Recently, MagMutual, a medical liability insurance company governed by the Medical Association of Georgia, has invested $50 million dollars in new patient safety initiatives. The investment came as a result of a net gain in MagMutual’s profits resulting from an overall reduction in claim activity against its insured’s since 2005. The company currently insures over 18,000 physicians in Georgia and will utilize all of their historical claim data to develop statistical analyses in an effort to promote patient safety across all levels. The development of safety initiatives are paramount to reducing physician liability, and the framework for this type of system-based claim analysis is well evidenced in the recent past, as is its success.
Malpractice reform often focuses on the legal and financial outcomes of tort law. Historically, government legislation has focused on patient compensation rather than physician negligence. Formal litigation, mandatory arbitration, and dispute resolution have been the only legal measure of accountability in medical malpractice law. New reform measures are going back to the basics, that is, patient safety. Obviously, with fewer incidences of negligence, the percentage of malpractice cases would be reduced. The examination of malpractice litigation proceedings provides valuable information that peer review cannot–the participation of the injured patient. Through discovery, the two parties entangled in the litigation have the ability to access and to probe into the incident in order to uncover, challenge, and contradict the information that becomes available. In contrast, peer review is often biased and the basis of injury rationalized away. Many physicians are hesitant to criticize a colleague for reasons of respect and also to prevent loss of referrals. For these reasons, analyses of legal cases are preferred over peer review reports as a means to develop safety guidelines. By critically examining the case from all sides, including that of the injured party, more information can become available and can be used to prevent future errors.
In 1999, the Institute of Medicine (IOM) released a report entitled, “To Err is Human: Building a Safer System,” which outlined a standard of care based upon systems-reporting, similar to the efforts of MagMutual with their new Patient Safety Institute. The IOM report states that tort liability is necessary as a method of accountability in healthcare and that patient safety should be at the forefront of liability reform. Additionally, the Journal of the American Medical Association released an editorial opinion that medical error was not considered a popular subject among physicians but that previous incidences should be utilized to ensure that future healthcare efforts safer. Although these opinions and reports were issued years ago, little progress has been made in the patient safety effort. The IOM report urges that physicians must be “proactively motivated to accept legal accountability as a necessary component of safety,” which is contradictory to the message of liability immunity suggested by many tort reform advocates. Medical Associations, including the American Board of Internal Medicine and the American Academy of Orthopaedic Surgeons, are also recognizing the benefits of analyzing reports and utilizing the information to prevent future liability. These groups take the position that physicians should disclose errors and compensate patients accordingly as a measure to ensure public trust, as well as to improve the healthcare experience by limiting individual practitioner liability and reducing error.
The current model for patient safety initiatives was set forth by the American Society of Anesthesiology (ASA). In 1999, anesthesiologists were plagued with malpractice cases that drove liability costs up and began to erode public trust. In their attempt to correct patient safety errors, the ASA looked directly to closed liability claims. From this data, new patient safety standards were issued by the ASA, and the results were dramatic. Anesthesia-related deaths dropped from one or two per 10,000 procedures to one per 200,000 procedures. This caused malpractice premiums to drop drastically. As a result of the ASA patient safety standards, this model is now the benchmark for patient safety. A similar model has also been instituted by the obstetric community, which has reduced the average compensation per payout from $27 million to $2.5 million over a five-year period.
Previous studies recognize that there is currently little validation of guideline success in the published literature, as well as no definitive evidence that developing patient safety initiatives can improve malpractice claim rates and subsequent compensation. There are issues with the static nature of previously developed safety guidelines and how those should be addressed. Due to changes in medical technology, any implemented changes should be reviewed and evolved to reflect new procedures and/or revisions to current procedures. However, this is not always the case. It is generally accepted that, although analysis of closed-claim data is beneficial, there is not a direct correlation to a reduction in litigation costs.
MagMutual’s patient safety initiatives are designed to assist its physician members with developing appropriate guidelines by which they can improve their patient experience. At least two physician medical groups have established that these types of systems analysis of claim data can be successful in reducing malpractice litigation rates, subsequently reducing healthcare costs overall. With additional research, the true rate of success of patient safety guidelines can be better understood and measured.
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