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 Johns 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 (it 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 can you show us that you didn’t know?”

But the product’s real value, according to Dolin, is not in retrospectively proving in court that a patient was aware of the risks but getting out in front of the problem by more effectively ensuring that patients actually understand what they’re getting into.

“Surgeons tend not to be great communicators,” Dolin said. “And there are the constraints of modern health care. Doctors have limited time to explain to patients, in language they understand, all the necessary information about a procedure. … Emmi is a way to proactively manage your risk by doing the right thing for the patients.”

While the product’s track record in court is yet to be established, 96 to 98 percent of 311 patients who used Emmi reported to a company surveyor that the product “provided all the information I wanted.”

One Emmi user is Dr. Colman Kraff, director of refractive surgery at the Chicago-based Kraff Eye Institute, one of the largest Lasik surgery practices in the Midwest. Kraff, a consultant for Rightfield, helped develop and beta-test the content for the Emmi Lasik module.

“The standard informed consent process involved spending time with patients, answering their questions before they had surgery, when they came in for pre-operative measurements and evaluation,” Kraff said. “[Emmi] allows patients to ask questions in a nonthreatening environment, and it allows the doctor to review questions beforehand. … Patients really like this; they like the interactivity of it.”

Kraff said he requires all of his patients to do the tutorial and that between 95 and 97 percent of them do.

“The questions patients ask are similar” to the standard informed consent process, Kraff said. “It’s a different way to handle the questions. More patients feel free to ask questions because they don’t feel they’re taking up the doctors’ time. When people are in the doctor’s office, they feel nervous or they forget what they wanted to ask.”

More than 300 surgeons use Emmi, which has programs available for a wide range of specialties including obstetrics and gynecology, plastic surgery, gastric bypass (see accompanying graphic) and oral surgery. Rightfield plans to have presentations available for more than 100 procedures by the end of the year, according to a company news release.

As with everything else in American health care, determining who will bear the cost remains a sticking point. Some brokers, such as Houston-based Professional Medical Insurance services are offering it to hospitals and doctors’ practices as an add-on to the medical liability insurance they sell. The program costs between $5 and $20 per patient in addition to an annual subscription fee that varies by practice size.

“I think going through the insurers is really the way to go,” Dolin said. Malpractice insurers frequently offer premium discounts to doctors who attend risk-reduction seminars and workshops, but whether doctors use what they learn back in the operating room remains an open question. Rightfield currently has one malpractice insurer as an Emmi customer, the oral surgeon risk-retention group OMS National Insurance Company.