Manage Your Exposure to Otolaryngology Malpractice Cases

Dr. Eloy, vice chair of otolaryngology-head and neck surgery and director of rhinology, sinus surgery and endoscopic skull base surgery at Rutgers New Jersey Medical School in Newark, added that standardized and clearly written informed consent forms help. He has forms that detail risks, benefits and alternatives for every surgical procedure he performs. He then holds a separate meeting with patients and their families to go through the forms before getting a copy signed for his records.

“I would advise physicians to have a standardized process in place to address these issues,” he said. “Physicians should go over every point of the informed consent with their patients, and should note that they have done so in the patients’ medical records.”

A Peek at the Future

Holistically, the best long-term risk mitigation strategy for health care appears to be tort reform and a new way of looking at the way health care liability issues are handled in the country, said Anupam Jena, MD, PhD, assistant professor of health care policy and medicine at Harvard Medical School and an internist at Massachusetts General Hospital, both in Boston.

Dr. Jena said that there is limited evidence that enacted malpractice reforms have produced more than a 2 to 5 percent reduction in health care spending when compared with results in states that have not enacted these reforms. Instead, health care leaders should push for the elimination of so-called defensive medicine, which he said contributes the lion’s share of the estimated $50 billion annual cost of malpractice liability across the country.

Dr. Eloy said he can imagine why physicians order tests that aren’t clinically necessary in an attempt to prevent lawsuits and protect themselves in cases of litigation. But he believes such practices unnecessarily increase health care costs.

Dr. Setzen also understands the phenomenon, but said that wasting billions in a system starved for dollars will lead to a crisis. “Patients with significant medical problems who may need very complex surgery are going to find it difficult to find doctors because of the fear of lawsuits,” he added. “We’re all concerned that if we don’t do every test that we need to, and we miss something and then it goes to court, the first thing the opposing lawyer is going to say, ‘You didn’t do an x-ray on this patient.’”

Dr. Jena says a mindset shift and an additional focus on defensive medicine are the needed sparks to persuade policy makers in Washington to address the scope of money being wasted on health care tests done for the sake of lawsuit fears. “Do I think the country is in a malpractice crisis? No,” he said. “Do I think that defensive medicine is larger than we think it is? Yes. If physicians practice, as they felt they should practice without ordering extra tests and procedures, my guess would be you could reduce health care spending by substantially more than $50 billion.”