Reducing Cardiology Malpractice Claims, Lawsuits in Health Practices

^{By Julie Gould}

David L Feldman, MD, MBA, FACS, chief medical officer for The Doctors Company and for the TDC Group of companies, and John Preston Erwin, MD, cardiologist at NorthShore Medical Group, discuss a recent study that examined diagnostic cardiology claims and lawsuits filed over a five year period and identifying what factors may often lead to cardiology malpractice claims. They also provide risk management strategies that can be implemented to prevent the occurrence of an adverse event that could lead to a claim or lawsuit.  

Recently there was a study released that examined diagnostic cardiology claims and lawsuits. Can you talk about this study? What were the findings, and were any of them surprising?

Dr Feldman: The rate of claims against cardiologists has decreased in the last 15 years and is now about 7% (ie, 7 claims per 100 cardiologists). However, in two-thirds of claims, there is a high-severity injury—one where the patient experiences a permanent injury, up to or including death. The top three case types in this study were diagnosis related (failure, delay, incorrect) in 33%of cases, improper treatment management in 20 percent of cases, and improper medication management in 10% of cases. While not entirely surprising, the number of misdiagnosis claims was concerning, since one assumes that cardiologists are aware of the conditions that can mimic a heart attack. These include aortic dissections, pulmonary emboli, endocarditis, and lung cancer. 

Dr Erwin: The Doctors Company reviewed all diagnostic cardiology claims against its members that closed between 2014 and 2019 to include in an analysis. This approach helps them to better understand what motivates patients to pursue claims and helped gain a broader overview of the system failures and processes that result in patient harm.

The 10 most common injuries that prompted claims or suits were: Patient death (54%), cardiac or pulmonary arrest (23%), infarction of heart and/or brain (21%), organ damage, including brain, heart, and/or lungs (16%), embolism/thrombosis (12%), need for surgery or procedure (10%), hemorrhage (9%), adverse drug reaction (9%), emotional trauma (6 percent), and infection (5%).

Overall, the number of claims filed against cardiologists has decreased over the last 14 years. However, it could be argued that the rate of claims in the last five years is starting to increase. Either way, it is important to explore ways of reducing the number of patient injuries.

Regardless of the trendline, claims and suits that have been filed continue to have a high percentage (67 percent) of high-severity injuries. A focus on these cases yields insights that help reduce the frequency and severity of patient injuries.

There were five primary types of cardiology claims:

• Diagnosis related (failure, delay, incorrect) (33%)
• Improper management of treatment (20%)
• Improper medication management (10%)
• Improper performance of treatment or procedure (7%)
• Incorrect or unnecessary treatment or procedure (4%)

The only surprise to me was that I would’ve assumed the frequency of claims citing bleeding (hemorrhage) to be higher. 

Can you talk a little about the impact of a claim or lawsuit on a practice? How does this impact the provider?

Dr Feldman: Many talk about burnout among physicians, especially during the pandemic. We know that physician burnout can predispose physicians to a lawsuit when they don’t pay attention to details (see above) as a result of exhaustion and other symptoms of burnout. On the other side, we know that a lawsuit can contribute to physician burnout due to the nature of how lawsuits are brought (legal documents contain broad language that physicians may find offensive), and the processes involved in a lawsuit, including depositions, meetings with attorneys, and potentially trials, which include spending significant amounts of time away from the office, plus facing perceived attacks in a courtroom.

Dr Erwin: Obviously, any unintended outcome, whether failure to timely diagnose and/or a less than optimal outcome from a procedure, can be life-changing or life-threatening to the patient involved and their loved ones. Many times, these are not related to suboptimal delivery of the care provided, as humans are complex beings and not machines with interchangeable parts. Despite this, these events can reputationally destroy practices—especially in this era of Yelp-like reviews of medical practices found so ubiquitously on the internet. Due to HIPAA restrictions, practices are rarely able to provide facts related to the claims to defend themselves in the court of public opinion.

Knowing that any suboptimal outcome or death affects the patients and families that we care about, we take these events personally, whether we have direct control of them or not. We train for years to help people to live longer and healthier lives, and anything short of that goal can feel like a personal failure. When a legal claim is made, there is a very high rate of professional burnout and depression that can occur. This is in a setting where there is already a very high rate of these things, even in the absence of claims. Physicians have the highest rate of suicide of any occupation. Many physicians who fall prey to suicide have started the path down that road after a lawsuit. 

How can these study findings be used in clinical practice? How do they help address the critical nature of effective communication between cardiologists and their patients?

Dr Feldman: Lawsuits tend to capture the attention of clinicians for all the reasons stated above. Although thankfully small in number compared with other adverse events in clinical care, lawsuits provide a depth of information often not otherwise available, and the aggravation and expense associated with lawsuits can inspire clinicians to change behavior in ways that other interventions may not be able to. In this study, the fourth most common contributing factor to patient harm and litigation was lack of communication between the clinician and the patients and/or their families. Because we know that most patients preparing to undergo a heart procedure or surgery are anxious, confused, and scared, the hope is that findings from this study can motivate cardiologists to focus on spending the necessary time to ensure the patient understands his/her cardiac condition and the reason for the recommended procedure or surgery. It’s also critical that cardiologists use shared decision making to identify the ideal outcome and possible complications and employ health-literacy tools to promote effective communication. 

Dr Erwin: We tend to have better outcomes in situations where we standardize our approach to a problem or a procedure. Decreasing variation in our approach to a workup or a treatment can help prevent errors and untoward outcomes. We must also be diligent in the way that we communicate expectations, risks, and benefits of a particular approach with patients, caregivers, and families.

By knowing the types of complications and the likelihood of complications based upon individual patient variables, we can ensure that the patient has full knowledge that no diagnostic approach is foolproof, nor any therapeutic intervention without side effects and risk. This helps us in the shared-decision-making process with patients and families.

How has the pandemic impacted cardiology care? 

Dr Feldman: The use of telemedicine has exploded during the pandemic, and we know that remote monitoring has long been particularly important for cardiologists. As a result, we anticipate there will be continued efforts to have cardiologists take advantage of these modalities for patients with chronic illnesses, such as heart failure, high blood pressure, and arrythmias. At the same time, cardiologists need to recognize the limitations of telemedicine, especially since a traditional physical exam is not possible. 

Dr Erwin: It has added an extra degree of complexity to every domain of patient care. We rely upon a patient’s history, physical exam, general appearance, frailty index, and complex diagnostic tools to help us get to the proper diagnosis—which is the foundation to the proper treatment plan for a patient. Almost all of these are more difficult during these times. Access to testing and therapeutic modalities is also more frequently delayed and fraught with additional logistical difficulties, given need for COVID-19 testing, quarantine restrictions, personal protective equipment, and social distancing. Many procedures that initiate as being elective in nature can become more urgent/emergent with time delays. In almost all things, performing in urgent/emergent situations comes with higher risks. For hospitalized patients, developing rapport with the patient’s family/loved ones is made difficult, as well. Given necessary visitor restriction policies in most hospitals, it is much harder for the physician to establish the circle of trust within a family or to ensure that the communication going to other, more remote family members is reliable, which can tarnish expectations.

Do you have some risk management strategies that can be implemented to prevent the occurrence of an adverse event that could lead to a claim or lawsuit? 

Dr Feldman: Be sure to consider all possible differential diagnoses for all new or recurring problems, unresolved conditions, and symptoms. Be aware that women below the age of 40 are at risk for a myocardial infarction when presenting with symptoms not considered “typical.” Data used from wearable technology should be used in combination with the patient’s symptoms and physical evaluation (see telemedicine comments above). Patients should be encouraged to come prepared to their visit with questions, and educational resources should routinely be provided to assist with patient understanding and adherence with the recommended plan of treatment. Reasons for patient nonadherence to treatment and/or medication regimen should be identified, addressed with the patient, and documented in the record. Finally, timely follow-up should be completed on unexpected or incidental findings in imaging studies when ordered for a different purpose. 

Dr Erwin: Frequent time-outs, overcommunicating findings/plans/risks/benefits expected, and communicating by as many overlapping modalities as possible to ensure that the patient and the care team are all on the same page is key. It is also important, even in unprecedented times and environments, to work to not deviate from accepted best practices and care pathways.

Is there anything else you would like to add?

Dr Erwin: Community mortality rates have increased beyond what can be directly explained by COVID-19, and we are seeing delayed presentations of sicker patients once they do get to our offices, hospitals, and procedure labs. It is extremely important for patients to seek care urgently if they are experiencing cardiovascular symptoms or have a change in those symptoms since the last time that they saw their cardiologist.

Reference:

The Doctors Company, TDC Group. Cardiology Closed Claims Study. https://www.thedoctors.com/articles/cardiology-closed-claims-study/. Published November 2020.

About the Speakers 

David L. Feldman, MD, MBA, CPE, FAAPL, FACS, is Chief Medical Officer for The Doctors Company, the nation’s largest physician-owned medical malpractice insurer, and for the TDC Group of companies (TDC Group). He leads TDC Group's education efforts on patient safety and risk management and is the primary spokesperson for trends and issues on patient safety and risk management. He is also Senior Vice President and Chief Medical Officer at Healthcare Risk Advisors (HRA), which is part of TDC Group. HRA provides resources and a collaborative environment designed to minimize claims and lower premiums for HRA clients by preventing patient harm, enhancing teamwork and communication, and improving documentation.  

Prior to HRA, Dr Feldman was Vice President for Patient Safety, Vice President of Perioperative Services, and Vice Chairman of the Department of Surgery at Maimonides Medical Center in Brooklyn, NY, where he implemented numerous patient safety initiatives, including the use of the World Health Organization (WHO) surgical checklist. He currently serves on the steering committee of the American College of Surgeons (ACS) for retraining and retooling of practicing surgeons.  

Dr Feldman received a BA and MD from Duke University, completed training in general surgery at The Roosevelt Hospital (now Mount Sinai West), and plastic surgery at Duke University Medical Center. He earned an MBA from New York University. 

John P. Erwin, III, MD, FACC, FAHA, FACP, is a general cardiologist with special interests in sports cardiology, valvular heart disease, ischemic heart disease, preventative heart disease, and quality improvement in health care. He is also the Coon Chair of the Department of Internal Medicine at NorthShore University Health System and Clinical Professor of Internal Medicine at the University of Chicago Pritzker School of Medicine. Dr Erwin did his internal medicine residency and cardiology fellowship at the Mayo Clinic in Rochester, MN. He has also done a fellowship program with Intermountain Healthcare in patient safety and quality.