The Controlled Risk Insurance Company (CRICO), organized in 1976, has been functioning as the malpractice captive for the Harvard teaching institutions for more than three decades. While its initial mission was to assert greater control over the defense of legal cases, a broader goal soon emerged: as malpractice cases were being deeply analyzed for defensibility purposes, learnings were being generated that had the potential of interrupting—even halting—the cycles of malpractice issues. Hence CRICO’s loss prevention program was born, and in 1979, CRICO’s Risk Management Foundation (RMF) began to administer it.
Today, CRICO/RMF provides both malpractice defense and loss prevention services to more than 11,500 attending physicians, resident physicians, and fellows who practice medicine and/or provide clinical care at 25 health care entities in the greater Boston area. Although a relatively small number of 200–250 malpractice cases are asserted annually against physicians and institutions in the Harvard system, CRICO/RMF’s reach is far more expansive through its loss prevention program. Built on a firm belief that malpractice events represent the “tip of the iceberg,”1 causation themes from litigation are bridged over to similar vulnerabilities that are continuing to take place in the present-tense environment. This meshing of the past with the present serves to identify where institutions remain vulnerable to preventable patient injuries2 and which quality improvement initiatives should take the highest priority.
Nearly a decade ago, CRICO/RMF shifted from a more traditional risk management approach to one that was more aligned with patient safety goals. As the thinking evolved, so did a six-step methodology:
• Step One: Analyze all asserted malpractice cases on an ongoing basis, categorize causative factors, prioritize those cases that result in high-severity injury outcomes for patients, and aggregate the data into various relevant groupings (e.g., by institution, by specialty, by malpractice case type, by risk management issue).
• Step Two: Put context to the malpractice data by integrating relevant denominators and, as much as possible, comparative malpractice profiles from peer institutions.
• Step Three: With the view from malpractice clearly established through the first two steps, evaluate the present-day environment to see if it remains vulnerable to the same factors seen in the past.
• Step Four: Actively build an inventory of models and solutions related to the themes from the malpractice cases, particularly those that have resulted in high-severity injuries.
• Step Five: Aggressively educate and train, with the goal of providing ongoing cycles of increasingly higher degrees of learning in key areas; additionally, fund (through saved indemnity dollars) the implementation of select demonstration projects.
• Step Six: Wherever possible, build bridges between the underlying themes in malpractice cases (imperfect, long-term metrics) and indicators being collected by institutions on a continuous basis. The goal: to understand, in the near term, if any real change, true and sustained improvement, has occurred and to determine if the (predicted) malpractice picture shows benefits.
This methodology has propelled greater knowledge of the various drivers that most frequently result in malpractice claims and what to do about them. As CRICO analyzed its claims over the prior two decades, five primary target areas emerged: diagnosis, surgery, medical treatment, medication error, and obstetrics.3 As shown in Figure 1, these five categories have been at the center of 79% of all CRICO malpractice claims between 2002 and 2007 and—even more significantly—have accounted for 91% of the total incurred costs.
Factors Driving Malpractice Cases
Which factors are driving the malpractice cases in these target areas? In diagnosis-related claims, the most common disease categories are lung cancer, colorectal cancer, prostate cancer, and breast cancer.4 Even more relevant, however, are the insights that emerge from an analysis of these cases. In descending order, the most common types of process skills observed in malpractice cases are:
• Diagnostic skills: a) failure to consider a differential diagnosis and b) failure to order additional tests;
• Diagnostic judgment: incorrect interpretation of clinical data;
• Screening: a) failure to maintain an updated family history and b) failure to perform age-appropriate testing;
• Test results: a) failure to transmit and b) failure to receive;
• Abnormal test results: a) failure to follow up and b) problems with management of specialty referrals.
In surgery-related cases, the most frequently named specialties in the Harvard system are general surgery, orthopedic surgery, and neurosurgery.5 An analysis of surgical cases indicates that the most common process-skills types are:
• Technical skills: injuries sustained during surgery from technical errors (including laparoscopic procedures);
• Inadequate review—improper clearance for surgery;
• Lack of reliable processes to ensure correct site identification;
• Lack of teamwork in the operating room (OR; e.g., communication among providers reemerging complications);
• Loss of information—OR to postanesthesia care unit;
• Poor postoperative management.
In obstetric-related cases, the most common high-severity injury cases are those that involve babies subsequently diagnosed with cerebral palsy or newborns with shoulder dystocia-related injuries.6 An analysis of those cases surfaces the following vulnerabilities:
• Inadequate management of the second stage of labor;
• Failure to communicate worrisome signs;
• Failure to respond to concerns being raised by other providers;
• Incorrect interpretation of clinical data (e.g., electronic fetal monitoring strips);
• Technical skills: poor management of dystocia;
• Failure to identify prenatal risk factors;
• Problems encountered in “managing the unexpected”;
• Low risk to high risk—a failure by the provider to appreciate the patient’s change in clinical status.
What can be done to prevent these types of cases from recurring? Is it sufficient to simply lecture providers about these events and hope that raised awareness will motivate improved processes, skills, and performance?
There is no question that knowledge of these causation factors is important. But in itself, it is not enough. As CRICO has begun to understand, traditional didactic teaching can only go so far in bringing about change. What is really needed is a much more activist model, one of “applied learning,” that is, taking new concepts and applying them in practice environments for both intake of new knowledge and for developing new skills. This philosophy is embodied in the disciplines of simulation training and teamwork training.7
A Shared Mission: Teach, Train, Change, Measure
The ultimate goal of the CRICO program—like other malpractice carriers—is to reduce financial exposure. While that might sound somewhat stark, it is a mission that, somewhat surprisingly, nicely aligns with the goals of health care institutions—to improve patient safety and to reduce (even eliminate) preventable events that result in patient injury.8
It goes without saying that, if preventable injuries become less and less frequent, financial exposure will be a lessening concern. Therefore, despite the differences in terminology, there is indeed a shared mission between malpractice carriers/captives and hospitals, health care centers, office practices, and individual providers.
It follows then that both should be equally motivated to use their resources to bring about change: not short-term change, but permanent, sustained improvement that promises a higher-reliability environment. The stumbling block, however, is that health care entities do not always have the resources to bring about these changes and frequently struggle with myriad competing priorities.9 Malpractice entities can help by serving as a tipping point of sorts. Because malpractice cases can be directly linked to dollars (in terms of both premiums collected and indemnity paid out), they can draw appropriate attention to cases—and causative factors—that result in the “worst of the worst” patient care disasters.
In three specialty areas, CRICO has developed premium incentive plans that have incorporated simulation-based training and/or teamwork training. The first one, introduced in 2000, incentivized anesthesiologists to go through crisis response simulation training at the Cambridge, Massachusetts–based Center for Medical Simulation. Despite the premium rebate being a mere $500, the program was enthusiastically embraced by the anesthesia community. Six years after its inception, with 100 percent participation by anesthesiologists, the actuaries took notice. In late 2006, they recommended that the premium for anesthesiologists “who have undergone simulation training” be reduced by 25%.
In 2003, a much more ambitious premium incentive plan—focusing on obstetricians—was unveiled. A closed-claim study, conducted in 2000–2001, of 89 CRICO obstetrical malpractice cases showed that teamwork failures were significant factors in 43% of the case files analyzed. This was enough impetus to include teamwork training and obstetric simulation as eligibility requirements when the obstetric premium incentive plan was later introduced. Today, five years later, it is still too early to tell if the activist training models have made a difference in malpractice cases being asserted. Nevertheless, promising, shorter-term signs are on the horizon: a number of institutions have reported improvement in several indicators that are regarded as precursors to malpractice.10 For example, shoulder dystocia scenarios are declining, as are unplanned cesarean sections, and at least one institution, Beth Israel Deaconess Medical Center—the first to fully implement a teamwork training model in its labor and delivery unit—is already showing a dramatically improved malpractice picture.
A third incentive plan was introduced this past year. Based on a rise in recent years of laparoscopic malpractice cases, CRICO announced a modest premium rebate to any general surgeons who underwent “Fundamentals of Laparoscopic Surgery,” a simulation-based program produced by the Society of American Gastrointestinal and Endoscopic Surgeons (SAGES). Once again, the response to this program was immediate and enthusiastic. The first all-day course was filled to capacity, and all participating surgeons successfully completed it. It is far too early to tell whether this simulation-based training will help reduce the number of laparoscopic malpractice cases in the future. But given the known variability in how surgeons had been trained in the past, there is strong promise as to the potential impact of this initiative.11–13
The common denominator in all of these programs is that the goals of the health care institution and the malpractice carrier were perfectly aligned. The push by CRICO to move these training programs forward was ultimately well appreciated by the hospitals. In each case, the health care entities indicated that these training programs were initiatives they wanted to undertake but might not have prioritized. Thus, the determined involvement of the insurance entity—in this case, CRICO—served as an effective change agent.
Conclusion: A Challenge
In malpractice cases, causative themes can often be grouped into the following categories:
• Lack of reliable processes;
• Delayed or inadequate crisis response;
• Failure to develop differential diagnoses;
• Inconsistent technical performance;
• Poor communication.
All of these themes can be directly addressed by well-developed simulation and team training programs. That is another way of saying that there is an important intersect between the overall goals and mission of malpractice carriers and those of health care institutions and individual providers. As has happened in the Harvard system, there should be an active partnership between the malpractice carrier and the health care organization.
If this has not happened in your system, I would challenge you to challenge your malpractice carrier. Will they be your partner in moving together around these critical goals? If so, how can they help with critical resources in making certain that change is well identified, well implemented, and well sustained?
Collaborative investment in simulation and team training is one of the places where this partnership can best manifest itself. As more and more malpractice carriers understand the enormous potential of this collaboration, there is greater likelihood that preventable patient injuries will be significantly reduced.