COVID-19 testing in grocery store parking lots. Clinicians crossing state lines to practice in hard-hit hospitals miles away from their health system. ICU doctors made to shore up shortages of ventilators by adapting medical equipment from its intended purpose. Are these just medical malpractice suits waiting to happen?
Margaret Nekic, CEO of Inspirien, a hospital-and-physician-owned medical malpractice and worker’s comp insurance company, reveals what’s happening behind-the-scenes as professional liability carriers hurry to adapt to the changing circumstances of a healthcare system thrown into crisis-mode.
While new legislation is emerging to somewhat safeguard healthcare workers from bearing the risk of some of the pandemic’s unprecedented circumstances, what happens when the immediate surge has passed? Will costs for medmal insurance go up? And, what happens from a worker’s comp standpoint if a healthcare worker becomes infected with COVID-19?
As healthcare delivery in hospitals continues to change — and, at the same time, more and more care extends outside the traditional doctor’s office by way of an uptick in use of digital health and telehealth options among non-COVID patients — it seems the pandemic might ultimately also accelerate changes in the way healthcare organizations think about risk management and their insurance coverage for it.
Recently, my niece gingerly
confided that she was going to study engineering rather than medicine. I was
certain she’d become a doctor – so deep was her love for biology and her
deference to our family tradition. But she calculated, as would anyone with
common sense, that with an engineering degree and an MBA, she’d be working for
a multinational company making a comfortable income by twenty-eight. If she
stuck with tradition and altruism, as a doctor she’d still be untrained and
preparing for examinations at twenty-eight.
Despite the truism in India that
doctors are the only professionals never at risk of starving, the rational case
for becoming a physician never was strong. Doctors always needed a dose of the
irrational, an assumption of integrity and an unbridled goodwill to keep going.
Once, doctors commanded both the mystery of science and the magic of
metaphysics. As medicine became for-profit, the metaphysics slowly disappeared.
Indians are becoming more
prosperous. They’re also less fatalistic and expect less from their gods and
more from their doctors. In the beginning they treated their doctors as gods, now
they see that doctors have feet of clay, too. Doctors, who once outsourced the
limitations of medicine to the will of Gods, summarized by the famous Bollywood
line “inko dawa ki nahin dua ki zaroorat hai” (patient needs prayers not
drugs), now must internalize medicine’s limitations. And there are many –
medicine is still an imperfect science, a stubborn art, often an optimistic breeze
fighting forlornly against nature’s implacable gale.
In July 2009, the family of Massachusetts teenager Yarushka Rivera went to their local Walgreens to pick up Topomax, an anti-seizure drug that had been keeping her epilepsy in check for years. Rivera had insurance coverage through MassHealth, the state’s Medicaid insurance program for low-income children, and never ran into obstacles obtaining this life-saving medication. But in July of 2009, she turned 19, and when, shortly after her birthday, her family went to pick up the medicine, the pharmacist told them they’d either have to shell out $399.99 to purchase Topomax out-of-pocket or obtain a so-called “prior authorization” in order to have the prescription filled.
Prior authorizations, or PAs as they are often referred to, are bureaucratic hoops that insurance companies require doctors to jump through before pharmacists can fulfill prescriptions for certain drugs. Basically, they boil down to yet another risky cost-cutting measure created by insurance companies, in keeping with their tried-and-true penny-pinching logic: The more hurdles the insurance companies places between patients and their care, the more people who will give up along the way, and the better the insurers’ bottom line.
PAs have been a fixture of our health care system for a while, but the number of drugs that require one seems to be escalating exponentially. Insurance companies claim that PAs are fast and easy. They say pharmacists can electronically forward physicians the necessary paperwork with the click of a mouse, and that doctors shouldn’t need more than 10 minutes to complete the approval process.
“Not everything that counts can be counted, and not everything that can be counted counts.”
This aphorism has been deliciously, but, alas, incorrectly attributed to Albert Einstein (the saying actually has mixed origins, but credit properly might be given to sociologist William Bruce Cameron, writing in 1963).
But, whatever its provenance, the saying is particularly appropriate in describing the woeful lack of attention paid to the long-standing problem of diagnosis errors in the provision of health care services.
Last week academic researchers from Baylor and the University of Texas published important research estimating that one in 20 adults in the U.S., or roughly 12 million people every year, receive an error of diagnosis—a wrong, missed or delayed diagnosis—in ambulatory care.
This likely represents a conservative estimate of the incidence of such errors in ambulatory care and does not attempt to include inpatient hospital care or care provided in nursing homes and post-acute care facilities, such as rehab hospitals.
The news media correctly decided that this peer-reviewed finding deserved prominent attention—it was a lead story on “NBC Nightly News” and other national news programs.
It seems that attaching a large number to the prevalence of such errors provided the needed news hook to give the problem the attention it has long deserved. Surveys reveal that the public is worried as much about a misdiagnosis or missed diagnosis as any other quality and safety issue in health care.
Autopsy studies performed over time find that unacceptably high rates of diagnosis errors persist; similarly, diagnosis errors continue to represent a leading cause of medical malpractice suits.
But even without newsworthy body counts, the problem of diagnosis errors has been known to clinicians for decades, if largely ignored by stakeholders and policy-makers as a major quality and safety problem.
I felt sad when I went to make rounds in the hospital.
One of my patients, a colleague, had been readmitted in poor condition for recurrence of a primary lung sarcoma.
I spent a few minutes examining Dennis and chatting. He then, with a quizzical look, said, “Jim, I’m going to have to sue you. I know I’m dying. My wife Alice and the kids are still pretty young.” He saw my look of surprise and added, “You know, I don’t have much life insurance or other very significant funds for them to live on. It’s nothing personal. I know you’ve given me good care, but my wife is upset and tends to blame you for the outcome. I guess the hospital and others will be named.”
There wasn’t much more for me to say at the time except, “Dennis I can find another attending for you if you’d like.” He replied, “No, I want to stay with you.”
Dennis was a well liked family doctor. About five years earlier a “coin lesion” was discovered on a chest X-Ray. This 2cm spot in the right upper lobe had a smooth rounded border and didn’t contain calcium. A CT scan showed no enlarged lymph nodes and no other spots elsewhere. A needle biopsy of the spot was not diagnostic. We knew the spot was new because an X-Ray five years earlier was normal. He hadn’t traveled to an area where Valley Fever or other fungal infections were common.
Malpractice lawsuits are a necessary evil in our society. At times, they are frivolous, often resulting from a patient’s or family’s anger at a result that was not what they had hoped. Some are actually designed just to try to get a financial settlement. When doctors are sued for malpractice, it is a searing process, isolating and painful. I have known several excellent doctors who have given up established practices so they will never have to go through the possibility of another lawsuit. That is a real loss to society.
But our legal system is also designed to protect patients. Malpractice lawsuits can be justified when a doctor acts negligently or makes a decision that is clearly outside of the bounds of the accepted standard of care.
One of things we know about quality and safety lapses in hospitals, though, is that they are often the result of systemic problems in those organizations. It is not that a doctor or nurse has intentionally committed a clinical error. It is that the way work is organized in the hospital causes errors to occur. For example, many hospital-related infections arise this way, and people die or are harmed as a result. This raises a question as to whether it should be possible to sue for malpractice when a hospital fails to act to correct systemic problems.
Anne Carroll, now retired, has graduate degrees in information science and public health. She raised the question this way recently in a recent health care quality and safety chat room (reprinted here with her permission.)
Whenever I post about the malpractice system, I try to make it clear that while I don’t consider it to be the cause, nor the cure, for the problems in our health care system, that doesn’t mean that the system isn’t broken in many ways. Nuisance cases do exist; cases that have real merit never see the light of day. One additional side effect of portraying the malpractice system as the boogeyman of the entire system is that we lose sight of the fact that it really does impact physicians. Take defense costs.
The objective of this study was to take a closer look at defense-related expenses for medical malpractice cases over time. We conducted a retrospective review of medical malpractice claims reported to the Physician Insurers Association of America’s Data Sharing Project with a closing date between January 1, 1985 and December 31, 2008. On average a medical malpractice claim costs more than $27,000 to defend. Claims that go to trial are much more costly to defend than are those that are dropped, withdrawn, or dismissed.