Reporting, Documentation, and Risk Management

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Chapter 9 Reporting, Documentation, and Risk Management

Introduction

Endoscopic services have developed rapidly over the past 30 years such that the practice of gastroenterology is a procedural specialty for most practitioners. Procedural activities carry specific risks to the patient and expose the gastroenterologist to more potential for litigation than many other physicians; this is particularly the case because most procedures are performed on “the walking well”—patients without a defined major illness who have little expectation of a poor outcome (e.g., compared with cardiologists performing infarct angioplasty). Despite this increased potential for litigation, a review of medical claims in the United States ranked gastroenterologists 23rd of 28 specialties in number of claims.1

It is a reality of practice for gastroenterologists in many societies that malpractice litigation is a real possibility (or even probability) during their career. Nothing can eliminate this risk, but sound medical practice, good documentation, and appropriate informed consent processes reduce the chance of poor outcomes and litigation when adverse events occur. These all are elements of good practice, and the principles outlined in this chapter are as relevant to gastroenterologists practicing in highly litigious environments (e.g., the United States and Australia) as they are to practitioners in areas where litigation is almost nonexistent (e.g., New Zealand and parts of Western Europe). These regional differences are partly due to patient (consumer) expectation and the local legal compensation framework.

Relationship of Medical Practice to Litigation

Several large studies have examined the impact of medical error on patient care.25 Up to 36% of hospital admissions are associated with some form of error during the admission, usually trivial and of no clinical impact. However, a study of 20,000 surgical admissions noted an iatrogenic disability rate of 4.6%. Most of these disabilities were attributable to “acceptable risk,” but the authors concluded that 17% of these injuries would have probably been successfully litigated. In other words, almost 1% of surgical admissions could result in a successful lawsuit against the surgeon. In the Harvard Medical Practice Study,4 less than 2% of patients with an iatrogenic injury filed a claim. Other factors in addition to injury determine whether a claim is filed. Several studies have addressed this issue and found that major determinants of a patient’s decision whether to sue are patient dissatisfaction and the physician’s communicative and interpersonal skills.69

Communication with the patient and family is of utmost importance, particularly when mishaps occur. Patients experiencing a significant complication often have their care transferred to an appropriate specialist for correction of the problem (e.g., intensivist or surgeon). It is an important risk management strategy for a physician to be available to the patient and family even if no longer participating in the direct care of the patient. This availability shows empathy and prevents anger arising from the perception of being “abandoned” by the physician.

Claims against Gastroenterologists

Data regarding claims against gastroenterologists are difficult to assess because not all insurers are equally forthcoming with their data, and some major U.S. institutions self-insure and do not release their data for review. The Physician Insurers Association of America pools information from 20 member insurers and periodically publishes their data.1 These data have also been reviewed and published in the gastrointestinal (GI) literature.10,11 The claims fall into the following groups:

Specific Endoscopic Procedures

In the study by Gerstenberger10,12 of 610 endoscopic claims, the relative risk of litigation arising from various procedures (relative to sigmoidoscopy) varied by less than a factor of 2, as follows: sigmoidoscopy, 1.0; gastroscopy, 1.2; colonoscopy, 1.7; and endoscopic retrograde cholangiopancreatography (ERCP), 1.6. This small variation occurred despite the fact that ERCP and colonoscopy result in far more complications than sigmoidoscopy and gastroscopy. This seeming paradox is probably explained by the use of more intensive informed consent processes for ERCP and colonoscopy compared with the technically less challenging procedures. This study illustrates the important principle of informed consent as a risk management strategy (see later).

Legal Principles in Medical Practice

Principles of Tort Law

Claims for medical negligence fall under the principles of tort law. A knowledge of the principles of tort law is germane to the physician’s understanding of his or her responsibilities. Torts are “civil wrongs,” where one private citizen has brought legal proceedings against another (in this case, the physician). Tort law does not involve criminal behavior and is usually settled with financial compensation to the injured party (the award of “damages”).

Tort law (with respect to medical negligence) involves four steps, as follows:

Breach of Duty

In a breach of duty, the physician failed to provide a reasonable standard of care after entering into the physician-patient relationship. This reasonable standard is often difficult to define and usually is established with the aid of expert witnesses—not to the level of an emeritus professor in that field but to a level acceptable to the physician’s peers (i.e., sound medical practice; published guidelines can be useful in this context but ironically are more often used for the plaintiff’s case). Many societies (e.g., American Society for Gastrointestinal Endoscopy [ASGE], British Society of Gastroenterology, and Gastroenterology Society of Australia) publish guidelines for endoscopic practice. The set of guidelines published by the ASGE, in particular, is an excellent resource that is available on the Internet (Box 9.1). Medical practice often varies depending on many variables, such as comorbidities, patient wishes, physician expertise, and available resources. If one deviates substantially from common practice, it is essential to note the reasons for this in the medical record.

Box 9.1 Professional Gastroenterology Societies

American Gastroenterology Association www.gastro.org
American Society for Gastrointestinal Endoscopy www.asge.org
American College of Gastroenterology www.acg.org
British Society of Gastroenterology www.bsg.org.uk
Gastroenterology Society of Australia www.gesa.org.au
World Gastroenterology Organization www.worldgastroenterology.org