Reducing the Occurrence of Malpractice Cases Involving Policy or Protocol-related Breakdowns

According to the 2020 Candello Benchmarking Report, the odds of a medical professional liability (MPL) case closing with an indemnity payment increase 145% when the involved organization lacked a formal policy or protocol related to patient care, or an existing policy/protocol was not followed by the patient’s care providers. Below are some key considerations for interventions to reduce these risks.

Policy Needed

MPL cases citing an organization’s failure to establish a clinically pertinent policy generally reflect a broader need to clarify standards for communication (via documentation and face-to-face), or evolving issues (e.g., services, procedures, vendors). Interventions to look at one’s overall policy processes can pre-empt claims associated with policy deficits. Any intervention to fill policy voids should:

• Evaluate trends and inconsistencies. Expose vulnerabilities and identify where a policy to unify diverse behavior is needed.
• Focus on policies germane to high-risk consequences. Policies unrelated to patient or provider safety can dilute the value of those addressing high-impact risks.
• Engage all impacted disciplines in the process of development and periodic review. Recognize the prominence of nursing care and ancillary staff in policy-related MPL cases. Representation across the care team is needed to determine if a given situation requires a new policy, revision of an existing policy, or better enforcement.
• Evaluate the notification, implementation, and monitoring processes. A poorly managed rollout is no more defensible than the absence of a policy. Implementation is a multi-phase commitment that requires a plan and assigned accountability.
• Consider the downstream impact of introducing a new policy. Test implementation (consider a failure modes effects analysis or similar process). Does it conflict with other policies, interfere with clinical judgment, or consequently increase the organization’s liability exposure?

Policy Not Followed

MPL cases citing an individual’s failure to follow an established policy generally reflect factors about the work environment or faults within the policy’s design. Targeting individuals is unlikely to “root out” violations if the underlying policy prompts broad transgression. Organizations need to work within a just culture framework that looks beyond the individuals to fully understand why certain policies are sidestepped. Any intervention to address policy non-adherence should:

• Establish who is accountable for training. Everyone expected to abide by a policy should understand why it exists and the potential consequences (both clinical and legal) of non-adherence. Indicate who is expected to do that and in what fashion.
• Determine if breaches are due to the policy’s purpose or the associated tasks. We don’t need to is different from We can’t. Give staff a process to voice their perspective and any concerns that influence compliance.
• Include all relevant staff in the solution. Front line staff may be conflicted when told by more senior colleague to practice contrary to an established policy. Are they comfortable escalating concerns or “stopping the line” to ensure compliance? Consider the influence of camaraderie (or hierarchy) on a colleague’s condoning non-adherence or workarounds.
• Routinely address failures to follow established policies. Pre-empt adverse events by examining barriers to compliance and opportunities for staff training.

For more information, including a detailed data analysis MPL cases involving policy/protocol issues and strategies for defending such cases, download The Power to Predict for free, here.