Physician liability: Your team, your legal risk
■ When health care team members drop the ball, it's often doctors who end up in court. How can physicians improve such care and avoid risks?
By Alicia Gallegos — Posted July 29, 2013
Leadership consultant Daniel O'Connell, PhD, compares a successful health care team to a well-coordinated football squad. Led by a quarterback, the players discuss the upcoming play, determine their roles and shift accordingly as the game begins.
But as in sports, health care teams that exhibit poor communication and faulty handoffs can encounter disastrous results. In the health care context, such missteps can lead to adverse outcomes and lawsuits, he said.
“It's almost like a football team that didn't have a briefing or a huddle and all of a sudden you have 11 people going out on the field when precision is called for,” said O'Connell, a clinical psychologist and professor at the University of Washington School of Medicine. “That's where a team can be held liable, because a plaintiff's attorney can [argue] a similarly trained team would have been expected to recognize” the impending fumble and correct the problem.
More than ever, doctors are facing a growing push toward team-based care and delegation of duties within the medical team. But legal experts warn that such team models pose legal risks for physician leaders. For instance, physician supervisors may land in court because of actions by physician and nonphysician team members.
“We've seen an uptick in cases that involve advanced care practitioners,” said James W. Saxton, an attorney and chair of the Health Care Litigation and Risk Management Group at Stevens & Lee in Pennsylvania. “Each year, there are more claims where the supervision is not as tight as it should be. Often there's a claim [against physicians] for failure to supervise members of the team.”
Recent research highlights the effect failed teamwork can have on care. A 2013 Joint Commission report found that of 901 sentinel events in 2012, 62% were related to poor leadership. Poor communication contributed to 59% of sentinel events. (The total percentage was higher than 100% because the outcomes had multiple root causes.)
A review of 2,466 claims between 2007 and 2011 by The Doctors Company found that communication failures among physicians contributed to 7% of patient injuries, and failures or delays in obtaining consultations/referrals led to another 7% of injuries. Insufficient or lack of documentation led to an additional 12% of injuries, the study found.
Focusing on successful team communication and recognizing the weak links in the team can prevent poor outcomes and lawsuits, said Laura Jacobs, MPH, executive vice president at The Camden Group, a national firm that provides management and consulting services to the health care industry.
“Where we've seen breakdowns or inefficiency is where it's not clear what the roles and responsibilities are,” she said. “How independent are the midlevel practitioners going to be? What are the expectations? Ultimately, it is the responsibility of the physician to know what's going on in his or her practice.”
Supervision breakdowns lead to claims
Failure-to-supervise claims are among the most common legal allegations stemming from failed team care, legal analysts say. Such claims arise when physician leaders allegedly err in monitoring lower-level health professionals.
For example, a Utah family physician was sued by the family of a patient in 2010 for failing to properly oversee a nurse's prescription decisions. The Utah Supreme Court in 2012 ruled the family had a right to sue the physician, despite the doctor never having seen the patient.
“In many of these malpractice lawsuits, if you were the attending physician or you were the supervisor, you are going to be at blame or more at blame than those under your supervision,” said Martin L. Kern, executive director of Academic Group, a health care risk management firm in New York.
Vicarious liability and administrative negligence are other claims to which physicians can fall victim. Vicarious liability is a legal doctrine that assigns liability for an injury to a party who did not cause the injury but who has a particular legal relationship to the negligent party. For instance, employers are frequently sued for the actions of their employees.
Administrative negligence refers to a supervisor's failure to review, develop or refine certain health care policies and procedures.
In Deya v. Hiawatha Community Hospital et al., a family sued Kansas-based Hiawatha Community Hospital and a physician medical director for such a claim after their son sustained a brain injury after birth. The family said the doctor failed to develop and initiate proper policies and protocols for newborn care at the hospital. A Kansas district court in 2011 ruled in favor of the family.
What makes matters worse for physicians sued under these legal theories is that team members often blame one another after a lawsuit is filed, Saxton said. Adversarial attitudes among group members lead to more time and expense for health professionals involved in the suit.
“The last thing you want in the courtroom is multiple defendants — all colleagues — perceived to be pointing fingers at each other,” he said. “That doesn't help anyone, except the plaintiffs' attorneys.”
What fuels communication failures?
Not surprisingly, lack of communication is a top reason for team mishaps and subsequent lawsuits. Frequently, clinicians at various levels assume certain information has been explained to other health professionals or that each person has reviewed the same records, Kern said.
“A lot of it has to do with training and communication skills in handoffs,” he said. “There are too many assumptions that the patient information has been transferred to the other doctor or to the nurse. It's not always there.”
Poor documentation among team members enables such miscommunication and potential negligence, said Todd W. Smyth, a South Carolina medical liability defense attorney and vice chair of the Defense Research Institute's Medical Liability Committee. DRI is a national trade association representing defense attorneys.
Health care professionals not only should record what treatment they provide to patients, but also record the role that each health professional is playing, he said.
“Communication and documentation is key,” Smyth said. The responsibilities of health professionals need to be clear.
A hierarchical culture also can prevent successful team interactions, said L. Gregory Pawlson, MD, MPH, an internist and risk management consultant at Stevens & Lee. In negative work environments, some team members can feel they lack the status to share their views on patient care, he said.
“Every member of that team has to be willing to say, 'We're going too slow,' or 'Whoa, did you just see that blood pressure drop?' ” he said. “There has to be a clear lead, but that lead has to know when to change. And the other people [who] are participating in the patient's care have to know when to speak up when they're not in charge at the time.”
Effective interaction among members
The first step to fixing a subpar performing team is assessing the group's communication and interplay, Dr. Pawlson said. Ask team members how they feel about the practice's success and what can be improved.
“You don't know until you measure it,” he said. “You might think the culture is fine and that you have an incredibly open practice, and then other [team members] respond to an anonymous survey and you find out that people are scared to speak out.”
Physicians should lead by example, Dr. Pawlson adds. If they realize the culture needs to be changed, they must start with themselves. For example, they can ask other team members about their opinions or be the first to follow new protocols such as checklists, he said.
“You start with your own actions, and that creates perceptions and beliefs by other people, and that influences their actions,” he said. “If you want an open culture, you have to act in both formal and informal ways that support openness.”
The most successful teams are able to analyze their actions when things go wrong and discuss how teamwork can be better, Jacobs said. The bottom line is to recognize the mistake and motivate the team to improve, she said.
“When you look at some of the higher performing groups, they have a culture of continual improvement and continuous learning,” she said. “They will do team huddles, or review when something went wrong. [There is an] atmosphere of, 'We're not here to blame everybody, but to look at where the breakdown occurred in the process.' ”
Identifying a team's weak links is essential to prevent calamities, O'Connell said. Too often, physicians and others ignore the team's naysayers or make excuses for those dropping the ball at their end, he said.
“We are our brothers' keeper,” O'Connell said. “If someone on the team is not doing a good job, our patient satisfaction scores are going to go down. We're at greater risk for adverse outcomes and greater risk for a lawsuit. So it's worth that investment of improving communication. The leader has to make” that first step.