Failure to communicate: insurers can help reduce the burden of medical malpractice lawsuits by urging their policyholders to improve physician/patient relationships.

Key Points

* Many malpractice cases are due to poor communications and mismanaged expectations.

* Health-care providers should use comprehensive informed-consent procedures to reduce malpractice litigation.

* Researchers found that physicians who were perceived as patriarchal, uncaring or hostile experienced more malpractice claims.

Currently, medical-malpractice litigation issues are focused on legislative and tort reform. While the debate and legal maneuvering continue, forward-thinking insurers and providers are looking at the root causes of malpractice lawsuits and at what can be done to manage the current emphasis on litigation as a way to solve problems and to three systemic change.

One surprising finding is that many malpractice cases today are not due to medical negligence, but to poor communications and mismanaged expectations. Based on several recent studies, it appears that patients who have not suffered damage from actual malpractice file the majority of lawsuits.

The question for insurers is simple: "How do we help our policyholders and the industry, as a whole address this area that has traditionally fallen well out side our purview?" Insurers today are exploring a wide range of clinical risk-management programs designed to enhance physician/patient communications and help patients gain a better understanding of their medical care and surgical procedures. The goal of this new emphasis on communication is simple--to find a better way to reduce the frequency and severity of medical malpractice litigation in an effort to protect the health-care and insurance industries from its potentially devastating effects.

While this latest approach to managing malpractice litigation is still new, several promising strategies are emerging, including the following:

* Efforts to improve trust and facilitate shared decision making;

* Improvement of the current informed-consent process;

* Better documentation of communications with patients;

* Education of all staff involved in the patient encounter; and

* Use of powerful risk-management patient education tools.

Beyond the Adversarial Approach

Until recently, much of the healthcare industry's attention has focused on a defensive or adversarial approach to litigation management. Over the past decade, some have employed such aggressive techniques as filing countersuits and posting on Web sites the names of patients who frequently sue. These approaches may offer some recourse, but they don't address the key contributors to the crisis--patients' understanding of their medical or surgical procedures and poor physician communication.

While the Norman Rockwell-inspired notion of the ideal physician may be a thing of the past, the basic message endures: trust must govern every doctor-patient relationship. To facilitate that trust, the physician and patient must form a partnership, with both understanding their roles and responsibilities in an effort to obtain the best possible outcome for the patient. In today's era of managed-care medicine, physicians, particularly surgeons or specialists who perform one-time procedures, have little opportunity to build relationships. Therefore, such trust building is difficult and hampered by time constraints on the physician and in many instances, the physician's own poor communication skills.

When they advocate the building of trust and relationships, insurers are recommending an approach that has significant justification as both a risk management tool and long-term litigation management strategy. In a study published in the journal Surgery, researchers found that physicians who were perceived as patriarchal, uncaring or hostile experienced a higher frequency of malpractice claims. In all, 35% of malpractice cases cited in the article noted physician's communication style as one reason for the litigation. Equally surprising is that judges often can determine the claims history of a physician simply by listening to his or her voice for a few seconds.

Informed Consent

Perhaps it's because they recognize their own shortcomings as communicators that some physicians--particularly those performing invasive procedures--rely on the informed consent document. The most important point for providers to recognize is that informed consent is a process--not a piece of paper. For some physicians, however, it's far easier to pass a piece of paper to a patient than to spend time to explain or discuss a procedure. Many physicians can point to the informed consent document and show that it was provided and signed; yet, verifying a document was signed and ensuring that a patient understood the material are two vastly different acts. Currently, lack of proper informed consent is listed as a factor in 40% to 60% of all malpractice cases. The reasons for this startling figure are clear. A recent patient study found that only 16% of consent forms were understood by patients with a high school education. In another study of 157 hospitals nationwide, researchers found that only 26.4% of the consent forms included the risks, benefits, alternatives and other important aspects of the procedure; clearly, significant and important information was lacking.

These are some of the key steps to ensure appropriate informed consent:

* Provide a clear, easy-to-understand informed consent document;

* Take the time and steps to make certain that the patient and his or her circle of care can understand the document;

* Translate the document, if necessary, and walk the patient through the entire document step by step; and

* Give the patient an opportunity to ask questions and receive answers.

The goal of providers and insurers should be to create a process that fosters shared decision making so that the patient is not only empowered by the information reviewed, but fully informed and aware of all benefits, risks and what to expect after the procedure.

Documentation

While many providers are making a concerted effort to improve their informed consent procedures, insurers have found that some neglect to track proper documentation. Providing signed copies of the informed consent document and highlighting the steps to ensure receipt and understanding of the materials are important parts of the documentation process. Other steps beyond the informed consent document also are overlooked. For example, plaintiffs attorneys often will ask for proof that a procedure was fully explained to a patient. Physicians often will reply, "I always go over that with my patients," yet few are able to prove it. Written policy and procedural manuals, training programs on the implementation of policy for staff, electronic medical records or other technologies to validate communication and simple chart notes in patient files all can provide that necessary documentation.

Educate Staff

To improve communication, it's also important that providers and insurers recognize the roles and responsibilities of administrative, nursing and other office or hospital staff. For example, the first introduction patients often have to a provider is their encounter with the administrative staff. All the efforts of the provider may be compromised if administrative staff members aren't friendly, knowledgeable and helpful, and if they don't know the importance of documenting communication. Some insurers offer programs to their policyholders to help address this need. They will offer online seminars, clinics or hospital assessments, staff education programs or access to clinical risk-management reference manuals. In short, they will provide a full array of tools to help the administrative staff recognize the importance of communications and documentation and the critical role they play in the efforts to mitigate malpractice litigation.

The Insurance Industry's Role

Finding ways to ensure patients fully understand medical procedures is an imperative for both insurers and providers. Most providers want to ensure their patients fully understand procedures, but have difficulty developing and implementing processes in the face of almost overwhelming burdens of health-care practice. Insurers can play an important role in this process by providing their policyholders with access to information, educational programs and resources.

In addition, while physicians should be encouraged to do the right thing for the right reasons, some insurers and associations also have elected to recognize physicians who have taken significant steps to better manage malpractice litigation. Many insurers are offering special incentives to providers who implement programs or products to reduce the frequency and severity of malpractice lawsuits. This will increase loyalty and result in providers working with insurers as partners.

Providers must also recognize that while taking steps to improve patient education is important, there is no single magic solution. Progress requires a comprehensive approach that addresses every aspect of the health-care encounter.

The debate surrounding who is to blame and how to address issues related to malpractice lawsuits will continue. Insurers and providers need to take steps today to help improve patient-doctor relationships, outcomes and understanding. Ensuring that providers use comprehensive informed-consent procedures, improve communication and launch Web-based patient education tools can serve as an important step to reduce the frequency and severity of malpractice litigation,

RELATED ARTICLE: Web-based patient education tools.

A growing category in litigation management and patient education is online or Web-based education risk-management tools. While not replacing the need for physicians to improve their communication procedures or styles, the online approach does offer some key benefits. For example, studies indicate that use of multimedia programs appears to promote improved comprehension.

What's most promising about this new approach to patient education is its emphasis on ensuring that patients secure the level of information and support that they need. With a Web-based program, patients can view the program in their own home, or in a private medical, clinic or hospital office, at their own pace, and with family or friends who often need to understand procedures as well to properly assist with pre- and post-care instructions.

With one of the leading online risk-management patient education tools, patients are presented with a series of interactive modules that walk them through the entire preoperative and post-operative processes in an easy-to-understand manner.

In a typical program, for example a colonoscopy, the patient will view a detailed illustration of the colon and information on the importance of a colonoscopy to reduce the risks of colon cancer. Particular emphasis is placed on what to expect to relieve fears about pain, discomfort, and most importantly, the embarrassment some patients have about the procedure. A series of questions encourages patients and ensures they're engaged in the program and allows them to delve further into the topic for clarification. In addition, patients have the option of submitting questions to their physicians throughout the program. The physicians can then respond to the patient via phone, fax or at the next office visit.

This approach to patient education and the informed consent process can help reduce the frequency and severity of malpractice cases in a number of ways. By providing a tool to educate patients on the basics of their procedures, physicians can use office visits to answer specific questions and concerns. This process not only provides vital information, but also builds trust and improves their relationship with the patient. Second, improving patient understanding of the procedure helps ensure they follow physician instructions carefully. This leads to fewer readmissions, shorter recovery times, and ultimately, patients who are much more satisfied with their overall provider experience.

With a Web-based tool, the entire patient experience has been recorded and documented and can be accessed for future reference if needed. Unlike the traditional method of physician-patient communication, Web-based programs provide indisputable proof of everything the patient saw, heard and responded to. This documentation is legally admissible should a malpractice lawsuit be initiated.

Jordan Dolin is chief executive officer of Rightfield Solutions. Theresa N Essick is vice president, Clinical Risk Management Services leader, GE Insurance Solutions.