Risk Management and Medical Liability
A Manual for Indian Health Service and Tribal Health Care Professionals
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Section One: Health Care Risk Management
Risk management refers to strategies that reduce the possibility of a specific loss. The systematic gathering and utilization of data are essential to this concept and practice. Risk management programs consist of both proactive and reactive components. Proactive components include activities to prevent adverse occurrences (i.e., “losses”), and reactive components include actions in response to adverse occurrences. In both cases, the risk management process comprises:
- Diagnosis—Identification of risk or potential risk.
- Assessment—Calculation of the probability of adverse effect from the risk situation.
- Prognosis—Estimation of the impact of the adverse effect.
- Management—Control of the risk.
All organizations need to address their particular risks. In this Manual, we will discuss risk management as it relates to medical care and medical malpractice tort claims within the federal system. On the proactive side, risk management techniques will help improve the quality of patient care and reduce the probability of an adverse outcome turning into a medical malpractice claim. With reactive risk management, it is important to analyze the tort claims that have occurred for system issues that require intervention. The overall goal in healthcare risk management in both situations is to minimize the risk of:
- harm to our patients.
- liability exposure of our health care providers.
- financial loss to the Agency.
Malpractice tort claims are a fact of medical practice. Studies have shown, however, that most cases of iatrogenic complications or negligence never enter the tort system, and many tort allegations of negligence have no merit. Additionally, there is little evidence that the malpractice litigation process identifies bad doctors or deters malpractice. Therefore, efforts need to be directed toward quality improvement programs and risk management rather than disciplinary measures. As a health care delivery system, Indian Health Service and Tribal health programs must continually strive to ensure that the highest possible quality care is provided to the patients we serve at all times.
Indian Health Service (IHS) risk management (RM) program activities are addressed at both the service unit and Agency level. For the service unit, a RM or quality assurance committee often serves as the focal point for the overall program, and receives and acts upon information provided through personal contacts and reports. The following elements are generally found within a local RM Program, although other activities may be included as deemed necessary:
- Incident identification and reporting.
- Methods of identifying and addressing potential tort claims, including the sequestering of medical records, and the investigation of medical accidents and near accidents.
- Review of patient complaints concerning quality of care issues.
- Review and documentation of sentinel events using a root cause analysis or other recognized method.
- Methods by which a patient may be dismissed from care or refuse care.
- Review of requests for medical records from outside attorneys representing patients.
- Mechanisms for dealing with inquiries from governmental agencies, media, and advocate groups.
- Ensuring the initial and ongoing competency of staff.
- Compliance with applicable government regulations, healthcare accreditation standards, and all contractual agreements.
- Occurrence reporting and data management.
- Developing RM recommendations for local intervention.
- Evaluation and feedback.
From a national perspective, the IHS RM Program has primarily evolved from the analysis and review of malpractice tort claims that have been filed against the Federal Government involving medical care provided at IHS or tribally operated facilities.1 In this regard, the Agency’s RM Program is by nature predominantly reactive in scope. The program’s responsibilities include but are not limited to:
- Coordinating the processing of tort claims through the Agency, including the solicitation of peer reviews and site reviews.
- Communicating with the healthcare practitioners who provided the care in question.
- Examining issues related to the determination of “standards of care.”
- Working directly with federal attorneys who are evaluating and/or litigating the tort claims or subsequent suits.
- Representing the IHS when claims are presented for review by the Medical Claims Review Panel charted by the Department of Health and Human Services (Department).
- Maintaining case files and a database of all malpractice claims filed against the IHS since 1986, and providing compilations and analyses of the data for the Agency, the Department, and Congress, when requested.
- Providing case summaries, peer review, outcome information, and feedback of risk management recommendations to the local IHS and Tribal facilities and Area Chief Medical Officers.
- Disseminating information about the review process within group settings or meetings.
- Responding to outside credentialing organizations who are requesting tort claim-involvement histories on former IHS and Tribal employees.
- Assisting providers to submit appeals to the Medical Claims Review Panel Submitting payment reports to the National Practitioner Data Bank.
- The IHS case coordinators act as provider advocates and make every effort to support the position of the IHS or Tribal practitioner throughout the process.
The attitudes, knowledge, and skills important to the understanding of risk management and medical liability are outlined in this Manual. Details regarding the Federal Tort Claims Act and the processing of federal medical malpractice tort claims are provided, with particular focus on the Agency’s role and the practitioner’s responsibilities with respect to those processes. Finally, suggestions are provided in various sections indicating ways to possibly reduce the incidence of malpractice claims.2 A good starting point is to examine situations that adversely influence the frequency of malpractice claims, as described in the next section.
1 More recently, an Agency-wide focus on patient safety and occurrence reporting has developed; therefore a discussion of specific patient safety issues will not be covered in this Manual.
2 Although the text of this Manual frequently uses the term “physicians,” the principles and concepts described pertain to all health care providers responsible for patient care.
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