Reviews of Claims Against Surgeons Reveal Avoidable Causes of Litigation

1
Reviews of Claims Against Surgeons Reveal
Avoidable Causes of Litigation

• Maine Chapter
• American College of Surgery
• Annual Meeting
• May 29, 2009

2
Problems

• Flawed tort system
• Poor performance on the part of surgeons
• Claims with merit - unsafe care
• Claims without merit

3
Purpose

• To enhance our awareness of the causes of unsafe
  surgical care and non-meritorious claims through
  the review of closed claims against surgeons
• Disclaimer The opinions I express here today
  may or may not represent the position of the
  American College of Surgeons.

4
Methods ACS Claims Reviews

• Review of 460 closed claims against general
  surgeons
• Designed and conducted by surgeons
• Claims characteristics
• Closed in 2003 or 2004
• National distribution
• Exclusions
• Costs lt 25,000
• Insufficient information
• Reconciled and statistically analyzed

5
Procedures
6
Behavioral Practice Violations
68
Behavioral elements of care are those elements
that require diligence and time to accomplish
ordinary tasks and are apart from knowledge and
skill.
7
Behavioral Skills vs Behavioral Diligence

• Behavioral skills
• Interpersonal
• Communication
• Cognition
• Behavioral diligence

8
Behavioral Practice Violations
9
Knowledge Skill vs Behavior

• Medical Knowledge and skill
• Interplay between behavior, cognition, judgment,
  and knowledge is complex
• Behavior is the most deficient of these elements
• failure to conscientiously think to apply
  knowledge as opposed to failing to possess
  knowledge about which to think.
• failure to apply knowledge and skill as opposed
  to the failure to possess knowledge and skill

10
Characteristics of Cases With and Without
Behavior Violations
¹ P-value is based on Chi-Square test ² There
were no significant differences between those
with or without behavioral violations by gender,
wound class, functional health status, or known
co-morbid conditions.
11
Diagnosis Adverse Events With and Without
Behavior Violations
1 P-value is based on Chi-Square test
12
Treatment Adverse Events With and Without
Behavior Violations
1 P-value is based on Chi-Square test
13
Preventability of Complications By Occurrence of
Behavior Violation With and Without Technical
Misadventure
There are numerous complications among cases
involving technical errors that are caused or
needlessly escalated by behavioral violations
14
(No Transcript)
15
(No Transcript)
16
Performance in OR Surgeons Technical Skills

• Insufficient skills 11
• Scope of practice violation 10
• Adequate skills 48
• Documented benchmark performance
• Profound factors beyond the surgeons control
• Unable to judge 41

Technical perfection is not required behavioral
diligence is an imperative.
16 of claims were caused by technical
misadventures
17
Venue of Most Deficient Care
Among 460 claims in the study 390 involved
deficient care. In 212 of these,
the venue where the deficiency(ies) occurred
could be determined.
18
Standard of Care and Deficient Transparent
Communication
ACS Closed Claims Study
19
Summary

• Behavioral deficiencies cause 68 of claims
• 16 of claims are caused by technical errors
• Surgeons skills are insufficient in 11 of
  claims
• Good behavior is a catalyst for knowledge and
  skill
• 67 of claims stem from pre- and post-op care
  18 from OR care
• 37 of the ACS claims were against surgeons who
  meet standards 33 of these were preventable
  with good communication

20
Conclusions

• OUR STRICT ATTENTION TO THE BEHAVIORAL ELEMENTS
  OF CARE WILL CATALYSE KNOWLEDGE AND SKILL,
  MINIMIZE ERRORS AND COMLICATIONS THAT LEAD TO
  MERITORIOUS LAWSUITS, AND MITIGATE ANGER AND
  MISTRUST THAT LEAD TO CLAIMS WITHOUT MERIT.