Managing Patient Expectations Key to Reducing Malpractice Risk

While insurers and lawyers groups have debated the merits of capping medical malpractice awards in the statehouses and on Capitol Hill, the reality of soaring jury awards, insurance premiums and seemingly out-of-control litigation continues largely unabated. The push-back from doctors has come in several forms, most famously in the widely reviled practice of so-called defensive medicine, leading to unnecessary and costly tests that may reduce the doctors’ risk but fatten up the system’s bottom-line price tag.

Some doctors and insurers have found that sometimes all it takes is a simple apology to set things right. According to a May 18 story by Rachel Zimmerman in The Wall Street Journal, institutions such as the Dana-Farber Cancer Institute in Boston and Baltimore’s John Hopkins Hospital have told their doctors to admit their medical mistakes in an attempt to assuage the anger and helplessness that often drives malpractice lawsuits.

Now, a fledgling Chicago-based software firm, Rightfield Solutions, has targeted another key area that could help reduce tort risk: the effective management of patients’ expectations. An April 2003 study in the New England Surgical Society’s Archives of Surgery examined 30,000 medical records and found that in only 1 percent of cases had the doctors been truly negligent.

“Lawsuits are not about bad outcomes,” according to Linda Crawford, the lead author of the study. “They are about expectations.”

Crawford, who has taught at Harvard Law School, said that 40 to 60 percent of all malpractice suits allege failure to obtain proper informed consent. This is where Rightfield’s product, called Expectation Management and Medical Information (or Emmi, for short), comes in.

Emmi is kind of an online tutorial about a patient’s surgery. Filled with clean, colorful graphics and language aimed at a sixth-grade reading level, the tutorial walks the patient through a basic anatomy lesson, the reason for the surgery, pre-operative instructions, the actual procedure, recovery, the risks and benefits, and lastly alternatives. At any point, a patient can choose to send her doctor a secure message with a question or concern.

There is an online log kept of the entire tutorial denoting that the patient went through the process, what questions she asked, and if she said she understood the risks and benefits of the surgery. Though the effectiveness of the product as a legal defense has not yet been tested in court (the product was released only last March), Rightfield CEO Jordan Dolin said demonstrating Emmi as proof of informed consent versus a dry, legal document is sure to be more successful. Dolin said the company’s legal consultants have assured him that Emmi’s archived log of patient interaction with the product is admissible in court.

“This kind of shifts the burden a little bit,” Dolin said. “You claim you weren’t told, but you acknowledged all the risks. How you can you show us that you didn’t know?”

Editor’s note: To read the rest of this story, see the June 7 print editions of Insurance Journal Midwest or West.

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