Wednesday, November 28, 2012

A proposed exception to malpractice coverage

Did you know this?

The Joint Commission Board of Commissioners originally approved the Universal Protocol for Preventing Wrong Site, Wrong Procedure and Wrong Person Surgery™ in July 2003, and it became effective July 1, 2004 for all accredited hospitals, ambulatory care and office-based surgery facilities.

Implementation of this standard was observed in the breach for some time. One article notes:  "The rate of wrong-site surgical procedures before and after implementation of the Universal Protocol mandate was not significantly different."

So penalties were imposed.  Wrong-site surgeries were declared "never" events. As such, doctors and hospitals cannot be paid when they occur.  How effective has this been at reducing the number that occur?  Not much or at all.

Understanding that rule-based failures--actions that match intentions but do not achieve their intended outcomes due to incorrect application of a rule or inadequacy of the plan--are always possible, it still makes sense to pursue universal application of the "universal" protocol.

Here's an additional idea that could be implemented immediately by all of the malpractice insurance companies in the country: Any surgeon who has carried out a wrong-site surgery who did not follow the universal protocol for a time-out would not be covered for malpractice claims on that procedure.  Any anesthesiologist who was attending such a surgery likewise would not be covered for malpractice claims on that procedure.

Maybe this would finally start to make a difference in the frequency of wrong-site surgeries.  What do you think of this idea?


@claudiawilliams said...

From Twitter: Interesting. If "not paying" does not help, is there reason to expect that excluding from malpractice coverage will?

Paul Levy said...

Losing a few thousands dollars of revenue is one thing. Losing hundreds of thousands from malpractice is another.

Anonymous said...

I seriously doubt that this approach would lead to any change in 'never' events. What it would do is penalize one or two physicians for events that are widely and appropriately known to be system related problems.

Wrong side surgery seems particularly egregious and 'obviously' preventable. While I would still argue that it relates to systems issues and not just the fault of the surgeons, in other instances JCAHO has labeled events as 'never' events that are not even within the physician's control. For example, patient suicide/attempted suicide during or shortly after hospitalization, physical aggression with injury, and falls with injury are all events in which there are clearly measures that can be taken to reduce their likelihood. Nevertheless, if a patient is determined enough he or she can seriously injure themselves or others even if watched continuously and treated to the highest possible standard of care. To expect that a physician can prevent 100% of determined individuals from suicide, even after discharge, is naive. It would be extremely shortsighted to take it a step further and punish those individuals who are willing to care for the highest risk and most severely mentally ill individuals. If i happen to be a klutz (which I am) and can fall and hurt myself on my home stairs (which i have), why should my physician or the hospital be blamed (and lose their malpractice coverage for the event) if i did the same thing while I happened to be hospitalized?

I am extremely invested in health care quality, which is the reason that I read this blog, and i am involved with standard setting locally and nationally. But I also care for patients in acute care settings and realize the extreme difficulties of trying to provide high quality, error free care in an environment that values throughput over thoroughness, and cost-effectiveness over conscientiousness. Already, the health care system (with all of its disparate rules, regs, quality schemas, documentation requirements and bizarre reimbursement methodologies ) is making it increasingly difficult and demoralizing to practice medicine, I love what I do and am committed to helping my patients but if my house, savings, retirement funds, etc. were placed at risk by a lack of malpractice coverage in the event of a patient suicide, aggressive action or fall, it wouldn't make me more careful, it would make me leave clinical practice.

Physicians already live with the constant anxiety that we can be sued at any time for anything, even if there was nothing done wrong and even if there's not a bad outcome. (I have seen colleagues tied up for years in legal cases where there was no actual harm at all to the patient, but no judicial decision could be made in favor of the physician until legal motions, discovery, depositions and many other time consuming and anxiety provoking steps had been completed.). If anything, the constant spectre of malpractice actions makes people more nervous and distractible, leading them to be more prone to errors and more likely practice cover-your-tail medicine.

Bottom line: your intent may be good, but your suggestion is not likely to be helpful and is unfairly destructive to clinicians as well as being ultimately detrimental to health care.

Paul Levy said...

Dear Anon,

Thanks for your thoughts, but you have not really provided a substantive reason as for why this idea won't work. You took my very limited proposal--for one kind of procedure--and expanded it to a whole variety of "never" events.

Note that I did not suggest that all wrong-site surgeries would have the malpractice coverage exception. As you note, it is possible to have such an event even when a time-out occurs because of other systems issues.

But surely we have gotten to the point that we can expect a time-out to happen, and can't we hold the two attending physicians (the surgeon and the anesthesiologist) accountable for ensuring that it does, in fact, occur?

I agree with you, btw, that the expanded use of "never" events has not been helpful.

Equbal Kalani said...

From Facebook: Fear of lack of insurance coverage would be a strong motivator for the surgeon but would it affect the whole system and processes involved in reducing the error?

Paul Levy said...

No, it would not necessarily eliminate other systemic causes of wrong-site procedures.

Anonymous said...

Paul, it seems like this idea contradicts your previous assertions that these type of errors are system problems rather than individual problems, so I am a bit surprised at this proposal. (Could I be rubbing off?).
For instance, in your own hospital's incident, the surgeon 'forgot' to follow the protocol - would he therefore be included in this idea?
If not, then we get into the whole subject of intent, etc.; a sticky wicket indeed. As Wachter and others have indicated, the balance between a just culture and individual accountability is a very difficult subject.

nonlocal MD

CLK said...

"The rate of wrong-site surgical procedures before and after implementation of the Universal Protocol mandate was not significantly different."

This may not be an answerable question, since the problem seems so retractable to solve, but how does this continue to happen? I spent the better part of my 40 years in nursing working in, after, before and around surgical procedures/patients and have never experienced a wrong patient or wrong site situation. The operating room staff were obsessive about checking and marking surgical sites as long ago as the 1970's. It is beyond comprehension that such a basic item in a surgical check list is missed. It would seem that total loss of license to practice in any way would be appropriate for such sloppiness.

Paul Levy said...

No local,

All good points. As I mentioned, conducting a time-out does not eliminate the possibility of other systemic problems. But it is hard to imagine how not doing a time-out results from systemic problems. Maybe it can be, but my impression is that when a surgeon fails to conduct a time-out it is because he or she chooses to do that or simply forgets to do it.

Under my suggested approach here, the surgeon would have an extra impetus to do the time-out, and the anesthesiologist would also be right there and have an incentive to remind the surgeon.

Would malpractice insurance cover a surgeon who failed to scrub in for a procedure and harm resulted to the patient? I don't know, but the time-out essentially rises to the same standard of prudence. At some point, failure to meet a standard of care rises to the level of negligence. What that point is can and should be subject to discussion. As you often say, some level of personal responsibility has to be expected.

Paul Levy said...

Oops, spellcheck made you "no local!"

Barry Carol said...

Paul –

I think your proposal makes sense, at least in theory. My question is how do you prove that a time out did not occur if the culture of the institution is that doctors are never questioned and the rest of the team is expected to observe a code of silence if a mistake occurs and they will suffer serious retribution if they dare to speak up?

Paul Levy said...

All cases are documented now in real time--some electronically and some by hand--so the absence of a time-out will show up later. To falsify it after the fact would require the concurrence of the record-keeper, usually someone other than the surgeon. It is hard to imagine that a nurse could be cowed into doing that.

Anonymous said...

It's not that I necessarily disagree with you; it's that this proposal is a surprising (if not stunning) 180 degree turnaround in attitude from your detailed explanation of how the timeout was omitted in the BID wrong site surgery case and why you proceeded as you did. At the risk of this comment rising to the length of a blog post, let's examine it on the merits:

1. We physicians carry malpractice precisely for those situations in which we fail to meet the standard of care. If I recall correctly, malpractice coverage is generally only withheld for a specific case if there is criminal activity. Of course, if you continually fail to meet the standard of care you will be dropped by your company. Therefore your proposal implies criminal activity by not performing a timeout for whatever reason. Who knows, maybe
you're right.

2. When all this teamwork talk first arose among 'thought leaders', we docs' first thought was, 'sure, it's teamwork till something untoward happens and then it's US who get sued for malpractice. We are ultimately responsible and therefore we must be captain of the ship.' With all that entails, including the rest of the team following our edicts unquestioningly. Your proposal supports us in that idea; is that what you want?

3. As a consequence of #2, your proposal obviates years of trying to persuade docs to work within a team, including Pronovost's work and many, many others' exhortations. Essentially, you are now proving you didn't really mean it after all. In addition, those nurses, house staff and medical students who were afraid to speak up now will definitely remain so.

4. Your proposal does nothing for educating physicians on why the timeout is critical; it merely encourages box-checking, even in the absence of any meaningful timeout. Therefore the physician is protected from his malpractice company and the patient is no safer.

5. Doctors already point to the lack of decline in wrong site surgeries as evidence that the timeout itself is ineffective, rather than the many root cause analyses that show the timeouts are either not performed or performed incorrectly. Because of #4, you will contribute to its ineffectiveness, resulting in a self-fulfilling prophecy.

If you wish to adopt a punitive approach, I suggest having the hospital suspend the entire surgical team involved in the case, recognizing their shared responsibility to have conducted a proper timeout. The doctor is already going to be sued. At least this will encourage EVERYONE to be involved and ensure the timeout is performed correctly. However, I'm not sure that either is the way to go. What I do think is that hospital CEO's have to become personally involved in investigating each and every failure and assume their own responsibility for ensuring that a proper timeout becomes as typical as scrubbing in by enforcing medical staff discipline, no matter how much $$ the doctor brings in. Maybe they should be suspended too........


Paul Levy said...

All excellent points. So maybe it's not such a good idea!

Maybe I even wrote this post in the hope that someone would make these points . . . .

Anonymous said...

Just as I suspected.......but it was just like old times.


Jim said...

I suspect that such a measure would result in 100% of DOCUMENTATION of the use of the Universal Protocol. As we all know, this is not the same thing as the cultural commitment to the udnerlying ideas of respect for the patient that leads to this thoughtful pause and confirmation. I suspect, however, that rate of wrong site surgeries would not fall appreciably. Unfortunately, there is no shortcut to the culture that is committed to eliminating patient harm. In some ways, regulation of good behavior IMCO has led to the illusion that this is possible. It also may have contributed to the erosion of the doctor-patient relationship from a social one to a market relationship (see Ariely, Dan)