Putting the Patient in Patient Safety: Title and subTitle BreakLinking Patient Complaints and Malpractice Risk

The quintessential service business can be identified by a sign mounted prominently behind the counter proclaiming that "The Customer Is Always Right." Despite the lip service paid these days to consumer sovereignty and patient autonomy, however, it is hard to imagine a similar placard in a hospital or doctor's office reading "The Patient Is Always Right."

Consider medical error. For decades, error has been addressed primarily through malpractice litigation, the availability of which often depends on the lobbying muscle brought to bear by organized medicine, on one side, and the trial bar, on the other. Whether in the courts or the legislatures, patients rarely speak, but are spoken for. Following the publication in 1999 of the Institute of Medicine's report, To Err Is Human, it has become fashionable to think of error prevention as a cooperative, system-based pursuit of improvement rather than the identification and discipline of individual bad apples.¹ This process, however, is typically framed as an exclusively professional one. Again, the patient is often the object of discussion and seldom the discussant.

How does one involve the patient in patient safety? It would help to forge stronger links between the "customer satisfaction" side of health care and the "clinical safety" side.^{2 - 4} In other words, health care organizations need to elicit patients' stories, capture information relevant to safety, and feed that information back to the professionals who organize and deliver care. The study by Hickson et al⁵ in this issue of THE JOURNAL is important because it connects dimensions of medical care that are unsatisfying to patients to dimensions that may be injurious to them. It therefore invites physicians to take a step away from the "community of experts" approach to patient safety and move a step closer to the patient.

In their study, the authors examine patient complaints and malpractice litigation involving an academic health center and its affiliated medical group. They find that complaints are correlated with "risk management" activity, defined as opening case files, incurring investigative or settlement expense in connection with those files, or defending actual lawsuits. Female physicians are less likely than male physicians to generate complaints, necessitate risk management interventions, or provoke lawsuits, whereas surgeons are more likely than nonsurgeons to prompt these events. Although lawsuits against surgeons are associated with both the number of complaints filed against them and their level of clinical activity, only complaints predict being sued repeatedly.

The study can be read narrowly and even cynically. One can interpret the association between complaints and lawsuits as merely offering a novel tool for traditional risk management, meaning reduction of litigation expense, not prevention of injury. Although the authors urge that peers offer physicians feedback regarding their risk of being sued based on the complaints lodged against them, the study makes no attempt to ascertain whether care that generates complaints meets professional standards of safety or quality. In fact, rather than technical competence, the authors emphasize "ability to establish rapport, provide access, administer care and treatment consistent with expectations, and communicate effectively" as protecting against litigation. Accordingly, the study categorizes complaints as relating to communication, humaneness, care and treatment, access and availability, environment, or billing, and finds that no category of complaint was more predictive than any other of risk management activity or litigation.

It is nice to have empiric confirmation of malpractice lore such as the relationship between billing snafus and allegations of medical negligence. However, if lawsuits are triggered by uncaring attitudes rather than clinically inappropriate decisions, and the two are unconnected, most of the study's conclusions seem obvious. Complaints reflect patients' subjective impressions. Lawsuits are similarly subjective, although they filter patients' beliefs through a screen of lawyer self-interest, eliminating cases unlikely to generate significant monetary settlements (but not necessarily cases without underlying negligence).⁶ Risk management activities generally occur in response to internal staff reports of "incidents" that might turn into suits, which is somewhat more objective but still incorporates biases that staff inevitably bring to bear when anticipating litigation. Although, after adjustment for clinical activity, only complaints about care and treatment independently predict risk management, the authors note that incident reports usually relate to care or treatment. The data therefore raise the possibility that risk managers are insufficiently attentive to other types of complaints (3 physicians in the study generated more than 24 patient complaints but no risk management). Alternatively, staff incident reports may be framed as care or treatment issues because only those categories are socially acceptable within hospital hierarchies, leaving risk managers little opportunity to address the communication problems and "personality" issues that tend to drive patient complaints.

A way to avoid this circularity is to view the authors' data as an acknowledgment that reducing lawsuits requires preventing errors and not just placating patients. From this perspective, the value of the study is not just as a litigation cost-control device for hospital and medical group administrators, but as an aid to improving medical practice by providing earlier, statistically more reliable warning of problems than waiting for suits to be filed. Accordingly, the authors miss the mark with their final point—that their study involves "high rates of legally invalid law suits" and that "medical centers and their patients can benefit by identifying the origins of invalid claims in the hopes of preventing others." The importance of the study's method is that it enables hospitals to learn about valid claims from patients whether or not the much rarer and more chilling event of formal litigation ensues. Furthermore, uncaring medicine is itself bad medicine, something that tends to get overlooked in the rush to achieve technical perfection.⁷ Acting on the signals offered by patient complaints therefore can reduce both physical and interpersonal harm to patients.

The authors' focus on complaints is entirely compatible with evolving theories of technical safety because it necessarily entails system-based thinking.⁸ Experience with professional discipline has demonstrated that neither broad self-regulatory organizations (eg, medical societies) nor formal government bodies (eg, state medical boards) are well positioned to receive and respond to patient complaints.^{9 - 10} Error detection and correction will only be effective if complaint-related safety systems are integrated into provider organizations such as hospitals, medical groups, or closed-panel managed care organizations, as was the case in the study.¹¹ This is partly because such organizations are better attuned to individual circumstances, and partly because they have a more direct reputational stake in displaying their sensitivity. In this connection, it is curious that the authors excluded anesthesiologists, emergency physicians, radiologists, pathologists, and housestaff from their study, even though these hospital-based physicians are most likely to heed instructions from the organizations that employ them.

Many aspects of the institutional role remain to be established, however. The authors are in the process of testing peer-based interventions and malpractice premium surcharges for physicians who incur frequent complaints, and even suggest limiting physician caseloads generally. These have potential, but it is also worth considering other ways to deploy organizational resources. For example, it may be useful to redesign the systems in which physician-patient communication takes place, or to supplement those interactions with other contacts involving nonphysician personnel, which could take strain off physicians whose inability to cope with heavy workloads leads both to complaints and to lawsuits. In addition, complaint-generating behavior may reflect underlying problems in the safety-related infrastructure of the organization in addition to idiosyncratic features of the physicians who are involved, and may better be addressed in those terms. An important question is how these mechanisms would function in more fragmented settings, such as office-based practice.

Moreover, it is likely that most substandard care never results in a lawsuit or a complaint. Although the health care system is facing its first major "malpractice crisis" in nearly 2 decades, physicians should not confuse reforms intended to keep liability insurance affordable with efforts to improve medical practice. Mirroring the debate over the whether detection and early treatment of disease saves money or just helps patients, a better-organized, more effective system of eliciting and responding to patient complaints might indeed avoid some situations that lead to malpractice litigation, but would undoubtedly surface others. Patients would benefit, but costs might increase.

Despite this risk, more must be done to incorporate patient perspectives into organizational quality improvement. Among other things, it would be enlightening to examine the zero-complaint physicians as intensively as the high-complaint physicians. It never hurts to figure out what people are doing right. Reviewing supposed successes is also important because the flip side of suing rude physicians for malpractice is tolerating clinical errors if the physician is charming. In the study, 19 physicians drew few complaints but prompted frequent risk management. When I was an intern, we referred to one attending physician—whose skills were so poor that he had been banned from the teaching service—as "Mr" rather than "Dr." His patients, most of whom were nursing home residents, adored him.

A longer-range goal is to create innovative systems for engaging patients and their families in efforts to improve safety following errors (including "near misses"). Recently adopted policies requiring physicians and hospitals to disclose many such events when they occur are a welcome move in this direction. The authors correctly observe that the law should protect bona fide patient safety activities from outside interference.^{12 - 13} This is a particular challenge when shifting from an "experts only" model of patient safety to a more inclusive approach. A next step is to adapt less adversarial, "interest-based" negotiation techniques such as mediation to the patient safety context, so as to encourage patients and health professionals to share information and ideas about both the compassionate and the technical aspects of doctoring.¹⁴ This may work best in chronic disease settings, such as children's hospitals, where patients and their families are educated about medical conditions, physicians are accustomed to involving patients and families in treatment decisions, and even dissatisfied patients have a continuing need to use the system rather than merely feeling victimized by it.

In the meantime, we can at least admit that the patient is usually right.