are, however, a few things that I have learned in my study of this field of medical law that may be helpful to you in practicing "defen¬ sive medicine." These suggestions are not really in either the field of law or the field of medicine. For lack of a better term, I will say that they are in the field of human relations. One thing that has to be recognized clearly is that the person who initi¬ ates a malpractice claim is the pa¬ tient, or if he has died, a member of the patient's family. This action may be suggested or encouraged by other
physicians, by nurses, by friends, by lawyers, or anyone else, but the ac¬
tual decision to make the claim is made by the patient or a member of his family. Usually the decision is made before a lawyer is consulted. When the lawyer is consulted, he ei-
Downloaded From: http://archotol.jamanetwork.com/ by a Oakland University User on 06/15/2015
ther agrees to represent the claimant, more often than you realize, dis¬ courages the claim because it is not financially worth while for him or for the claimant. There are three main reasons why a patient decides to make a malpractice claim against his physician. (1) He has suffered a real or imagined injury in the course of his medical care, or is dissatisfied with the results of that care. (2) He is angry or disgruntled for some real or imagined reason aris¬ ing out of his personal relationship with the physician. (3) He is in serious financial need, with no source to meet that need that appears more likely than the physician. Except in the most rare and un¬ usual cases, a claim will not be sup¬ ported by a lawyer unless the injury or unsatisfactory result is real rather than imaginary and unless it is sub¬ stantial or dramatic. One of the first things the lawyer has to do, before deciding to accept the client, is to es¬ timate how many dollars the claim is likely to be worth if it is successful. If the maximum worth is low, he is not likely to be interested, especially on a percentage-fee basis. Lawyers in this field become quite expert in judging the value of in¬ juries, as they are likely to be as¬ sessed by a jury. Since this is essen¬ tially a matter of human relations, however, physicians should also be able to make this evaluation with rea¬ sonable accuracy. A patient who is totally and per¬ manently disabled, so as to need con¬ stant and intensive care for the rest of his life, is apt to produce the high¬ est dollar award. The younger he is and the higher his earning capacity, the more the award is apt to be. Loss of an arm, leg, or eye are apt to pro¬ duce high awards. Death of the pa¬ tient, oddly enough, is apt to produce a somewhat smaller award, unless a high-earning capacity and need for or,
family support
are
an
important
factor. The award value of the loss of sex¬ ual function or capacity is apt to be high because of strong emotional fac¬ tors. The value of various kinds of functional impairment or disfiguring scars is apt to be closely related to the
occupation and economic status of the patient. It is not really possible or necessary
develop a schedule of values for the entire spectrum of injuries that may occur to a patient. It is important, however, that the physician be aware of these variable values and the fac¬ tors that affect them. Especially, he should become informed about the background, interests, and ambitions of his patients, which may affect the value of any injury that the patient suffers. It is so obvious that I hesitate to say it, but an important factor in "de¬ fensive medicine" is better communi¬ cation between physician and patient. Communication may be both verbal and nonverbal. The physician who is aware of his patient's personality, what he thinks and expects in the re¬ lationship, and what his reactions are, may be able to defuse latent anger or irritation before it leads to a malprac¬ tice claim. I am sure that most of you know more about psychology and psychia¬ try than I do. At least you have had some exposure to them in your train¬ ing, even though this is not your spe¬ cialty field. If you give it your atten¬ tion, I am sure that you can find ways to make the physician-patient rela¬ tionship more harmonious psychologi¬ to
cally.
I do not know if anyone has a re¬ liable formula for identifying the "claim-prone" patient or the "claimsusceptible" physician. Some have at¬ tempted to develop such formulas. Even if it were possible to identify patients who are more likely to sue, you could not refuse to treat all of
them. The most you could do would be more care or try to stimu¬ late a more friendly response. I sug¬ gest that you do this for all patients. Communication is also involved in the matter of "informed consent." I am not going to try to explain all of the legal variations of that subject. From the viewpoint of "defensive medicine," the most important factor is for the physician to spend some time talking to the patient. Explain to him the proposed procedure so that you are sure he understands it. Tell him about the most serious risks. En¬ courage him to ask questions and an¬ swer them frankly. Do not try to "oversell" the procedure or to frighten him into rejecting it. I have not discussed reported court decisions involving plastic surgery and I do not intend to. There have not been very many of them and they are not of unusual importance. Since you are in a high-risk category, I assume that there must be many claims that are settled out of court because it was deemed dangerous to go to trial. Breast augmentation has given rise to a number of claims. It seems logi¬ cal that procedures done for cosmetic reasons alone are likely to produce a bigger risk of dissatisfaction than are those performed to repair an injury or correct a deformity that existed prior to the surgery. I understand that it is a common practice to take before and after pho¬ tographs in your work. This seems to me to be a good procedure of "defen¬ sive medicine." "Defensive medicine" indicates that you should order whatever tests are necessary for the welfare of your to exercise
Downloaded From: http://archotol.jamanetwork.com/ by a Oakland University User on 06/15/2015
but not extra tests that are value to him. It indicates that you recommend whatever procedures are best for the patient, provided that the expected benefits outweigh the probable risks. It indicated that you perform yourself those procedures for which you are well qualified and refer to others, who are better qualified, those procedures that are beyond your established competence. If you practice the kind of "defen¬ sive medicine" I have outlined today, I believe you will have done all you can to protect yourself from malprac¬ tice litigation. There is no guaran¬ tee of immunity. Insurance premiums that are based on the losses, not of the individual, but of the group, will probably continue to go up. But good "defensive medicine" should reduce your personal risks. There is a lot that is wrong with the current malpractice conditions that needs to be corrected. You, as an individual physician, cannot do much about that. Your medical societies can. The latest effort in this direction is the Medical Liability Commission. It is a new organization whose mem¬ bers include the major national medi¬ cal organizations. Its one purpose is to search for answers to the malprac¬ tice problems on behalf of all of the medical profession. Your best way to do something about the critical mal¬ practice problems is to apply "defen¬ sive medicine" in your own practice and to give your support to the Medi¬ cal Liability Commission, together with your local, state, and national medical organizations in their search for the answers to the problems.
patient, of
no
