Five years ago, it was clearly recognized that malpractice law associated with hospitalist systems was an emerging phenomenon.1 But today this is rapidly changing, says Linda Greenwald, RN, MS, the editor of Risk Management Publications at the ProMutual Insurance Group, Boston, who keeps an eye on emerging trends related to medical malpractice litigation.
“There’s a whole new category of risk coming up,” she says, “because it’s a whole new specialty that kind of exploded on the scene, and some time needs to be spent defining the role of hospitalists.”
The 2006 winter issue of the company’s newsletter, Perspectives on Clinical Risk Management, was devoted to the subject of hospitalists.2 Patient safety concerns and communication, particularly as they relate to post-discharge communication, were the two overriding issues Greenwald identified connecting malpractice risk and hospitalists. (An upcoming issue of The Hospitalist will address the topic of post-discharge communication.) From her research, Greenwald gathered that hospitalists were considered “like the residents of yore,” expected to “cover the entire house,” to be everything and do everything for everyone.
The newsletter issue advises hospitalists to explain to patients and families who you are and what your role is, and to ask them pointedly whether they have concerns about that. Many patients feel abandoned by their primary care physicians; they don’t understand the new system, and they need to be reassured about the continuity of care. In a larger sense, ProMutual also suggests that institutions provide some type of public forum in their community for the public and providers both, to openly discuss ways to make the hospitalist system work for them all.
—Meg Gaines, JD, LLM
That Dollar Sign
Accumulating evidence shows that some of the contributory causes of rising healthcare-related litigiousness include patients’ higher expectations, poor provider-patient communication, and society’s adversarial legal stance.3
What is really to blame for the rising malpractice costs? “The medical system in our country is grounded in money,” says Meg Gaines, JD, LLM, clinical professor of law at the University of Wisconsin Law School, Madison. “It’s grounded in profit or, at the least, fiscal survival, depending on the institution. … In the bottom line equation, one of the variables is a dollar sign.”
Therefore, she says, anyone working in the hospital needs to recognize that, to a great extent, their working life revolves around that equation.
“The press has made this connection between [the number and amounts of payouts for] lawsuits and rising malpractice costs,” says Professor Gaines. “[It’s not] that there isn’t a connection. But what we do know, and what there is ample research to show, is that malpractice rates are much more linked to the rise and fall of the stock market.”4-10
To an insurance provider, she explains, the premiums are basically a loss leader; that is, a product sold below cost. “They don’t make money on premiums,” says Professor Gaines. “They make money investing premiums. You can see the correlation between rates and stock market performance over time.”
Professor Gaines says that the media has led the public to believe that the high cost of healthcare is due to skyrocketing medical malpractice awards. “Many of the states that put caps on their awards for malpractice torts are doing fine, but so are many states without caps,” she says. “It behooves the press to pit wicked lawyers against angelic doctors, or vice versa,” but it’s a lot more complicated than that. “And that rhetoric takes away from the real point, which is this: Nobody disagrees that too many patients are injured through negligence. But the number of patients injured through documented negligence who actually sue is somewhere between 2%-8%,” which is a very small percentage. Maybe too small.