Stages of the Litigation Process - CASE RESOLUTION

In past newsletters I have outlined the stages of the litigation process so that KMRRRG insureds may be a bit more informed and comfortable with the stages of a lawsuit. This issue sums up the final stage of the litigation process, Resolution.

Every case reaches a stage in which the insured, insurer and defense counsel determine the pros and cons of defending a case all the way through trial or reaching a settlement agreement.
Most Medical Malpractice cases do not go to trial. Of the medical malpractice cases that do go to trial, most result in verdicts for the defense. In Jefferson County, Kentucky greater than 85% are defense verdicts. Obviously, the evaluation of a case assists in determining which cases to try and which cases to settle. KMRRRG and our insureds have done an excellent job settling cases we are likely to lose at trial and trying the cases that will likely result in a defense verdict.

Mediation

In Kentucky, many Judges will require a court ordered mediation prior to setting a trial date. Mediation is a form of negotiation where the lawyers and the clients agree on a neutral mediator, often a retired judge or experienced attorney, who will sit down with the parties and try to help them reach an agreement. This is a collaborative process in which KMRRRG along with the insured and defense counsel determine if there is a settlement amount that might be considered to avoid the risk of trial. Every case is evaluated differently and many aspects of the case must be evaluated and considered to reach a "pay" or "walk away" decision.

Trial Preparation and Trial

When a settlement agreement cannot be reached, the case is set for trial. Arrangements are made for our experts to testify at trial, either in person or by deposition. Numerous hours are spent preparing exhibits, visual aids, opening statements, questions for the witnesses and closing arguments. Focus groups may be used to see how people who may be similar to the prospective jurors, react to the case. Pre-trial meetings and prep sessions are held with our client, our experts and all witnesses so that everyone knows exactly what to expect. Before we go to trial we want everyone who will testify in our case to know all of the questions they will be asked and we want to know all of the answers. We will also prepare all of our witnesses for cross-examination by plaintiff counsel.

There is no way to predict with 100% certainty the outcome of a jury trial. KMRRRG and the defense team can't consistently predict what a jury will decide even after the case has been tried. KMRRRG's thorough preparation by working with an experienced defense team produces the greatest likelihood of a fair settlement and/or a successful trial outcome.

Patient Safety in Ambulatory Care
From Patient Safety Primer

BACKGROUND

Despite the fact that the vast majority of health care takes place in the outpatient, or ambulatory care, setting, efforts to improve safety have mostly focused on the inpatient setting. However, a body of research dedicated to patient safety in ambulatory care has emerged over the past few years. These efforts have identified and characterized factors that influence safety in office practice, the types of errors commonly encountered in ambulatory care, and potential strategies for improving ambulatory safety.

Factors Influencing Safety in Ambulatory Care

Ensuring patient safety outside of the hospital setting poses unique challenges for both providers and patients. A recent article proposed a model for patient safety in chronic disease management, modified from the original Chronic Care Model. This model broadly encompasses three concepts that influence safety in ambulatory care:

• The role of patient and caregiver behaviors
• The role of provider-patient interactions
• The role of the community and health system
  
  

Specific types of errors can be linked to each of these three concepts.

Types of Safety Events in Ambulatory Care
 
Since face-to-face interactions between providers and patients in the ambulatory setting are limited and occur weeks to months apart, patients must assume a much greater role in and responsibility for managing their own health. This elevates the importance of including the patient as a partner and ensuring that patients understand their illnesses and treatments. The need for outpatients to self-manage their own chronic diseases requires that they monitor their symptoms and, in some cases, adjust their own lifestyle or medications. For example, a patient with diabetes must measure her own blood sugars and perhaps adjust her insulin dose based on blood sugar values and dietary intake. A patient's inability or failure to perform such activities may compromise safety in the short term and clinical outcomes in the long term. Patients must also understand how and when to contact their caregivers outside of routine appointments, and they must often play a role in ensuring their own care coordination (e.g., by keeping an updated list of medications).

The nature of interactions between patients and providers-and between different providers-may also be a source of adverse events. Patients consistently voice concerns about  coordination of care, particularly when one patient sees multiple physicians, and indeed communication between physicians in the outpatient setting is often suboptimal. Poorly handled care transitions (e.g., when a patient is  discharged from the hospital or when care is transferred from one physician to another) also place patients at high risk for preventable adverse events. When a clinician is not immediately available-for example, after hours-patients may have to rely on telephone advice for acute illnesses, an everyday practice that has its own inherent risks.

Underlying health system flaws have been documented to increase the risk for medical errors, particularly  medication errors and  diagnostic errors, issues that are certainly germane to ambulatory safety. Medication errors are very common in ambulatory care, with one landmark study finding that more than 4.5 million ambulatory care visits occur every year due to adverse drug events. Likewise, prescribing errors are startlingly common in ambulatory practice. Because the likelihood of a medication error is linked to a patient's understanding of the indication, dosage schedule, proper administration, and potential adverse effects, low health literacy and poor patient education contribute to elevated error risk.

The fragmentation of ambulatory care in outpatient settings increases the challenge of making a timely and accurate diagnosis. Indeed, a recent study estimated that 5% of adults in the United States experience a missed or delayed diagnosis each year. Recent data suggests that timely information availability and managing test results contribute to delayed and missed diagnoses in outpatient care. Although use of electronic health records in the ambulatory setting is growing, many practices still lack reliable systems for following up on test results -a problem that has been implicated in missed and delayed diagnoses.

Finally, while an increasing amount of attention has been devoted to measuring and improving the culture of safety in acute care settings, less is known about safety culture in office practice. Burnout and work dissatisfaction, particularly among primary care physicians, may adversely affect the quality of care. The AHRQ Medical Office Survey on Patient Safety Culture is designed to assess safety culture in ambulatory care, and its comparative database (which includes data from more than 900 participating practices) is freely available from AHRQ.

IMPROVING SAFETY IN AMBULATORY CARE

Improving outpatient safety will require both structural reform of office practice functions as well as engagement of patients in their own safety. While EHRs hold great promise for reducing medication errors and tracking test results, these systems have yet to reach their full potential. Coordinating care between different physicians remains a significant challenge, especially if the doctors do not work in the same office or share the same medical record system. Efforts are being made to increase use of EHRs in ambulatory care, and physicians believe that use of EHRs leads to higher quality and improved safety.

Patient engagement in outpatient safety involves two related concepts: first, educating patients about their illnesses and medications, using methods that require patients to demonstrate understanding (such as "teachback"); and second, empowering patients and caregivers to act as a safety "double-check" by providing access to advice and test results and encouraging patients to ask questions about their care. Success has been achieved in this area for patients taking high-risk medications, even in patients with low health literacy at baseline.
 

CURRENT CONTEXT

Regulatory efforts to improve safety have largely focused on hospital care; in fact, 12 of the 16 Joint Commission National Patient Safety Goals are considered "not applicable to ambulatory care." It seems likely that the increased attention to ambulatory safety being evidenced in increased research funding and output will be reflected in growing attention by accreditors and regulators in the not too distant future.

Diagnostic Errors
From Patient Safety Primer

BACKGROUND

The past decade's quest to improve patient safety has chiefly addressed quantifiable problems such as medication errors, health care associated infections, and postsurgical complications. Diagnostic error has received comparatively less attention, despite the fact that landmark patient safety studies have consistently found that diagnostic error is common. In the Harvard Medical Practice Study, diagnostic error accounted for 17% of preventable errors in hospitalized patients, and a  systematic review of autopsy studies covering four decades found that approximately 9% of patients experienced a major diagnostic error that went undetected while the patient was alive. Taken together, these studies imply that thousands of hospitalized patients die every year due to diagnostic errors.

An extensive body of research has examined the causes of diagnostic error at the individual clinician level. This work has been informed by the field of cognitive psychology, which studies how individuals process information and subsequently develop plans. As applied to health care, we have learned that clinicians frequently use heuristics (shortcuts or "rules of thumb") to come up with a provisional diagnosis, especially when faced with a patient with common symptoms. While heuristics are ubiquitous and useful, researchers have used categories developed in cognitive psychology to classify several types of errors that clinicians commonly make due to incorrect applications of heuristics:

PREVENTING DIAGNOSTIC ERRORS

Given that many diagnostic errors are caused by subtle biases in clinicians' thought processes, some diagnostic errors may be prevented by systems to mitigate the effect of these biases and provide physicians with objective information to assist with decision-making. Clinicians are frequently unaware of diagnostic errors that they have committed, particularly if they do not have an opportunity to see how their diagnoses turned out over time. Therefore, regular feedback to clinicians on their diagnostic performance is essential.
Unfortunately, reliable decision support or feedback systems do not yet exist. One of the earliest uses of information technology in medicine was decision support for clinical diagnosis, particularly for notoriously highrisk and difficult diagnoses such as acute myocardial infarction. However, computerized diagnostic decision support has not yet been proven to improve overall diagnostic accuracy, although active research continues in this area.

The autopsy has been the "gold standard" for diagnosis since medicine became a profession, but autopsy rates have progressively declined over the past few decades, to the point where a recent editorial raised concern over the "vanishing nonforensic autopsy." It is recommended that teaching institutions perform autopsies on 25% of inpatient deaths, but few academic hospitals reach this benchmark. The result: not only are clinicians not receiving feedback on their diagnoses, but pathologists are performing fewer and fewer autopsies during their training.

More progress has been made in addressing systems causes of diagnostic error. Information technology has improved clinicians' ability to follow up on diagnostic tests in a timely fashion, which should reduce the incidence of delayed diagnoses. Structured protocols for telephone triage, teamwork and communication training, and increased supervision of trainees may also lead to improved diagnostic performance. However, studies evaluating the effect of these interventions on diagnostic error rates are lacking.

Finally, there are aggressive efforts to teach clinicians and trainees about the relevant parts of cognitive psychology. The principal goal is to engage clinicians in "meta-cognition" (reflecting on their own thinking), with the hope that they will catch some of their own misuse of heuristics before they cause harm. There are few data to prove that this interesting strategy actually decreases error rates and harm. Recent systematic reviews have assessed the evidence base of interventions to prevent cognitive errors and systems problems that can lead to diagnostic error.

CURRENT CONTEXT

Measurement of diagnostic accuracy is not performed or required in most clinical settings, although fields such as pathology and radiology routinely perform quality assurance by having clinicians independently review biopsies or images. Although calls for increasing the autopsy rate are increasing, as yet the recommended autopsy rate of 25% remains only a suggested benchmark and not a mandate. Some organizations, particularly physician-certifying boards like the American Board of Internal Medicine, have emphasized the possible role of board certification as a measure of diagnostic skills, since it is difficult to measure such skills through traditional tools used to measure quality and safety. In fact, current quality measurements do not take diagnostic accuracy into account at all, meaning that organizations could score well on quality measures even if many patients receive the correct treatment for an incorrect diagnosis. Recognizing this, a recent commentary termed diagnostic error "the next frontier for patient safety" and called for more research into solutions for individual and systems causes of diagnostic error.