Loud and clear

Robert Martin, president of the Association of Healthcare Risk Management of New York, has a unique perspective on healthcare risk management based on 25 years as a defense attorney specializing in medical malpractice and other forms of negligence. He told HRMR why good communication is often the key to successful risk management.

As president of the Association of Healthcare Risk Management of New York, Robert Martin has a lot on his agenda. The society is working to build links with neighboring chapters in New Jersey and Connecticut and is seeking to extend its presence on Long Island and upstate.

With between 250 and 300 members, the association has a lot of people to keep happy and informed, all of whom approach the subject of healthcare risk management from a slightly different angle.

“Our membership includes hospital risk managers, other management, insurance carriers, brokers and defense attorneys, as well as educational providers,” says Martin, who is an attorney located in the New York office of London Fischer LLP, a firm with offices in New York and California.

The society addresses their needs with a huge range of educational sessions throughout the year, covering everything from enterprise risk management (ERM) to the use of robotics. It also publishes a quarterly risk management journal, which offers some very thought-provoking perspectives on risk management, including articles from a highly regarded plaintiffs’ attorney, who gives the view from the other side of the fence. The organization also engages in public advocacy on issues important to the membership.

Martin is a litigation attorney with 25 years’ experience in medical malpractice defense, as well as defense of other forms of negligence claims. He is proud to practice in New York State, which has blazed trails in terms of creating innovative ways to address and resolve medical malpractice lawsuits.

Of particular interest to Martin is the state’s fund for neurologically impaired infants—an emotive topic, and an issue that Martin has seen addressed many times in court.

“The fund has been very helpful because essentially it is a no-fault type of fund where, if it is found that the infant meets the criteria to be in the fund, the funding for the lifetime care is taken over by the fund as opposed to being an incident of damages against the individual hospital,” he says.

“Creating the fund was a complex deal but it’s been very helpful and it has been looked at as a model that perhaps can be expanded into other areas.”

The state has also been pushing a model for aggressive early dispute resolution as a mechanism to deal with cases before they reach trial.

“I’ve been impressed by the way the state has been looking to model different approaches to resolving these issues,” says Martin.

Facing the inevitable

In more than 25 years as a defense attorney, Martin has learned time and again that even the most dedicated, careful healthcare professionals can, and do, end up as defendants in medical malpractice cases—often because they have had to undertake high risk procedures with unfavorable odds for success.

"An energetic and skilled plaintiff’s attorney will have 101 different ways of asking whether there was some form of peer review and try to get at it.”

“I’m not saying every provider is perfect, but there are so many good providers and good facilities that try hard to take care of people. The numbers of patients who receive excellent care is tremendous. I am proud of my state—we have some of the best healthcare anywhere. You see providers who set out to save lives—I know some who have done heroic stuff—but there are times when things do not work out as hoped.

“Certain hospitals specialize in handling high risk cardiac cases, trauma cases, etc. By virtue of the fact of having high risk cases you have the greater risk of mortality or morbidity than if they had chosen not to take the high risk patients.

“It’s not because you’ve done anything wrong, it’s because sometimes medicine is an art as well as a science, and human beings aren’t made in a factory—they are unique,” he says.

One thing Martin has seen proved many times, however, is the importance of clear communication, both orally and in records. Martin cites the importance of communication between the staff of a hospital, between the staff and patients and their families, and between the staff and outpatient care. Handled properly, this can achieve everything from preventing errors to assisting in the avoiding of litigation and, if necessary, to preparing the best possible defense if a matter ends up in litigation.

“A lot of issues come up because of poor communication between providers and the patients and family members. Good communication is essential, and part of that is ensuring everyone is listening and understanding. This is especially important in diagnosis: arguably the most important part of a diagnosis is taking a good history, with both sides listening and speaking with each other, and proper recording of information into the medical record.”

The same meticulous approach needed for good record-keeping should be applied when investigating why an incident has occurred.

“You need a solid, objective root cause analysis (RCA) based on an understanding of everyone involved in the process—the providers, everyone down the line; you’re all in this together,” says Martin.

Protecting the process

If a case goes to court, a meticulous approach to peer review processes can help protect the defendant. Under New York state law, only statements of a defendant physician are discoverable from a peer review, but there are potential loopholes that need to be closed.

“The protection of the peer review process must be iron-clad. You can’t let anyone who is not part of the peer review circle into the peer review, even by emails,” says Martin.

“This is important because it allows providers to perform the intended function of improving themselves so that they take better care of patients without worrying that any frank analysis after the fact by others within the peer review circle which might be useful to prevent future similar occurrences will be used as a club at the time of trial.

“The discovery of this information will therefore have a chilling effect on self-improvement and quality of care for future patients. It’s a big issue because an energetic and skilled plaintiff’s attorney will have 101 different ways of asking whether there was some form of peer review and try to get at it.”

Another lesson that Martin has learned is that when a case does go to court, it can give the plaintiff and the provider a powerful sense of closure. The power of this to heal emotional wounds should not be underestimated, he says.

He recalls one case that revolved around an alleged failure to diagnose resulting in death.

“I represented a wonderful caring physician; the plaintiff was the deceased person’s brother who was supposed to see his brother earlier in the day before he died and felt guilty he didn’t come sooner, although I believe the evidence showed that it would not have made a difference. To him, it became clear, the case was about much more than money.”

For those plaintiffs who enter the system not simply to seek a large cash award from a jury, but to find the truth, Martin said that the practice of law in New York and the US brings him the greatest satisfaction.

“I walked out of the courtroom after my client received a defendant’s verdict and was speaking with my adversary about logistics, post-trial motions and so on when we turned around and saw the doctor and the brother crying and hugging each other.

“They both needed closure and they got it. Not every day in this profession is like that, but at times like that you feel you can walk away having accomplished something positive by not only helping a good physician to vindicate her care, but to help a human being to get an answer and closure.”