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Communication Factors in Malpractice Cases

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Communication Factors in Malpractice Cases

By Jock Hoffman, CRICO and Supriya Raman, CRICO

Related to: Communication, Emergency Medicine, Primary Care, Insight into Risks of Ambulatory Care, Obstetrics, Other Specialties, Surgery

“What we’ve got here is failure to communicate.”

That phrase, permanently co-opted by the acclaimed 1967 film, Cool Hand Luke, is the ubiquitous reasoning for almost every two-party mishap from marital discord to international conflict. While the human race is remarkably adept at developing and mastering languages, we much too frequently fall short in putting them to use during important situations—including those that involve a patient and medical professionals.

Effective and safe health care rides on the rails of effective communication. A patient who is able to clearly express his complaint, his symptoms, his history, and his comprehension is an equal partner with a physician or nurse who is trying to help. A clinician who can hear and grasp the patient’s story—and share it with subsequent caregivers—is an invaluable part of the team responsible for guiding that patient to a timely diagnosis, appropriate treatment, and sustained follow up. An organization that values each strand of the communication web that supports safe patient care, is much less likely to see a “failure to communicate” played out in a malpractice trial.

data breakdown From 2006–2010, 1,160 medical malpractice claims and suits were asserted against CRICO-insured clinicians and organizations (see Case Volume, right). When those cases were analyzed by the nurses who constitute CRICO’s coding team—looking at the medical record, physician expert reviews, depositions, and other associated clinical or legal documents—42 percent reflected communication breakdowns. Half of those cases involved outpatients.

Each open CRICO case is assigned “reserved” dollars to cover the eventuality of an indemnity payment to the claimant. The value of closed cases is determined by any payment awarded by settlement, arbitration, mediation, or trial. For a set comprising open and closed cases, reserves and payments are mixed to calculate the “incurred losses” of that set. The incurred losses for CRICO’s 484 cases from 2006–2010 coded with a communication issue is $264 million, 44 percent of all CRICO incurred losses for that time period. (See Defendant Type data.)

Every assertion of malpractice alleges an injury caused by the defendant(s) not meeting the standard of care. CRICO assigns each case an injury severity rating based on the National Association of Insurance Commissioners nine-point scale (1= emotional injury; 9 = death). High-severity cases include death and permanent severe injuries. For the 484 cases from 2006–2010 coded with a communication issue, 197 (41 percent) involved a high-severity injury (114 deaths); 46 percent involved a medium severity injury. Typically in malpractice cases, high-severity injuries are associated with disproportionately higher dollar losses. Thus, while reflecting 41 percent of CRICO’s communications-related cases from 2006–2010, the high-severity injuries account for 79 percent of the incurred losses for that case category.

common allegations


The plaintiff—a patient, or an agent acting on behalf of a patient (e.g., family member, estate)—asserting medical malpractice must name one or more defendants as responsible for the alleged substandard practice. Organizations (hospitals, practice groups) or individual physicians, nurses, or other employees can be named as defendants (after the initial filing of the case, the plaintiff may choose to add or drop selected defendants). CRICO’s 484 communications cases from 2006–2010 named 992 defendants: 566 MDs, 82 nurses, and 45 other individuals… as well as 299 organizational defendants. The range of defendants exemplifies the fact that miscommunication in a health care setting reaches well beyond the doctor and patient in the exam room. In fact, many of the communication issues cited in malpractice cases don’t directly involve the patient. Nearly 40 percent are triggered or exacerbated by  breakdowns in communication between two or more providers: physician-nurse, attending-resident, PCP-specialist, or multiple providers somehow failing to properly give or receive vital patient information.

Nevertheless, the most troublesome communication gaps are those between the provider and the patient. For CRICO, 69 percent of communication cases allege that the patient did not receive information that he or she needed to understand their health issues, make informed decisions about treatment options, or manage their long-term care. Of course, physicians and other caregivers are challenged to understand what a given patient hears, comprehends, and retains in the throes of a health crisis—and jurors are charged with determining a reasonable level of responsibility for the patient/plaintiff.

For the 532 communication-related cases CRICO closed from 2006–2010 (including some with assert dates prior to 2006) two-thirds of those cases were resolved without any payment. Most often, the plaintiff voluntarily discontinued his or her case in light of insufficient evidence of substandard care. For the remaining one-third of cases that ended with a payment to the plaintiff (via settlement or trial) the average payment was $768,000. By comparison, over the same time period, 33 percent of all CRICO cases closed with payment, and those payments averaged $625,000.


March 15, 2012
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