Report links rising medical claims to communication breakdowns

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By Donna Walter
Dolan Media Newswires

Communication failures by health care professionals may contribute to the soaring litigation against providers, but some medical malpractice defense lawyers dispute the existence of such a direct relationship.

Researchers report that because of communication breakdowns, providers’ malpractice claim payouts from 1991 to 2010 in the U.S. more than quadrupled across all medical specialties, rising from $21.7 million to $90 million. The study, based on information from the National Practitioner Data Bank, was published last fall in the Journal of the American College of Radiology.

Researchers particularly found that the failure to communicate diagnostic test results is generating more claims against health care providers.

Researchers also studied claims data compiled by Controlled Risk Insurance Co./Risk Management Foundation, which insures the Harvard medical community and institutions. Between 2004 and 2008, communication failures accounted for 7 percent of that insurer’s total legal costs.

The most common contributing factors in cases associated with communication problems were failing to notify the patient of a test result, telling the patient an incorrect result and failing to notify the referring clinician of a result.

Some medical malpractice defense lawyers, however, see a simple explanation for the increased number of communication errors: The number of medical tests has increased.

“It is unquestionably true that more tests are being ordered today than there were 10 years ago and that the tests being ordered are much more sophisticated that they were 10 years ago,” said Kevin O’Malley, of Greensfelder, Hemker & Gale, St. Louis. “That, coupled with the increased speed of life, makes this communication issue even more critical.”

Becky Miller, executive director of the Missouri Center for Patient Safety in Jefferson City, said communication failures, either among health care practitioners or between physician and patient, “are the root cause of most of the errors that happen.”

“It’s hard to teach people how to communicate well when they’re busy health care professionals,” she says.

Between providers

Often when communication failures occur, they are in the context of a physician not receiving test results from, for example, a radiologist, said David Ellington, of Brown & James in Missouri. To help stem these errors, the American College of Radiology has issued practice guidelines.

First among the guidelines is the idea that exchanging information is a reciprocal duty, Ellington said.

“If a radiologist is required to interpret an MRI study, it’s very helpful for him or her to have an idea of what that clinician is looking for,” he said.

For example, if a patient complains of neck pain and the doctor suspects an infection, the radiologist should be informed of that fact. Knowing what the physician is looking for helps the radiologist when performing the test and when communicating the results.

When it comes to transmitting the information to the ordering physician, the radiologist should make a practice of doing so in a detailed written report, he said.

The American College of Radiology also has standards for non-routine communications for situations with emergent issues that require immediate attention. In those cases, the radiologist should talk directly to the ordering physician by telephone or in person, Ellington said.

“If it’s communicated by a text, pager, voice message, facsimile, we don’t know that the person that needs that information now is getting that information,” he said. Then the radiologist should document the communication, he says.

To Ken Brostron, of Lashly & Baer, documentation is the key.

“Back when I started doing medical malpractice defense, a lot of it was oral. … Over the years, certainly the documentation has gotten a lot better,” he said.

The physicians ordering tests bear some of the responsibility for seeing to it that they receive test results. One way is for the physician to keep a log of what tests have been ordered, Ellington said.

“It simply would have enough identifying information that you know if it’s more than five days or a week and you haven’t gotten the results back, that gives the ordering physician another mechanism to make sure it doesn’t fall through the cracks,” he said.

Some physicians require that all test results be placed on their desks for review, O’Malley said, before being noted in the patients’ charts. The physician would review the report, initial it and note that the patient was called or will be called and by whom.

How a physician keeps track of tests that have been ordered doesn’t matter as long as the system works, he said.

“There are probably as many good systems as there are good physicians,” he said.

Miller said there has to be a process in place so physicians can track the tests they’ve ordered and what has been done with the results. That may mean using an automated system or a checklist, she said.

It’s important to make sure “everyone involved in the process knows what [the system] is and adheres to it,” she said. “You need to track when there’s a failure in the system and what steps need to be in place to improve it.”

With patients

Two separate parties need to receive test results — the ordering physician and the patient, O’Malley said.

But the way each receives the information should be entirely different, he said.

Humanity has to be part of communicating with patients, he said.

“There are test results which are hugely alarming but ambiguous,” he said. For example, a test result reports a suspicious finding.

“The language used to communicate between and among the physicians can be highly technical but could also be very alarming to the patient if simply faxed to him or her. But that same test result … when translated through the ordering physician … perhaps shouldn’t be alarming,” he said.

Although sending raw data directly to patients would ensure that they get the test results, O’Malley doesn’t recommend it.

“If you provide the patient with a test result,” Brostron added, “the patient might not understand [what it means]. That would fall back onto the physician who ordered the test to talk with the patient about that.”

Although patients don’t have the legal duty to follow up with their physicians when they’re expecting test results, the lawyers say they should act as partners in their own health care.

“The best and safest way to be a patient is to partner with the doctor,” O’Malley said.

Sometimes patients are told that they will hear from the physician’s office only if there is a problem. But Brostron said it’s still OK for patients to call to ensure that the test results are normal.

“I don’t think it’s fair to put it totally on the health care provider,” Ellington said. “Patients have responsibility for their own health and well-being. They need to be an active participant in their own health care and an advocate for themselves.”

While jurors have a “heightened expectation” of good communication among health care providers, they also expect patients to be active participants in the process, he said.