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Predicting Risk of Malpractice Litigation

Edbril, S; Ferrara, K; Lagasse, R

doi: 10.1097/00000539-199802001-00029
Abstracts of Posters Presented at the International Anesthesia Research Society; 72nd Clinical and Scientific Congress; Orlando, FL; March 7-11, 1998: Anesthesia/OR Economics

Department of Anesthesiology, Albert Einstein College of Medicine, Bronx, N.Y., and SUNY at Stony Brook, N.Y.

Abstract S29

Introduction: Laws of science and nature tend to be reproducible and thus predictable. However, in the realm of tort law in our legal system, litigation risk seems neither reproducible nor predictable. Some researchers suggest that severity and relative permanence of injury are the major determinants of success in malpractice litigation. [1] Other studies, however, have identified human error as defined by peer review to be the hallmark predictor of malpractice litigation risk. [2] The authors investigated the relationship between perioperative legal action and severity of injury due to human error in an attempt to define malpractice litigation risk for an anesthesiology department in a university teaching hospital.

Methods: A previously described method of structured peer review [3] was used by the Department of Anesthesiology to determine severity of injury and practitioner contribution to all adverse perioperative events. Litigation risk was concurrently defined by the Risk Management Department as any case resulting in legal actions initiated by perioperative patients. Statistical process control [4], as attribute u-charts, was applied to cases in which human error resulted in disabling personal injury, as well as cases involving litigation risk, to determine frequency and stability of these occurrences. The relationship between these two groups was also examined.

Results: The Department of Anesthesiology performed a total of 37,924 anesthetics between January 1, 1992 and December 31, 1994. 734 adverse outcomes were reported and the peer review process determined that human error contributed to 90 (12%), with 13 resulting in disabling personal injury (1.8%). The risk management data identified 23 cases resulting in legal action over the corresponding two years. Attribute u-charts demonstrated that the frequency of human errors contributing to disabling injury, and the frequency litigation risk, were in control and thus predictable. None of the 13 cases which involved human error resulted in the initiation of legal action. Likewise, peer review determined that all of the 23 cases involving legal action resulted from a non-human error or were unrelated to anesthetic management. Thus, no relationship could be demonstrated between these two groups.

Discussion: Statistical process control has been advanced in industry, and recently healthcare, as a means of qualifying systems as to the extent of their stability and predictability. Our analyses suggest that the occurrence of both human errors contributing to disabling injury and litigation risk are stable, yet completely independent systems. The lack of a relation between these two groups suggests a need for tort reform. Because risk for malpractice action, as defined by either peer review or tort law, is predictable, self insurance may be a worthwhile pursuit.

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1. NEJM 335 (26):1963-7, 1996
2. NEJM 324 (6):377-84, 1991
3. Anesthesiology 82 (5):1181-8, 1995
4. Deming. Out of the Crisis. Cambridge: MIT Press, 1986.
© 1998 International Anesthesia Research Society