$1.5 Billion in Miscommunication: Medmal Data Report Finds Opportunities

More than $1.5 billion is lost annually from the U.S. health care system from medical malpractice claims. And a new report looks at the increasing role played by communication failures, and how the landscape has changed in the past 10 years.

The report is from Candello, which is the national medical malpractice data collaborative of CRICO, the malpractice insurer for the Harvard medical community. Analysts reviewed more than 73,000 closed and 64,000 asserted cases between 2014 and 2024 from across the country. And we’re lucky enough to have two lead authors of the report on the podcast today. Dr. Adam Schaffer is Senior Clinical Analytics Specialist for CRICO, and a hospitalist at Brigham and Women’s Hospital in Boston. Welcome, Adam.

Adam Schaffer: Appreciate the opportunity to be here.

CRICO: And Jay Boulanger joins us as well. Jay is a Senior Program Director for Patient Safety at CRICO, and the lead on this study. Jay, thanks for being here.

Jay Boulanger: Thanks very much for having me.

CRICO: Your report reached some very interesting conclusions about the overall impact of communication failures in medical malpractice cases. It’s 40 percent of cases continue to involve communication failure, which is up, and nearly half of those resulted in a high indemnity payment. I have a bunch of questions for you. Top line, the report says that more malpractice cases are affected by communication failures, more of those are closing with a payment. You worked on this report, you’re both very familiar with the data and how they’re analyzed. First of all, what was blinking red for you guys in communications and malpractice cases made you want to dedicate this year’s report to this topic?

Jay Boulanger: Well, I’ll take a start here, Tom. Again, thanks for having me. I think the thing that comes to immediate attention here is that communication errors are a durable contributor to malpractice loss. If a listener left this podcast with a single idea, it would be that communication errors continue to contribute to malpractice losses. And that they impact patients, providers, and health care insurers in a very meaningful way.

Adam Schaffer: To sort of build on what Jay said, because we did another report that was published in 2015 on communication failures, and as Jay just alluded to, that’s been a really sort of predominant factor all throughout this time. And the durability, and I think that’s a great way to put it as Jay did, the durability of the importance of communication as a contributing factor in malpractice is, I think, all the more notable, because we’ve seen marked changes and sort of developments in the technology of communication. But even as the technology, even as sort of the channels that we see, for communication between patients and providers, or among providers, even as those technology channels have changed, we’re still seeing the persistence of communication as sort of a key area of vulnerability. So despite that sort of, change in how we communicate, that we’re still seeing that as something, which is really important, within the realm of patient safety generally, and malpractice specifically.

CRICO: I’m wondering, were there immediate insights that popped out at you right away, or did it take some digging, and what surprised you?

Jay Boulanger: Well, I think right from the top, there was at least a notion, if not also evidence, to indicate that malpractice cases with communication factors are more likely to close with an indemnity payment, and that likelihood of closing with an indemnity payment, if there’s a communication failure, was increasing over time.

Now, 63 percent of cases that have that contributing factor of communication close with an indemnity payment, suggesting that it’s an even more crucial component of safety to pay attention to.

There’s one other thing on this topic that I think came to our attention very early in the process.

CRICO: Sure.

Jay Boulanger: And that was that the proportion of cases that are within communication and related either to communication among the care team or communication that is between the care team or providers and the patient was changing.

If you were to look back at the report from 10 years ago, you would note that provider-to-provider communication was a primary sub-focus of that report and its conclusions. Now, what we saw was the far greater share of this particular risk was focused on communication between the providers and the patient. Suggesting something that I would love Adam to touch upon, about the technology and the means of communication between the provider team and the patient.

Adam Schaffer: Yeah, I think Jay is spot on, because one of the things that really sort of jumped out at me is, as Jay noted, there was an increase in the proportion of the cases that involved communication between the provider and patient relative to provider-to-provider compared to when we took another look at the data roughly 10 years ago, and I think in a fascinating way, that really reflects some of the macro trends we’re seeing in health care. Because I think one of those key trends is that we can attribute some of what we saw to the increase in the complexity and acuity of what’s expected to take place in the outpatient setting.

I practice as a hospitalist for more years than I care to admit. And as part of that, I’ve seen how the threshold for what it takes to warrant admission to the inpatient setting in the acute care hospital, how that’s gone up. And we’re now seeing things, which we would have taken for granted, were a component of inpatient care, and we’re seeing that being done in the outpatient setting.

So we may be asking the patient and their family to be more involved in, sort of, wound care for the post-operative, for the surgical site, or maybe even giving themselves injection of blood thinners to make sure they don’t develop blood clots after their orthopedic procedure. And as we’re seeing the shift of a greater complexity of care to the outpatient setting, making sure that patients are clear what they need to do and how they need to do it, that’s becoming more and more critical, and that puts sort of more stress on that sort of communication dyad between the provider and the patient. So I think at least some of the trends we’ve seen can be attributable to that sort of macroscopic trend in health care, with basically sicker patients and more complicated patients being taken care of in the outpatient setting.

One of the other macro trends that we really saw reflected is the change in the way providers communicate with each other, and a lot of that is influenced by technology. We’re seeing providers talk to each other via texting, via email, via just so many different means of communication. And one of the really tricky things with that, is a substantial patient safety risk, is making sure we line up sort of the acuity of the communication with the means of communication, because it may be appropriate to do a text to the entire care team using the HIPAA-compliant texting app, which we may have on our phones. It may be appropriate to do that if, let’s say, you’re anticipating a patient’s going to be discharged in a few days, and you want to make sure physical therapy is seeing the patient, and so forth.

But if the patient is acutely short of breath that needs to be a page, that needs to be a rapid response, that needs to be a means of communication that gets people at the bedside quickly. And we’re still sort of, I think, in certain settings, sort of finding our footing in terms of matching the increasingly broad array of ways to communicate among the care team with the appropriate situation for that means of communication to be used.

Some of it actually has to do with sort of the volume of communication. That when you’re able to easily send someone a text, or send them an email, or send them a message via the in-basket in the electronic health record, or EHR, that means you’re seeing increases in the volume of communication that an individual clinician is receiving. On the one hand, that means that it’s easy to message them about something that they need to know, but with that increased volume, there’s also an increased risk that they’re not going to be able to clearly sort of triage what’s the message that I need to see now, or what do I need to focus on right now? You know that’s been one of the downsides, because at first blush, it’s easy to think more communication is better, but that’s actually not always the case.

CRICO: Right. And just to sort of look at this from a higher level, $1.5 billion in medical malpractice costs probably means that a little bit of improvement can yield a lot of positive result. So I wanted to get your opinions on this. What do you think providers can do to sort of take this report and start looking at ways to improve their communications, especially in outpatient settings, and especially with patients?

Jay Boulanger: I’ll take a first jump here, Adam, but please do chime in. I think the first message that I would want any provider, or maybe even better, health care system to consider when reviewing a report like this is first, how much communication and the tools with which we communicate highly influence outcomes for patients and providers and insurers.

And secondly, that there is an opportunity to increase the already present benefit of technology by standardizing and making it in harmony with the ways in which providers are most commonly communicating. So, rather than just laying down a new communication tool, really consider what the positive and adverse outcomes may be from implementing a new technology is really a good step forward.

Adam Schaffer: And one thing I would add to this is, so far, and I think this has been very appropriate, this conversation has been fairly technology-centric. I think one of the ways to address this is to understand those situations where we want to limit the role of technology.

I was reading something on sort of what we can do to sort of enhance communication around, sort of the diagnostic process, and I giggled a little bit, because, like, the article said, like increased synchronous communication. So you mean we need to talk to each other? Because thinking about, sort of, the diagnostic challenges that we may face in the hospital, in my practice, the means of communication, when I find, like, sometimes we solve those is when, I, as a member of the primary team, and all of our consultants are standing outside the patient’s room, or inside the patient’s room together, and talking about what’s going on, and talking about, what’s the differential diagnosis, what are the possibilities. You know, what are the possibilities that we’re considering, and sort of that immediate exchange of having a face-to-face conversation about what we think, especially for diagnostic challenges, what we think the right diagnosis may be, what the next diagnostic tests should be, and so forth. So I think some of the ways we need to enhance patient safety in this environment is realize when the technology is going to be an aid, but when the technology is not going to assist us, and may be even be a hindrance.

Jay Boulanger: You made me think of something so clearly, Adam, when you mentioned speaking face-to-face with your co-providers. I think one additional item that I would not want readers of this report to lose sight of is that patient and provider communication has equal, if not greater challenges. And in particular, the face-to-face encounter where a provider needs to make sure the patient fully comprehends all the associated outcomes and potential complications for a particular treatment protocol. And that encounter usually happens face-to-face and involves a complicated discussion between an expert and a layperson. We’re all laypeople in some regard when it comes to being the recipient of health care.

And getting to a real good understanding and making those interactions as positive as possible, really will reduce some exposure to malpractice claims. Because as the report highlights, one particular vulnerability is when known complications aren’t fully known to the patient. Like, they are not fully understanding what could go wrong, or what could complicate a procedure that might be otherwise successful.

CRICO: Like we always say it’s not like checking a box. Well, gentlemen, this has been a very interesting conversation and look at something people might think is pretty common, and it is in malpractice, as it turns out.

Thank you for joining us, and for sharing what you know about this topic.

Jay Boulanger: Thank you for having us. I’ve greatly enjoyed speaking with you today.

Adam Schaffer: Yep, thanks Tom. We appreciate the opportunity to chat today.

CRICO: Dr. Schaffer is a Senior Clinical Analytics Specialist for CRICO and a hospitalist at Brigham and Women’s Hospital in Boston.

Jay Boulanger is the Senior Program Director for Patient Safety at CRICO, and the lead on this study.

To receive a free download of Candello’s report, called “Malpractice Risks in Communication Failures: A 10-year Follow-up,” just visit the following site: www.rmf.harvard.edu/communicationrisks.

I’m Tom Augello for Safety Net