Poor physician communication contributes to liability—independent of injury—in almost a fifth of all perioperative anesthesia malpractice claims. In a review of malpractice cases, it was found that anesthesia payments were more common in claims with liability-related communication failures than in those with no communication failures.
“Poor physician communication is known to contribute to malpractice,” said Karen L. Posner, PhD, the Laura Cheney Professor in Anesthesia Patient Safety at the University of Washington, in Seattle. “And physicians with poor communication skills tend to have more complaints against them in the hospital and more malpractice claims.
“When we looked at our overall preliminary data, we found that communication failures may have contributed to the injury or severity of the injury in up to 43% of anesthesia malpractice claims,” she continued. “But our question in this particular study was, what role does communication failure play in liability when it’s not causing the injury? How does it contribute to malpractice claims even if it doesn’t contribute to the patient’s injury?”
“We also included communication that contributed to the anesthesiologist being an ineffective or poor witness,” Dr. Posner added. “That included language issues, combativeness or the inability to clearly explain the reasons for their clinical decisions.” For each communication failure noted, the researchers identified whether it potentially contributed to patient injury, anesthesiologist liability (independent of any injury) or both.
Communication Problems Highly Represented in Claims
As Dr. Posner reported at the 2017 annual meeting of the American Society of Anesthesiologists (abstract A3099), communication failures were identified in 580 (51%) of 1,132 claims, whereas no communication failure comprised 519 claims (46%). Information was insufficient for assessment in 33 claims.
“For the purpose of our study question, we looked at only whether the communication failure contributed to the liability, not the injury,” Dr. Posner said. Failures contributing to non–injury-related liability were identified in 182 (16%) of the 1,132 claims (31% of 580 claims with any communication failure).
They found that the most common liability-related failures included:
- inadequate or lack of informed consent (35%);
- inadequate, discrepant or missing documentation (28%);
- poor witness factors (27%); and
- altered or falsified medical records (5%).
What’s more, 41% of liability-related failure claims were deemed to exhibit substandard anesthesia care, compared with 30% of “no-failure” claims (P=0.01). “Some claims had more than one failure, but most of them only had one,” Dr. Posner said.
“Communication-related claims were also more likely to result in payment,” Dr. Posner reported. Indeed, 62% of claims with communication failures resulted in a payment by the anesthesiologist or anesthesia corporation, compared with only 43% of claims with no communication failures (P<0.001). Although the median payment amount was greater in communication-related claims ($334,500 vs. $276,250), the difference was not statistically significant.
The researchers also examined the severity of injury between the two types of claims. “All of these claims alleged there was an injury, even though the communication failure did not necessarily contribute to the injury,” Dr. Posner said. They found that temporary or nondisabling injuries occurred in 51% of patients with liability-related communication failures, compared with 45% of those with no communication failures. Permanent and disabling injuries occurred in 27% and 25% of claims, respectively, while death occurred in 23% and 30%.
“Although our numbers are rather small, it’s interesting to look at the payments that occurred with these different kinds of communication failures,” Dr. Posner said. No informed consent, which was the most common reason for non–injury-related claims, resulted in a 55% payment rate. Other payment rates included inadequate documentation (77% payment rate), post-event failures (37%), finger-pointing (providers blaming one another for the injury; 40%) and poor witness factors (86%).
“I would speculate that in these cases, the malpractice company or defense attorney is not going to want to put that person on the stand because they think they won’t be effective in court,” she explained.
Perhaps not surprisingly, all the claims with altered or false records resulted in payment. “It’s pretty hard to defend a claim if there are multiple records or changes in the records,” Dr. Posner said. “Although it does point out, even with electronic records, the importance of documenting changes to the record.
“So our conclusion is that in 17% of anesthesia perioperative claims, there were communication failures that contributed to the liability even though they didn’t contribute to the harm to the patient,” Dr. Posner said. These results, she added, help illustrate the importance of anesthesiologists’ communication skills in resolving anesthesia malpractice claims.
“When you’re talking about informed consent, do you have plans to look at that data in a more granular way, to try to figure out which elements of informed consent were being violated?” asked Alexander J. Villafranca, MSc, a research associate at the University of Manitoba, in Winnipeg.
“I don’t have that data with me, but we will eventually try to break that down to see what was happening,” Dr. Posner replied. “Because sometimes we do have to change anesthesia plans. We had three claims where the patient alleged that informed consent was an issue, but excellent documentation saved the anesthesiologist.”
“Do you have a separate informed consent for anesthesia at your institution?” asked session co-moderator Amaresh Vydyanathan, MD, an associate professor of anesthesiology at Albert Einstein College of Medicine of Yeshiva University, in New York City.
“No we don’t,” Dr. Posner said. “In these claims we don’t know if there was a separate anesthesia consent or not. But we do know that it was an important enough factor that it was mentioned in the deliberations.”