How To Determine The Impact Of Miscommunication In Medical Dispute Cases In Japanese

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1 International Journal for Quality in Health Care Advance Access published July 17, 2008 International Journal for Quality in Health Care 2008; pp /intqhc/mzn028 Impact of miscommunication in medical dispute cases in Japan NORIAKI AOKI 1,2,3, KENJI UDA 4, SACHIKO OHTA 1,2,5, TAKAHIRO KIUCHI 3 AND TSUGUYA FUKUI 6 1 Center for Health Service, Outcomes Research and Development-Japan (CHORD-J), Tokyo, Japan, 2 School of Health Information Sciences, University of Texas Health Science Center at Houston, Houston, TX, USA, 3 Department of Health Communication, School of Public Health, University of Tokyo Graduate School of Medicine, Tokyo, Japan, 4 Uda Clinic, Kyoto, Japan, 5 Okayama Central Hospital, Okayama, Japan, and 6 St Luke s International Hospital, Tokyo, Japan Abstract Objective. Medical disputes between physicians and patients can occur in non-negligent circumstances and may even result in compensation. We reviewed medical dispute cases to investigate the impact of miscommunication, especially in nonnegligent situations. Design. Systematic review of medical dispute records was done to identify the presence of the adverse events, the type of medical error, preventability, the perception of miscommunication by patients and the amount of compensation. Setting. The study was performed in Kyoto, Japan. Participants. We analyzed 155 medical dispute cases. Main outcome measures. We compared (i) frequency of miscommunication cases between negligent and non-negligent cases, and (ii) proportions of positive compensation between non-miscommunication and miscommunication cases stratified according to the existence of negligence. Multivariate logistic analysis was conducted to assess the independent factors related to positive compensation. Results. Approximately 40% of the medical disputes (59/155) did not involve medical error (i.e. non-negligent). In the nonnegligent cases, 64.4% (38/59) involved miscommunication, whereas in dispute cases with errors, 21.9% (21/96) involved miscommunications. (P,thinsp;0.01) Although almost at negligent dispute cases were compensated (94/96), the frequency of positive compensation in non-negligent cases was significantly higher if miscommunication was perceived: 78.9% (30/38) with miscommunication and 52.4% (11/21) with non-miscommunication (P, 0.05). The presence of medical error and patients perception of miscommunication were important predictors of positive compensation (odds ratio: 36.9 and 3.6, respectively.) Conclusions. Medical disputes can occur without negligence and may have costly consequences. Medical staffs need to understand that not only the presence of medical errors, but also patients perception of miscommunication, especially in cases with a non-negligent adverse event, can cause serious medical disputes. To prevent future disputes or claims, there is a strong need to improve communication between providers and patients or their relatives. Keywords: medical disputes, miscommunication, economic analysis, logistic regression, medical errors Introduction Medical dispute cases reflect detrimental relationships between health-care professionals and care recipients (or families) and can arise for various reasons. Some disputes arise in the absence of either medical injury or demonstrable negligence [1]. In contrast, not all medical errors cause medical disputes or lawsuits [2]. Thus, to reduce medical disputes, as well as working to prevent medical errors, it is necessary to prevent avoidable medical disputes. Recently, Studdert et al. [3] reported that 36.7% of malpractice claims did not involve medical errors. In their report, 72.6% of claims that were not associated with errors did not result in actual compensation. However, this also means that compensation was given in 27.4% of non-erroneous cases. Although backgrounds and outcomes of medical errors have been well reported, few studies have investigated the managerial and economic impact of medical disputes, especially in non-error cases. As well, the factors resulting in costly consequences in non-error cases have rarely been discussed. Kagawa-Singer and Kassim-Lakha [4] advocated the importance of reducing the risk of miscommunication to Address reprint requests to: Noriaki Aoki, School of Health Information Sciences, University of Texas Health Science Center at Houston, Houston, TX, USA. Tel: þ ; Fax: þ ; noriaki.aoki@uth.tmc.edu International Journal for Quality in Health Care # The Author Published by Oxford University Press in association with the International Society for Quality in Health Care; all rights reserved Page 1 of 5

2 N. Aoki et al. increase the likelihood of improving health outcomes. However, the communication factor has also rarely been investigated in medical dispute cases. Furthermore, few investigations on medical malpractice claims in Japan have been conducted since the information related to these claims has been closely guarded [5]. In this study, we analyzed medical dispute cases in Japan: (i) to characterize such cases and to compare medical error and non-error cases, and (ii) to analyze the impact of miscommunication, especially in non-error cases. Methods Subjects We obtained medical dispute records from the Kyoto Medical Practitioners Association. We analyzed 155 consecutive cases that were completely resolved between 1989 and The members of this association (i.e. clinicians or hospitals) are required to report all cases of medical disputes between hospitals/clinics and patients that cannot be resolved. The association has a Medical Accident Investigating Committee comprising eight physicians and two lawyers. The Committee investigates each of the medical disputes to identify the background, type of error, liability, and preventability of events to determine reasonable compensation. The Committee then discusses the issue with the patient and/or their attorney to arrive at a consensus on the appropriate compensation in each case. A case will go to the court if the mediation is not successfully settled within the organization. Definitions of terms A medical dispute case in this paper is defined as a case that was detrimental to a good relationship between health-care professionals and the care recipient (or family) and that required mediation by a third party. The definition of medical error, consistent with the notion that To err is human, is defined as a failure to complete a planned action as intended (i.e. error of execution) or the use of a wrong plan to achieve an end (i.e. error of planning) [6]. This type of error may be caused by a slip in attention or memory lapse, or, in the case of a wrong plan, a mistake [7]. In this paper, we equate medical error and negligence. An adverse event is any deterioration (e.g. injury or death) caused by medical mismanagement rather than the underlying condition of the patient. Prevention of these adverse events was categorized into three groups using the criteria proposed by Leape et al. [8]. An adverse event was classified as preventable if it resulted from an error. An adverse event was classified as unpreventable if it resulted from a complication that could not be prevented based on the current state of knowledge or due to the natural course of the disease. Unpreventable events are further grouped into foreseeable (e.g. marrow depression following chemotherapy) and unforeseeable (e.g. unknown allergic reaction). An adverse event was classified as potentially preventable if no error was identified. Potentially preventable adverse events were in principle considered as unpreventable. However, a high incidence of this type of adverse event can reflect low standards of care or technical expertise, which may be classified as preventable under such circumstances (e.g. wound infection, postoperative bleeding). Classification of dispute cases Two physicians, an internist and a surgeon, with training in the decision sciences (N.A. and K.U.), who are also members of the Committee, reviewed all 155 disputes to classify each case into the following categories. All compensation was converted to US dollars using a March 2007 currency rate of $1 (US) ¼ 120 JPY. (i) Adverse events Adverse events were classified as either Yes or No. (ii) Outcomes Outcome was categorized into the following five groups based on the Disability Grades used in Japan: (a) Complete recovery, (b) Mild disability: grade 7 14 with the Disability Grade in Japan, such as alteration of visual acuity (,20/40, 0.6 in Japan) with both eyes, (c) Moderate disability: grade 3 6, such as loss of four or more fingers, (d) Severe disability: grade 1 or 2, such as hemiparalysis of either both arms or legs, (e) Death. (iii) Types of medical errors All dispute cases were classified as non-negligent, or negligent (i.e. slip/lapse, or mistake, respectively) based on the definitions in the previous section. (iv) Preventability of adverse events All disputes were classified into preventable, unpreventable or potentially preventable based on the definition noted previously. (v) Miscommunication Cases were classified as miscommunication if patients mentioned their perception of miscommunication with physicians, other medical staff, or hospital administrators. Instances of miscommunication were determined by the verbalization of words such as insincerity, inappropriate informed-consent and inappropriate response or were determined during the review by the two physicians. Cases were classified as involving miscommunication or not, independently of whether they involved adverse events, the severity of outcome, the presence of error, or preventability. Statistical analysis The x 2 -square test was used to compare the frequency of miscommunication cases between negligent and nonnegligent cases. The Mantel Haenszel test was used to compare the proportions of positive compensation between non-miscommunication and miscommunication cases, which were stratified according to the existence of negligence. Page 2 of 5

3 Impact of miscommunication in medical dispute cases Multivariate logistic analysis was conducted to assess independent predictors of settlement without compensation to identify important factors regarding the economic impact. We investigated the presence of adverse events, outcomes, type of error, preventability, patients perception of miscommunication, age and gender as independent risk factors. The area under the receiver operating characteristic (ROC) curve was then used to evaluate the accuracy of the final logistic regression model. Results Overall information The median age of the 155 patients was 48 years (0 90). Eighty-four patients (54.2%) were male and 71 (45.8%) female. Eighty-six cases (55.5%) were related to medical procedures and 69 (44.5%) to surgical. The median duration for settlement was 401 days ( ). Seventy-three cases (47.1%) were settled within 1 year, but 34 (21.9%) took.3 years. Forty-five cases (29.0%) occurred in clinics with no admission facility. Small hospitals (,100 beds), mid-sized hospitals (between 100 and 299 beds) and large hospitals (300 beds) had 19 (12.3%), 47 (30.3%) and 43 (27.7%), respectively, of the medical dispute cases. We could not identify the hospital size in one case. Among 155 cases, 87.1% (135/155 cases) received positive compensation. Ninety cases (58.1%) received,$10 000; 20 received no compensation, and 15 (9.7%) received.$ with the maximum total compensation being $ A total of $ (calculated using $1 (US) ¼ 120 JPY; the rate in March 2007) was paid in the 135 cases that received compensation. The average amount of compensation was $ with a median of $7417 (range $0 $ ). Medical dispute case characteristics Table 1 demonstrates descriptive statistics for 155 medical dispute cases. Among the 155 cases, 74 involved no injury or just a temporary injury with an eventual complete cure. In 45 cases, patients suffered permanent physical or psychological effects, six had severe after-effects graded as 1 or 2 on the Japanese scale, 13 had moderate after-effects graded 3 6, and 26 had mild after-effects graded The remaining 36 patients died as a result of the adverse event. Although the average amount paid was not great ($18 715), a total of $ was paid in the 74 cases in which there were no permanent after-effects. The average compensation for severe after-effects was higher than that for death. This might have resulted from the fact that 15 of the 36 fatal cases (41.7%) died as a result of the natural course of their disease or of inevitable complications, which resulted in zero/small amount of compensation. A total of $ was paid in the 96 medical disputes with errors. The average compensation for a mistake ($69 764) was almost twice that for slips/lapses ($36 863). Fifty-nine cases (38.1%) were judged as involving no error, but it required.$ in total compensation to resolve Table 1 Descriptive statistics of all dispute cases No. % Compensation [US Dollars ($)]... Total Average... (1) Adverse event Yes No (2) Outcomes Complete recovery Mild disability Moderate disability Severe disability Death (3) Type of error No Yes: slips/lapse Yes: mistake (4) Preventability of adverse events Preventable Potentially preventable Unpreventable Foreseeable Unforeseeable (5) Perception of miscommunication Presence Absence All compensation amounts were converted to US Dollars using $1 ¼ 120 JPY, a rate from March the disputes. Compensation was greater in preventable and potentially preventable cases than in unpreventable ones. Fifty-nine patients mentioned miscommunication between patient and physician, medical staff, or hospital administrators. These cases included unfavorable physician (or staff) attitudes before the event, insufficiently informed consent, feeling ignored during the procedures, insufficient explanation of the event, and little response after the event. Impact of miscommunication Table 2 shows a detailed analysis of outcomes, positive compensation, presence of medical errors (negligence), and claims for miscommunication. Of a total of 96 negligent cases, miscommunication was identified in 21 (21.9%). In contrast, the involvement of miscommunication was significantly frequent in non-negligent cases, 64.4% (38/59) (P, 0.01). In terms of compensation, most negligent cases resulted in positive compensation regardless of the presence of Page 3 of 5

4 N. Aoki et al. Table 2 Number of cases classified by outcomes, compensation, error and miscommunication Medical error No Yes Total % of miscommunication Miscommunication No Yes No Yes In all cases In non-error cases In error cases... Outcomes Complete recovery Mild disability Moderate disability Severe disability Death Compensation Positive Negative Proportion of positive compensation (%) Total Table 3 Average amount of compensation in disputes classified by outcomes, error and miscommunication Medical error No Yes Average % of compensation of miscommunication Miscommunication No Yes No Yes In all cases In non-error cases... Outcomes Complete recovery $2778 $ $ $ $ Mild disability $1375 $ $ $5625 $ Moderate disability $0 $ $9371 $ $ Severe disability $2500 $ $ $ Death $ $5694 $ $ $ Total $ $ $ $ $ All compensation amounts were converted to US Dollars using $1 ¼ 120 JPY, a rate from March miscommunication; 100% (21/21) with miscommunication and 97.3% (73/75) with non-miscommunication. In non-negligent cases, however, the frequency of positive compensation was significantly higher in miscommunication cases; 78.9% (30/38) with miscommunication and 52.4% (11/21) without miscommunication (P, 0.05). The frequency of claims for miscommunication in nonnegligent cases was high in those leading to a complete recovery or permanent disabilities (mild, moderate or severe). Average compensation was also high in these cases (Table 3). In contrast, the existence of miscommunication seems not to have had a strong impact on the frequency or the average amount of compensation in negligence cases. Multivariate analysis The presence of a medical error was the most important independent factor leading to the compensation; the odds ratio was 36.3 [95% confidence interval (CI): ]. Patients retrospective judgment that there was a lack of appropriate communication (i.e. patients perception of miscommunication) was the second most significant risk factor; the odds ratio for this was 3.6 (95% CI: ). The area under the ROC curve in this model was (95% CI: ). Discussion The current study showed that approximately 38.1% of the medical disputes studied did not involve medical errors and that 26.5% of all medical dispute cases were not preventable. These findings confirmed that non-negligent adverse events often are involved in medical dispute cases, probably because there are random occurrences where even correct and appropriate practices may result in undesired results. However, patients who have suffered an adverse event need to be compensated regardless of the cause of the incident. A no-fault mechanism for compensation deserves serious consideration, in particular in cases of adverse events without errors [9 12]. In our logistic regression analysis, presence of medical errors and miscommunication were independent factors related to compensation. Medical disputes frequently occur Page 4 of 5

5 Impact of miscommunication in medical dispute cases because of poor doctor patient relationships, insufficient explanations, or miscommunication [13 15]. However, retrospective claims by patients may include an information bias. However, it is difficult to judge whether patients have understood the notion of adequate informed consent. Our cohort demonstrated significant difference compared with non-negligent dispute cases in the US in terms of compensation [3]. Although Studdert et al. reported only 23% of such cases that were not associated with errors were compensated, 69.5 % (41/59) of our cohort were positively compensated. Our stratified analysis demonstrated that the existence of miscommunication was significantly associated with higher frequency in compensation (i.e vs. 52.4%) and higher average compensation, especially if patients outcomes were complete recovery or any type of disability. The difference may infer that subjective opinions regarding miscommunication by patients, even without apparent negligence, may have strong impact resulting in medical disputes and further positive compensation. This result is not a direct indication that Japanese physicians/administrators have poor communication skills, but implies that communication may have a significant role in reducing medical disputes, especially in non-negligent cases. During the review process, we identified non-error cases had been granted compensation by the Committee for the following reasons: (i) because of the patient or the family s perception of insufficient information sharing, or (ii) to remove the nuisance value of the claim. With respect to the first reason, the Medical Accident Investigating Committee of the Kyoto Medical Practitioners Association awards compensation for adverse events if they judge that patients did not receive sufficient informed consent, regardless of the establishment of the existence of medical errors described in the Methods section. In Japan, the violation of a patient s informed consent rights is compensable, especially if there is physical injury [16, 17]. Japanese law might be relatively generous to plaintiffs claims in such informed consent cases. With respect to the second reason, some defendants prefer to dispose of claims quickly with relatively small payments, rather than spend much time, money and effort contesting a claim. This is done on the basis that it is sometimes difficult to prove there were Zero errors in adverse events. Medical staffs need to understand that not only the presence of medical errors, but also patients perception of miscommunication especially in cases with a non-negligent adverse event, can cause serious medical disputes and attract positive compensation. To prevent future disputes or claims, there is a strong need to improve communication between physicians and patients or their relatives. Acknowledgement The authors appreciate the assistance of the Kyoto Medical Practitioners Association (Director: Dr Hiroshi Seki), Kyoto, Japan, in preparing the comprehensive data for this analysis. References 1. Weiler P, Hiatt HH, Newhouse JP et al. A Measure of Malpractice. Cambridge, MA: Harvard University Press, Localio AR, Lawthers AG, Brennan TA et al. Relation between malpractice claims and adverse events due to negligence. Results of the Harvard Medical Practice Study III. N Engl J Med 1991;325: Studdert DM, Mello MM, Gawande AA et al. Claims, errors, and compensation payments in medical malpractice litigation. N Engl J Med 2006;354: Kagawa-Singer M, Kassim-Lakha S. A strategy to reduce crosscultural miscommunication and increase the likelihood of improving health outcomes. Acad Med 2003;78: Nakajima K, Keyes C, Kuroyanagi T et al. Medical malpractice and legal resolution systems in Japan. JAMA 2001;285: Medicine Io. To Err is Human. Washington, DC: National Academy Press, Vincent CA. The Study of Errors and Accidents in Medicine. London: Oxford University Press, Leape LL, Lawthers AG, Brennan TA et al. Preventing medical injury. Qrb Qual Rev Bull 1993;19: Bernstein AH. Paying for medical injury: no-fault in Sweden and New Zealand. Hospitals 1978;52:42, 4, Horwitz J, Brennan TA. No-fault compensation for medical injury: a case study. Health Aff 1995;14: Johnson WG, Brennan TA, Newhouse JP et al. The economic consequences of medical injuries. Implications for a no-fault insurance plan. JAMA 1992;267: Manuel BM. Sounding board: professional liability: a no-fault solution. N Engl J Med 1990;322: Clark FI. Informed consent in Missouri: where has it taken us? Mo Med 1994;91: Green JA. Minimizing malpractice risks by role clarification. The confusing transition from tort to contract. Ann Intern Med 1988;109: Gutheil TG, Bursztajn H, Brodsky A. Malpractice prevention through the sharing of uncertainty. Informed consent and the therapeutic alliance. N Engl J Med 1984;311: Leflar RB. Informed consent and patients rights in Japan. Houston Law Rev 1996;33:1 112; Takeda v. State, 54(2) Minshu 582 (Sup. Ct. 2000). Accepted for publication 9 June 2008 Page 5 of 5