Physicians don't have to get sued to get smart about malpractice liability. Riverside and San Bernardino County doctors are learning by doing case reviews. And many physicians are gaining insight about the role their staffs play in lawsuits.

The more things change, the more they stay the same.

No matter how much medical technology advances...

No matter how many generations of physicians enter practice, have rewarding careers and retire...

No matter what crazy shape health insurance takes...

Patients still sue.

And too often, doctors lose when perhaps they should not have.

Since 1975, California's cherished Medical Injury Compensation Reform Act has helped keep malpractice liability premiums in check for Golden State doctors. But trial lawyers and well-meaning patient advocates are still trying, 30 years later, to chip at its famed protections. There's probably little anyone can do about this unpleasant aspect of healthcare.

But what is changing is the way physicians prepare themselves for the possibility of medical malpractice lawsuits. Some are studying active malpractice lawsuits to see what they can learn and others are becoming more aware of the role that office staffs play in preventing frustration from turning into litigation. Indeed, physicians are changing the way they think and act to minimize the chance of a malpractice suit wreaking havoc on their incomes, their practices and their patients' access to care.

Supported by the major local, state and national associations and virtually every insurer that writes malpractice coverage, today's physicians are grabbing the litigation bull by the proverbial horns and getting educated like never before.

Hands-On Learning for Doctors
The Riverside County Medical Association and the San Bernardino County Medical Society have partnered with Norcal Mutual Insurance Co., San Francisco, to form Medical Review Advisory Committees (MRACs). The committees are made up of physicians from all specialties who review active malpractice lawsuits to help the carrier and the defendant doctor measure their likelihood of prevailing at trial. The committees study three or four cases at a time. The San Bernardino group meets every
other month and the Riverside group meets every quarter.

While the stated mission of the committees is to assist Norcal in evaluating the community standard of practice in a particular case and developing defense strategies, everybody involved gets a lot more out of it than just a recommendation on whether to settle or go to trial.

"It's a superb type of review, having the physicians and the lawyers in a room together," says MRAC committee member Lawrence Clark, MD, a neurosurgeon and associate at Riverside Neurosurgical Associates. "It's an excellent way of getting information out to other doctors on the committee that this is how things work."

MRAC committee member John Sullivan, MD, a family practitioner in Upland, explains the process. "The lawyers from Norcal bring the details of a case to the committee," he says. "And one of the members is assigned to study it in depth-usually somebody in the same specialty as the physician named in the lawsuit. He or she then presents the case to the group, with the occasional assistance of an outside consultant physician. We discuss the case and make a recommendation to the insurance company about any errors the doctor may have committed, so the carrier can either prepare an adequate defense or make a decision to negotiate a settlement."

"[The exercise is] very enlightening. It's probably the best two hours of professional education you can get," Dr. Sullivan says.

Doctors who participate take great care to ensure nothing confidential leaves the room, says Victor Ching, MD, a urologist in Upland and vice chair of the San Bernardino County MRAC. "The cases are discussed and evaluated based on the facts and issues of the case without revealing the identities of the physicians or the patients treated," he says.

Dr. Ching says the meetings are appropriately interactive. "The Norcal claims staff and the defense attorneys handling each case are present at the MRAC to answer any questions the participating physicians may have," he says. "The defense attorneys also have the opportunity to ask questions. The goal is to have each case discussion take place in a thorough, balanced manner, allowing the MRAC discussions to be comprehensive in their scope. This is also an educational process for the members."

Stephen M. Farber, vice president of risk management at Norcal, couldn't agree more. "Physicians who participate in the review exercises learn a lot," he says. "Actual cases are great teachers, because they represent real life rather than textbook situations. The value of having physicians review cases is their critique in physician-oriented terms and concepts. Often they are better at educating the errant physician in their critiques than a defense lawyer or insurance company can be. The program represents ongoing education for both the potential defendant and the reviewing physician."

Eye-Opening Ideas for Staff
The concept of ongoing education is being applied to physicians' office staffers as well, doctors and insurers report. Teaching employees how they can keep a tense situation from exploding into an ugly lawsuit may be-short of clinical perfection, which everyone knows is impossible-a physician's best way to minimize malpractice liability exposure.

"Your staff plays a key role in your patients' overall perspective of your practice," Farber says. "If staffers are not professional or friendly, they leave the impression that they don't care about patients. Physicians should continually monitor operations within their practices to ensure that everyone has a goal of patient safety and good quality care. Patients who sue are often angry because they were not heard or attended to."

Flashpoint situations where it's evident a patient is unhappy and where non-MD staffers can make or break the successful resolution of the issue include late appointments, unanswered patient phone calls, patient refusal to pay a bill, missing test results and failure to communicate test results, particularly when an outcome requires follow-up.

One way to ensure these situations don't devolve into litigation is staffing the practice with carefully selected, thoroughly trained professionals. "To minimize staff's negative impact on a patient's desire to sue, physicians should hire carefully and train staff," Farber says. "Training should include not only technical procedures, but required telephone etiquette, lines of authority, handling of complaints or unusual events, and opportunities to discuss daily activities."

Training is especially important for physicians making significant changes in their practices. "Many physicians are beginning to set up different types of practices and to offer services that are outside what they have done in the past," Farber says. "They need to pay particular attention to new exposures, such as practicing outside their areas of expertise and taking on responsibility for the actions of others-such as massage therapists, estheticians and others who offer not strictly medical services." In particular, Farber notes, the explosion of cosmetic services being offered by all types of physicians "substantially" increases their liability exposure.

Barbara Worsley, vice president of risk management at The SCPIE Companies, Los Angeles, says physicians must think more like team members. "Doctors don't practice medicine in a vacuum," she says. "The entire healthcare team-the billing manager, the medical records clerk, the receptionist, the medical assistant-has an active and absolutely key role to play in malpractice prevention."

Some frequent malpractice allegations include failure to follow up, failure to monitor and delayed referrals. "[The allegations] have nothing to do with a physician's clinical skills, but are reflective of the functions of the practice," Worsley says. "That's where the involvement of the staff-and its proficiency and professionalism-are absolutely essential."

Indeed, a doctor's staff often has much more contact with patients than the doctor himself or herself. "The staff has to be aware of the importance of its role in communicating with patients," Worsley says. "We know the physician is a patient advocate, but we need to focus more on the fact that the physician surrounded by his or her team forms the whole molecule of patient advocacy."

However, staffers need to make sure they don't make things worse in their desire to help out. "Sometimes people on the team don't recognize their scope of practice," Worsley says. "Medical assistants have to be very careful that they do not cross over the line and perform functions outside their scope. And you cannot have receptionists giving medical advice-like telling a patient it's probably OK if the next appointment is in eight weeks instead of four. That may seem benign, but there have been lawsuits where the receptionist was assessing the patient's condition."

Doctors must take the lead in keeping everyone on track, Worsley emphasizes, even if they feel they don't have the time to be involved. "It's just like in football," she says. "You have a quarterback, but that quarterback needs to know what the running back is going to be doing, what the wide receiver is going to be doing and what the line is going to be doing. He has to understand every person's responsibilities."

Even if doctors haven't made the effort to monitor the performance of their staff, their patients surely do, says Waldene Drake, vice president of risk management and patient safety at CAP-MPT, Los Angeles. "Patients generally know they are not competent to evaluate medical care, but they do feel able to evaluate the level of service received from the professional staff," she says.

Doctors' staffs are measured just like other service professionals. "Patients who receive courteous service and a smile at their bank may not tolerate their doctor's office staff treating them rudely or in a dismissive way," Drake says. "If the office is so disorganized that patients wait 50 minutes in the waiting room, they compare it to the speedy checkout at their local market."

The key, says Richard Anderson, MD, chair and CEO at The Doctors Co., Napa, is doing more in the area of customer service training. Customer service is a critical focus in other industries, but because most medical practices are small, training is often "informal and limited," he says.

"You hire people you assume are responsible and bright, but the truth is there's often not much training offered for handling situations where people may be annoyed," Dr. Anderson says. "The most important thing to do is make sure appropriate staff members are skilled at triage. We don't expect assistants to be physicians, but we do expect that they have a sense of what's urgent and what isn't."

In some ways, a staff member's sense of urgency translates into the doctor's ability to defuse a potential malpractice lawsuit. So experts agree doctors should consider developing an enlightened staff an essential form of malpractice prevention.

MICRA Still Looms Large
When it comes to malpractice protection, California physicians have it pretty good. The 30-year-old shield against lawsuit abuse afforded by the Medical Injury Compensation Reform Act (MICRA) is heralded as a model for national tort reform. But MICRA is not impenetrable.

Golden State physicians need to make sure patients know what's at stake and they need to raise their voices against federal tort reform if it is crafted such that it would undermine the five-star protections they now enjoy.

About the malpractice landscape overall, Lawrence Clark, MD, a neurosurgeon and associate at Riverside Neurosurgical Associates, says: "Things are pretty good, but they could be better. Physicians are thinking, 'MICRA is great, but my premiums are gradually going up.'"

Larry Laster, senior medical malpractice underwriter at Fairway Physicians Insurance Co., Westlake Village, doesn't anticipate significant change. "Tort reform in California has withstood numerous attempts to dismantle it over the years," he says. "We don't see any new attempts that would fare any better, and as other states adopt tort reform statutes, MICRA gains more validity and staying power."

However, MICRA's existence doesn't prevent plaintiff attorneys from being creative, says Susan Penney, Esq., San Francisco-based legal counsel for the California Medical Association. "Through some legislative activity and the judicial system, there have been some attempts to end-run MICRA, primarily in the areas of informed consent and elder and dependent adult abuse. The plaintiff bar uses those to bypass, we believe, the limit on general damages, because if they establish 'recklessness,' they can win attorneys' fees. That can convert a $250,000 case under MICRA into a case worth double or triple that."

Philip R. Hinderberger, senior vice president and general counsel at Norcal Mutual Insurance Co., San Francisco, agrees: "Plaintiff attorneys have argued that multiple caps apply under certain circumstances and that nursing homes, HMOs and surgery centers are not covered. We expect a continued effort on the part of the plaintiff attorneys to find additional clever end-runs."

One challenge to keeping MICRA in place is a lack of familiarity among those deciding its fate. "The biggest risk to MICRA arises from the need to educate new members of the Legislature and the governor's office," Hinderberger says. "In 2006, it will be necessary to undertake a vigorous political action program. We can expect the plaintiff attorneys to mount a legislative challenge in 2007 or 2008 if they feel the medical community has not done a good job in that effort."

In the absence of a federal solution, states have stepped in. Most have statutes of limitation of two years for standard medical malpractice claims and more than half have limits on damages awards. In 2005, 48 states responded to what Upland urologist Victor Ching, MD, terms the "fevered calls for medical liability reform." The states introduced more than 400 malpractice-related bills in their legislative sessions.

"Solutions range from enacting limits on noneconomic damages to malpractice insurance reform to gathering lawsuit claim data for the purpose of assessing the connection between malpractice settlements and premium rates," Dr. Ching says. "In the past six months, 31 states passed more than 60 bills. The plethora of solutions proposed and the variety of aspects addressed demonstrate the diversity of the problem of medical liability insurance costs from state to state."

Malpractice Insurance Company Resources
The following list represents selected medical liability insurance carriers who serve Southern California physicians. Please contact them directly for more information about coverage, premiums and risk management programs.

Aon Physician Alliance
159 E. County Line Road
Hatboro, PA 19040
866/815-5776
www.aonphysicianalliance.com

Brown & Brown Inc./
HealthCare Practice Group
P.O. Box 9699
Brea, CA 92822
714/990-4430
www.hcpinsurance.com

CAP-MPT
333 S. Hope St., Eighth Floor
Los Angeles, CA 90071
800/252-7706
www.cap-mpt.com

Fairway Physicians Insurance Co.,
a Risk Retention Group
30699 Russell Ranch Road, Suite 200
Westlake Village, CA 91362
818/889-7399
www.thorsonins.com/program_medmal.php

Medical Protective
5814 Reed Road
Fort Wayne, IN 46835
800/4MEDPRO
www.MedPro.com

MedMal Insurance Services Inc.
150 N. Grand Ave., Suite 209
West Covina, CA 91791
626/869-0544

Norcal Mutual Insurance Co.
560 Davis St., Second Floor
San Francisco, CA 94111
800/652-1051
www.norcalmutual.com

ProSurance Group Inc.
2685 Marine Way, Suite 1408
Mountain View, CA 94043
800/310-4486

The Doctors Company
185 Greenwood Road
Napa, CA 94558
800/352-0320
www.thedoctors.com

The SCPIE Companies
1888 Century Park East, Suite 800
Los Angeles, CA 90067-1712
800/717-5333
www.scpie.com

Thorson Insurance Services
30699 Russell Ranch Road, Suite 200
Westlake Village, CA 91362
818/889-7240
www.thorsonins.com

Z Insurance Brokerage Inc.
8805 Research Drive, Suite 200
Irvine, CA 92618
877/469-4584