Richard Morrison, regional VP of government and community relations for Florida Hospital in Orlando, states, “It’s a miserable situation; this malpractice crisis is wreaking havoc on us” (26). Lars Houmann, Florida Hospital’s executive VP and COO, says he believes similar concerns about physician supply will have a ripple effect on hospital construction in other vulnerable states: “I think it’s unprecedented for an institution holding a new CON not to build…because the physician supply isn’t adequate. It’s ugly, doctors are leaving this state, they are retiring early” (26).
The impact of rising medical malpractice costs and risk of lawsuits against physicians have cast an onerous pall over the medical profession. Physician attitudes are being shaped by this crisis. The general public no longer views physicians as “benign healers.” Much publicity has been made of statistics indicating that American doctors kill over 80,000 patients a year due to medical error (Couch 30). Many physicians view patients as adversaries, as proverbial “lawsuits waiting to happen.” Physicians may be overly preoccupied with making a medical error, and the consequences. “One consistent theme seems to emerge from all…studies of physicians in practice: the fear of personal inadequacy and failure” (Benbassat 53). This fear has been compounded by recent developments in the malpractice arena.
“Fear of criticism and litigation has also been claimed to affect physicians’ attitudes toward their patients… the most common functional consequence of fear of litigation appears to be the tendency toward defensive practice, characterized by ordering diagnostic tests even when clinical judgment deems them unnecessary…”(53). According to Benbassat, 60% of polled physicians claimed to have adopted risk-avoidance practices. Defensive medicine may be a very likely response in the unique and dangerous clinical setting of the ED, where physicians do not have ongoing relationships with patients, and patients do not know the physicians delivering the emergency service.
The current tort system seem unfair to many emergency physicians. Even if medical treatments and decisions were appropriate and not responsible for a patient’s adverse event, the physician can still be sued for the bad outcome. Physicians pay exorbitant amounts of money for malpractice insurance; yet receive very little by way of protection or defense against litigation. All too often in a lawsuit the defense attorneys and insurance companies are quick to settle the case rather than risk a lengthy and expensive court trial. In settling cases which could be argued favorably for the defense, the physician is deprived the opportunity to defend his/her actions in court. For the physician a settlement is a losing proposition. The settlement is permanently recorded against the physician on the national practitioner data bank. A physician with two or more settlements is at risk for being denied malpractice insurance coverage or if coverage is available, the cost is unaffordable.
“Physicians quickly realize that in a malpractice allegation there is a strong correlation between severity of disability and jury outcome, but there is little correlation between negligence and outcome” (Couch 30). Lanser states, “Today the perception is that an adverse outcome equals malpractice.” This prompts strong reactions from physicians who perceive this as an injustice in the system. “In only one-sixth of the claims did we find persuasive evidence of negligent injury on the record…a sizable financial and emotional burden is imposed on physicians and their insurers… due to mistakes made by patients’ lawyers” (30). Added to this perception is the fact that the jury system is designed to exclude health care providers from the process. “As a result, those who are best suited by training and experience to understand the complexities of medicine seldom serve as jurors”(30). In malpractice cases the physician is not “judged by a jury of peers,” but more likely by patients who have their own biases and experiences with physician burnout. “Burnout is a state of physical, emotional and mental exhaustion that results from intense involvement with people over long periods of time in situations that are emotionally demanding” (Sotile 314). Increased malpractice insurance expenses, inability to increase income and the constant threat of lawsuits have greatly contributed to physicians stress and burnout. Symptoms of burnout impair behavioral performance (316). These symptoms increase the likelihood of physician error, which increases the risk of lawsuits—thus creating a vicious cycle.
POSITIVE RESOPNSES TO THE CHALLENGES FACING AMERICA’S EDS
The Harvard Medical Practice Study implies that there are too few lawsuits, with over 80,000 patients killed each year by America’s doctors. Many experts believe that these adverse events are caused by substandard, antiquated systems of healthcare delivery, poor communication among healthcare team members, in attention to risk management issues and lack of a patient-centered approach. Nationally many physician leaders have responded to the need for improvement in healthcare delivery systems. The Institute of Healthcare Improvement (IHI) exemplifies the growing trend in this nation towards improving the quality of medical care. The IHI focuses on creating awareness of the problems in healthcare, provides information and education on innovative methods for improvement and how to measure outcomes. “Physicians can play a critical role in finding, developing, and implementing safety improvements” (Schoenbaum 51). Collective physician effort was especially successful for anesthesiology. “In the mid-1980s, high malpractice awards made anesthesiologists pay high premiums that were increasing faster than for any other specialty. After the American Society of Anesthesiologists adopted practice guidelines to reduce patient harm, death and premiums have both decreased dramatically” (51). Anesthesia now is the only health sector to achieve “six sigma” quality, or fewer than 4 deaths per 1 million exposures. In contrast surgeons leave instruments or sponges in 1500 surgical patients each year---more than 15 times the six-sigma rate (52).
Physicians must take responsibility for systems safety and improvement in clinical quality. This requires change in culture, behavior and internal organization. “In the long run, better quality and safety can save money. Up front, however, time, effort and financial investment are required” (52).
4M Emergency Systems Inc. operates 15 emergency departments and urgent care centers in northeast Ohio and West Virginia. Recognizing the need for quality improvement (QI) and patient safety, in 2002 this company enhanced their risk management/quality improvement division. Thus began a formal process of investigation and research. The QI team identified specific high-risk areas to the practice of emergency medicine. They visited each UES emergency department/urgent care center and performed a detailed analysis of staffing, processes, protocols, systems implementation and constraints. The QI team interviewed department physician and nursing leaders. After analyzing the data and determining areas for quality improvement, the team created a series of initiatives and programs that were implemented in each of the emergency departments. These included:
· Standardized “difficult airway carts” for pediatric and adult patients
· Clinical guidelines to standardize treatment of conditions such as MI and stroke
· Converting to electronic discharge instructions
· Mandatory customer service training for all emergency physicians
· Formalized sign out system for physicians at change of shift
· Institution of medical record documentation training
· Implementation of clinical “risk reminders” to assist physicians in creating differential diagnoses
· Distribution of palm pilots loaded with clinical and pharmacological information for quick reference
· On line continuing medical education
· Institution of a journal club
According to ACEP the average jury award in medical malpractice cases has tripled since 1994. The number of medical liability claims rose 5% nationwide between 1996 and 1999. During the same time frame, the average jury award in medical liability cases increased by 76% (ACEP fact sheet 2). ACEP cites an out-of-control litigation system as one reason for the current malpractice insurance crisis. Seven of the top awards in 2001-2002 were medical liability cases totaling $3 billion. In 2002, 52% of all awards were for $1 million or more and today the average award is $3.5 million (2). Possible solutions:
Innovations in ED Care
Some EDs have developed innovative methods and programs to handle current public demand. Cardiovascular disease is our nation’s number one killer. In response to the high incidence of heart disease, St. Agnes HealthCare in Baltimore opened the first Chest Pain Emergency Department (CPED) in 1981 (Gill 4). These units are designed to rapidly identify and treat those patients with coronary disease as the etiology of their chest pain. “Since 1981 the spread of CPEDs has been significant, and today more than 800 hospitals have or are about to introduce such units” (4).
Fast Track—Many EDs have implemented a “fast track” area designed to rapidly diagnose and treat patients with minor medical problems. These areas can be physically separate from the main emergency department, reserved for the more acutely ill or injured patients.
Observation Units—Some emergency departments have designed “observation units” within their confines and under their direction. Patients who require prolonged medical observation for certain illnesses (asthma attack, allergic reaction, dehydration, alcohol intoxication, minor head injury etc.) yet are not ill enough to warrant lengthy hospital admission are candidates for these observation units. “Observation units are often used as a way to lower costs and increase the quality of care in outpatient facilities” (ENA Position Statement). As of 2002, about 33% of U.S. emergency departments had observation care beds (ENA 1).
“Dramatic technological advances—especially information systems…can be expected to impact the practice of emergency medicine” (Case 25). Computerized and integrated electronic systems for patient records have proven immensely beneficial to institutions such as the Louis Stokes Veteran’s Affairs Medical Center (VAMC) in Cleveland, Ohio. The electronic medical record has obvious advantages. In-hospital chart documentation, ancillary study results, past patient history, and outpatient visit records from community VA facilities can all be obtained with a few clicks and keystrokes. Emergency departments are slowly making the transition to an electronic medical record. The Internet may soon become the primary candidate for information infrastructure for the communication and management of health care information (25).
“A communication system incorporating real-time audiovisual capability and, in some cases, remote robotic devices constitutes the technological platform for telemedicine” (25). At a minimum, it expands the potential geographic reach of a practitioner and raises the possibility of remote consultation (25).
Emerging technologies will no doubt have a profound impact on emergency medicine. “Technology will help decrease the time costs of an Ed visit for patients by allowing emergency physicians to function as information integrators and to provide less expensive full-price services. It will assist emergency physicians in providing such services by collaborating with mid-level providers at remote geographic locations”(25). As a result of technological advances, emergency physicians will be able to expand their roles and provide improved health care to the people they serve.
Despite financial, economic and political pressures, our nation’s EDs continue to stand strong. Physician and nurse shortages, unsubsidized care of the indigent/ uninsured population, medical malpractice burdens and reduction in number of facilities despite significant increases in ED patients impose a mighty burden that stretches every fiber of the health care safety net. Until this nation addresses the 43 million people without health care insurance, physician and health care leaders must face these challenges and issues to ensure that America’s safety net remains viable and available to everyone.