VA Health Care: Trends in Malpractice Claims Can Aid in Addressing Quality of Care Problems
Released: 1995-12-21T00:00:00

Letter

Background

VA operates 158 medical centers and employs approximately 10,723 full- and part-time physicians and 37,294 registered nurses. During fiscal year 1994, these facilities treated approximately 906,925 inpatients and provided for 24,074,365 outpatient visits. VA acknowledges that patient care, particularly that which occurs in hospitals, contains some degree of inherent risk. In some instances it is difficult to differentiate between the risk of incurring malpractice claims from not treating diseases and the risk of incurring such claims from proceeding with treatment. Under the provisions of the Federal Tort Claims Act (title 28 U.S.C. 2671-2680), the federal government may be held responsible for monetary damages for personal injury or wrongful death caused by the negligent actions of its employees when they are operating within the scope of their employment. Thus, the government assumes liability for any such actions by VA practitioners if they were performed in the line of duty.

VA’s Office of General Counsel has overall responsibility for managing the malpractice claims process. However, the routine investigation, analysis, and decision-making involved in processing each claim is conducted by one of VA’s 23 regional counsels located throughout the United States. Specifically, regional counsel staff examine the initial claim, interview the VA health care provider(s) involved, and obtain an independent medical opinion on the circumstances of the claim—usually from peer reviewers in a VAMC other than the center involved in the claim. On the basis of this information, the regional counsel can either deny or settle the case. If a claim is denied, the claimant may appeal it within VA or file suit in federal district court. Litigation is defended by the U.S. Attorney with the assistance of the regional counsel and the Office of General Counsel. No court action can be initiated until the claimant has presented his/her claim administratively and had it denied.

When an investigation has been completed by regional counsel, a complete, concise, and accurate statement of the relevant facts must be prepared by the cognizant attorney. The statement of facts must be supported by appropriate exhibits and references. Because of their confidential and privileged nature, however, quality assurance records and documents may not be included as exhibits to the statement. If a suit is filed, the completed statement of facts is to be reviewed by attorneys in the Office of General Counsel and appropriate VA medical personnel. It is also to be reviewed by attorneys in the Department of Justice. Case files are maintained by regional counsels in a computerized database to which VA’s General Counsel has complete access.

A claim may be settled by regional counsel for amounts up to $100,000. Settlements above that amount but not exceeding $200,000 may be settled by VA’s General Counsel. Sums above $200,000 are negotiated by the General Counsel subject to approval by the Department of Justice. In fiscal year 1994, 252 administrative claims were settled by VA’s regional counsels and General Counsel at a cost of $19.6 million; 127 lawsuits were settled by the Department of Justice and the U.S. Attorney at a cost of $30.6 million; and 12 cases resulted in court judgments against the federal government totaling $3.6 million.

Malpractice Claims Made Against VA Are Increasing

The number of malpractice claims filed annually against VA has increased from 678 in fiscal year 1990 to 978 in fiscal year 1994. Correspondingly, the monetary payments made on 943 administrative claims settled during this period have increased from approximately $10 million in fiscal year 1990 to $20 million in fiscal year 1994. In addition, the 1,089 lawsuits filed against VA have resulted in annual litigated settlements and awards to claimants ranging from $22 million in fiscal year 1990 to $34 million in fiscal year 1994. Total payments made on behalf of VA for fiscal years 1990 through 1994 amounted to over $205 million with an average paid claim of $120,714.

VA classifies its malpractice claim data in two categories: administrative claims and lawsuits. Every claim received in VA is initially classified as administrative. However, if a claim subsequently results in a lawsuit and is filed in federal district court, the claim entry is amended to reflect the new status, that is, “suit filed” rather than “claim filed.” Table 1 shows the number of administrative cases filed and paid from fiscal year 1990 through fiscal year 1994.

Lawsuits filed in federal district court may be settled before the court makes a final judgment. Table 2 shows the number and dollar value of lawsuits filed in federal district court, the number of claims settled before a court judgment was made, and the number and dollar value of claims that resulted from a court judgment.

The number of malpractice claims filed and paid is not necessarily evidence that negligence has occurred. Claims experience does, however, provide the basis for examination of trends, identification of problem areas, and an attempt to provide a systemwide vigorous response through risk management programs. VA recognizes this and in June 1992 entered into an agreement with AFIP to analyze and assess trends in VA malpractice claims. The purpose of this effort was to improve the quality of medical care in the VA system by providing VA with information to (1) identify problem areas in delivery of care and (2) initiate appropriate corrective actions. The agreement with AFIP pertains to all medical malpractice claims in the VA system that were filed administratively on or after October 1, 1992.

As of October 1995, AFIP had issued one report (April 1994) to VA. This report contains an analysis of the 801 medical malpractice claims filed against VA in fiscal year 1993 and is intended to provide VA management with some general characteristics of VA malpractice claims in order to help VA managers identify possible opportunities for improving VA health care delivery. AFIP’s report was provided by VA’s Office of Quality Management to all medical center quality managers for their review.

Because this was the first report prepared by AFIP, no data trends could be noted. However, examples of the types of analysis that the report contained were as follows:

The average time between the date of the incident and the date the case was closed (both administratively closed and closed by litigation) was 3.62 years.

The three most frequent age groups filing medical malpractice claims were beneficiaries between the ages of 61 and 70 (29.5 percent); 41 and 50 (22.8 percent); and 51 and 60 (18.1 percent). In three-fourths of all malpractice cases filed, there was either major injury (53.9 percent) or death (28.2 percent).

The most frequently recorded clinical specialty involved in malpractice claims was internal medicine (13.1 percent). Less frequently listed specialties were general surgery (8.7 percent), psychiatry (7.8 percent), orthopedic surgery (6.7 percent), and nursing (5.4 percent).

The three most frequent locations where alleged incidents occurred were the operating suite (23.8 percent), the patient’s room (23.5 percent), and the outpatient area (17.2 percent).

For the eight components of care reviewed by AFIP, the care was either “definitely acceptable,” or “probably acceptable” in 75 to 80 percent of the cases. According to the peer reviewer at the facility, in approximately 64 percent of the cases, most experienced competent practitioners would have handled the case similarly in all respects. In approximately 20 percent of the cases, most experienced competent practitioners might have handled the case differently in one or more respects, and in 9 percent of the cases, most experienced practitioners would have handled the cases differently in all respects.

Staff physicians constituted 61.2 percent of the various providers involved in the alleged incidents, and physicians in training (residents or fellows) constituted 32.7 percent of the total. In approximately one-half of the claims filed, the duration of the injury caused by the alleged negligence was permanent.

Data on Malpractice Cases Are Not Consistently Used in VAMC Quality Assurance or Risk Management Programs

Quality assurance personnel in the six VAMCs we visited are not consistently using available malpractice claim information in either their quality assurance or risk management programs. For example, of the 53 claims paid in fiscal year 1994 that were associated with practitioners in these facilities, we found only 12 cases where there was evidence that defined follow-up action was taken on the risk management issues specified in the tort claim. Further, recent discussions with quality assurance personnel at these facilities revealed that the analysis of malpractice claims being made for VA by AFIP is not consistently being used by medical center personnel to improve quality of care.

Only one of the six risk management and/or quality assurance personnel we interviewed indicated that she is using AFIP information in the center’s risk management program. This Risk Manager has established a system for reviewing and tracking all malpractice claims filed for the medical center. Specifically, information from AFIP’s report is compared with the medical center’s claims database to present a comprehensive picture of malpractice experience of the medical center. This information assists the center’s risk management and quality assurance personnel in analyzing and assessing trends in malpractice data. Of the remaining personnel we interviewed, two told us that they had not seen AFIP’s report, and three stated that they had read the report. However, those three individuals did not indicate that they used the data in their risk management program. A copy of the report was usually given by the VAMC’s chief of staff to the relevant service chiefs for follow-up. The service chiefs use the information in their clinical service meetings with the medical staff.

The Risk Manager at one of the VAMCs we visited told us that VA is also replacing its Patient Incident Review guidelines with guidelines for an “Integrated Risk Management Program.” The revised guidelines call for VAMCs to focus on correcting problems using claims analysis information obtained from AFIP’s annual report. However, AFIP’s annual report contains VA systemwide claims data and analysis and does not have information specific to any VAMC. These data are available upon request.

AFIP can provide VAMCs with the number of malpractice cases at the facility, the status of a case, the amount of payment, the results of peer review, a determination about whether the patient injury was related to a component of care, and the types of risk management issues that should be addressed. According to an official in AFIP, at least one VAMC, the identity of which he could not recall, and a regional office requested this information in fiscal year 1994. The Chief of Staff for the region involved told us that he requested claim analysis information for every VAMC in his region in order to (1) determine what corrective actions are being taken at each facility to preclude a repetition of the event that resulted in a malpractice claim and (2) review the decisions made by VAMC personnel with respect to reporting a practitioner on whose behalf a malpractice payment was made to the National Practitioner Data Bank.

Usefulness of Malpractice Claim Information From DOD Health Care Entities

The methods used by VA and the uniformed services to collect and present malpractice claim data are not consistent. Thus, no valid comparison can be made of their claim data. Comparisons can, however, be made of the types of problems that are resulting in malpractice claims against each of these entities. Table 3 shows the areas into which most malpractice claims fall.

Appendix II shows the elements within six types of malpractice claim allegations in table 3.

During fiscal years 1990 through 1994, 5,172 malpractice claims were filed against the Army, Navy, and Air Force (see app. I for a claims breakout by uniformed service). During the same period, 3,878 malpractice claims were filed against VA. Accurate comparisons of these data cannot be made because there is no standard interagency format for data collection and presentation. As a result, each entity uses its own criteria (for example, data presented on a calendar or fiscal year basis, or multiple claims on a single case incorporated in the count as opposed to recording only a single malpractice case).

But, even if the number of malpractice claims filed against VA and the military services could be compared, the numerical data may not be an accurate representation of the extent to which malpractice in fact occurs. For example, research indicates that patients who have relatively low incomes and/or are over the age of 65 are less likely to file malpractice claims than younger patients. Given that the preponderance of patients in VA are over the age of 65, it can be expected that not all malpractice activity will be reported.

Further, the “Feres Doctrine” limits government liability for monetary damages for injuries sustained by active duty service members. Specifically, under this doctrine the government is not liable in monetary damages for injuries to active duty service members that occur in the course of activity incident to service. Consequently, active duty members are not compensated under the Federal Tort Claims Act for injuries they may receive in military hospitals as the result of malpractice.

Conclusions

The growing number of malpractice claims involving VA practitioners and facilities raises concerns about risk management and quality assurance at VAMCs. Through AFIP, VA has the ability to obtain detailed analysis of and descriptions of trends in malpractice data from both a systemwide and medical center perspective. Although claims analysis is but one segment of a comprehensive risk management program, effective utilization of these data is important. However, AFIP data are not being effectively utilized at either the central office or VAMC level. As a result, opportunities to (1) identify possible systemic risk management problems and/or individual provider inefficiencies and (2) decrease the risk of incurring future malpractice claims are being lost.

Recommendations

We recommend that the Secretary of Veterans Affairs direct the Under Secretary for Health to require VAMC directors to obtain and utilize all available AFIP data, including facility-specific data, to (1) identify problem-prone clinical processes and (2) initiate programs to prevent recurrence of adverse events that caused malpractice claims to be generated.

Agency Comments

On November 3, 1995, we obtained comments on a draft of this report from VA’s Deputy Under Secretary for Health, other Veterans Health Administration officials, and VA’s General Counsel. The Deputy Under Secretary generally concurred with our recommendations that VA and the individual facilities review and utilize available data relating to malpractice claims. He stated that although the report indicates a sizable increase in malpractice claims, the increase has been modest and similar to increases in claims filed and paid by DOD and the private sector. In addition, he noted that by focusing on claims filed and paid only since 1990, our report fails to recognize that VA’s claims experience tends to be cyclical, as evidenced by the trend in the 1980s when increases in claims were followed by decreases later in the decade.

We noted in our report that the number of malpractice claims filed and paid is not necessarily evidence of negligence; however, claims experience is valuable in examining trends, identifying problems, and establishing risk management strategies. Although we did not take into specific account VA’s cyclical experience with malpractice claims during the 1980s, we continue to believe that VA’s recent experience with claims filed and paid provides an opportunity for enhancement of VA’s quality assurance programs by analyzing, both at headquarters and locally, the reasons the claims were filed. VA officials agree with this point. In response to the comments of VA’s General Counsel, we made several technical changes to the draft report as we believed appropriate.

As agreed with your office, copies of this report will be sent to appropriate congressional committees; the Secretary of Veterans Affairs; the Director, Office of Management and Budget; and other interested parties. We will make copies available to others upon request.

If you have questions about this report, please contact me at (202) 512-7120. Major contributors to this report were James A. Carlan, Assistant Director; and Patricia A. Jones, Evaluator-in-Charge.

DOD Tort Claim Experience by Service Branch, Fiscal Years 1990-94

Table I.3: U.S. Air Force Claim Experience

U.S. Army Litigation Division provided only 5-year aggregate information for these categories.

Malpractice Claims Description Codes

Failure to diagnose (that is, concluding that patient has no disease or condition worthy of further follow-up or observation) Wrong diagnosis or misdiagnosis (that is, original diagnosis is incorrect) Improper performance of test Unnecessary diagnostic test Delay in diagnosis Failure to obtain consent/lack of informed consent Failure to perform surgery Improper positioning Retained foreign body Wrong body part Improper performance of surgery Unnecessary surgery Delay in surgery Improper management of surgical patient Failure to obtain consent/lack of informed consent Failure to order appropriate medication Wrong medication ordered Wrong dosage ordered of correct medication Failure to instruct on medication Improper management of medication regimen Failure to obtain consent/lack of informed consent Medication error Failure to medicate Wrong medication administered Wrong dosage administered Wrong patient Wrong route Improper technique Failure to manage pregnancy Improper choice of delivery method Improperly performed vaginal delivery Improperly performed C-section Failure to obtain consent/lack of informed consent Improperly managed labor Failure to identify/treat fetal distress Delay in treatment of fetal distress (that is, identified but treated in untimely manner) Retained foreign body/vaginal/uterine Abandonment Wrongful life/birth (continued)

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