Avoiding Malpractice

Posted on Dec 14, 2010 in Practice Management | 1 comment

A Common Sense Guide to Avoiding Medical Malpractice

 

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In an instant, a malpractice judgment can wipe out years, even a lifetime, of scrimping and saving. What’s more, it can seriously harm your personal, family, and professional life. Here are some practical tips to avoid medical litigation and promote positive outcomes.

While we tend to think of medical litigation as a 20th century construct, the first medical malpractice case in the United States recorded can be traced back to 1794 when a Connecticut man sued his doctor over his wife’s death following surgery.[1] By 1850, medical malpractice litigation was an established phenomenon, with historical accounts from the Civil War era documenting instances of surgeons refusing to do certain procedures because of concerns about being sued.[2]

Nearly 40% of general and family practice physicians have been sued at least once in their careers[3]; 22% have been sued at least twice, with the likelihood of being sued increasing fourfold as you get older.[3] Of all of the malpractice suits brought, the leading percentage deals with errors in diagnosis, according to the Physician Insurers Association of America (PIAA). While no individual condition accounts for more than 5% of all negligent claims, diagnostic error—which can cut across many conditions—accounts for more than one-third of the claims.

But this doesn’t mean that lawsuits lurk in every patient interaction. According to risk managers and attorneys who specialize in malpractice litigation, many of the claims could have been avoided if clinicians had concentrated on communicating better with patients and with each other, provided accurate documentation, followed a diagnosis through to a conclusion, and referred patients to specialists as necessary.

Managing Your Risk

According to PIAA, primary care physicians (PCPs) are most likely to be sued for diagnostic error involving acute myocardial infarction (MI); breast, lung, and colon cancers; appendicitis; and medication problems.

Litigation involving MI is typically initiated by younger patients with negative cardiovascular histories, normal electrocardiogram (ECG) results, and atypical complaints.[4] With breast cancer, the typical allegation is that the clinician didn’t recognize the significance of a breast lump or that tests and follow-up were mismanaged. Even if you believe that a lump is merely a cyst and nothing to be alarmed about, reassuring the patient without a clear follow-up plan for monitoring changes can lead to lawsuits. If the condition turns out to be more than just a cyst, you’ll be on the line for failure to rule out breast cancer. The safest course is to order a mammogram or refer to an OB/GYN for more study. However, because of its 20% rate of false negatives, relying on mammography alone is another pitfall. You may need to observe the patient for a period of months and consider recommending a needle biopsy if the lump is still present and follow the lesion through to diagnosis. Recommend and document that your patients undergo screening colonoscopy at the appropriate intervals. If patients are at high risk for colon cancer, re-emphasize the importance of the test and document that the conversation took place.

You cannot force patients to take their medicines. But you are responsible for monitoring patients’ medications that require follow-up, such as warfarin, and you are also responsible for asking about and documenting medication allergies. Patients returning back to your practice from the hospital may also be taking new medications prescribed by a hospitalist and you must manage this ‘handoff’ to ensure that the documented medication regimen is accurate and up to date.

What else can you do to lessen your risk of being sued?

Practice Your Communication Skills. The clinician-patient interview remains the most common and important procedure in medicine. The average PCP conducts 25 interviews a day, 110 a week, 5400 a year or 162,000 interviews over a 30-year career. According to a landmark study that examined the relationship between communication skills and subsequent malpractice suits,[5] how you speak to your patients in these interviews may be the most important factor in avoiding patient litigation. Poor communication often leads to patient dissatisfaction, and the combination of a bad outcome and patient dissatisfaction is a recipe for litigation.

The researchers analyzed 1265 audiotapes of 10 routine visits each to 59 PCPs. They found that the process and tone of how the PCPs talked with patients was more important than what they said. Although the researchers found no association between malpractice claims and the content of the clinician-patient conversation, they did find a strong link between lawsuits and how that content was presented. Simple things like orienting the patient about what to expect during a clinic visit or being sure information and instructions were understood made the difference. PCPs who were not subsequently sued spent slightly longer with patients (18.3 minutes vs 15 minutes). They used more “facilitation,” cues designed to get patients to talk about their concerns and express their opinions, and were more likely to interject humor during the encounter.

Communication between clinicians is also key. Juries have little sympathy when a patient is injured because his clinicians didn’t adequately communicate with each other. The handoff between you and the specialist or hospitalist has the potential to leave patients in treatment limbo. Each clinician must be clear on what is diagnosed, what was done, and the plan of action for when the patient is discharged. It must be clear who is doing the follow-up.

Charting. In the eyes of the law, if you didn’t DOcument it, you didn’t DO it. And if you didn’t do what you were supposed to do, you can be sued for negligence. But simple documentation isn’t enough; you need documentation with legal credibility. Such documentation can be your best defense if you’re named in a lawsuit and may even help get you dismissed from the suit.

Documentation has legal credibility only when it’s contemporaneous, accurate, truthful, and appropriate. Here is what those terms mean:

• Contemporaneous: documenting the care when you provide it—include date, time, and so forth. This is especially crucial during an emergency.
• Accurate: documenting exactly what you did.
• Truthful: documenting only what you actually did or observed (no more, no less).
• Appropriate: documenting only what you’d be comfortable showing in public.

You can be honest and thoughtful in how you approach documentation by following these simple guidelines:

Be Honest. Never go back and surreptitiously alter a record, regardless of the patient outcome. One clinician had been caring for a child with H. influenzae meningitis. Despite the clinician having provided excellent care, the patient had a terrible outcome and her family sued the clinician. Because one normal white blood cell count had not been incorporated into the patient’s chart, the clinician got nervous and rewrote an entire two years of the medical record to include this white count. The plaintiff’s lawyer obtained the original records and saw they were all written, without a single error, in the same colored ink. The lawyer had the ink analyzed and proved that the ink was not even manufactured until after the patient’s claim had been filed. The clinician had a perfectly defensible case but panicked and ruined her credibility. Be honest with record keeping. Recording errors, when they occur, are best managed by a single strike through line that is initialed, dated, timed, and identified as an “error.” More extensive or significant errors may require more detailed explanation.

Be Objective. Write the record as though the patient will read it. For example, avoid adjectives such as “intoxicated and belligerent” to describe a difficult patient. Instead, use more diplomatic language: “Patient is combative; ethanol-like odor noted.” What if the patient is in a state of diabetic ketoacidosis and not alcoholic intoxication? The point is not to sidestep the truth but to choose language that is descriptive, objective, and respectful.

Be Specific. Use the word “deny” liberally, as in “The patient denies fever, pain, etc.” This tells a jury or a plaintiff’s attorney that you asked the question and the patient said he didn’t have it. There’s a need to write down exactly what the patient says. It’s also important to jot down your thinking process as to why you ordered a test or decided not to.

Be Legible. Illegible notes provide no protection and are viewed by juries as reflecting sloppy writing and, perhaps, sloppy care. When the case finally gets to the jury—which can take up to five years[6]—the medical record can be your best, and often only, friend as memories fade over time. Legible and logical notes detailing thoughtful care provide the best malpractice defense. Your safest option is to use an electronic medical record system—which brings a wealth of corroborative information to the point of care; otherwise consider dictating your notes and having them transcribed. If notes must be handwritten, make certain they are legible.

Be Competent. No doubt you are keenly aware of the need to stay up-to-date on the latest evidence and clinical recommendations, yet no one can remember everything that is needed for the care of every patient. Flow sheets, protocols, and other tools can reduce the chance that important factors are overlooked. Consider sending a patient for referral when the patient isn’t getting better as quickly as expected or wanted, when the patient or the patient’s relative expresses dissatisfaction with the care, when the patient’s presentation is atypical or the diagnosis obscure, or when the patient is critically ill or dying.

Be Aware of Subtle Patient Cues. When patients don’t pay their bills, it may be a signal that they were not happy with their care. Many practices send a series of dunning letters to patients who don’t pay. The first letter is fairly mild, the second is blunter in tone, and the third says, “We’re sending you to a collection agency.” You should have a list of patients who are due to receive the second and third letters; try to speak personally with the patient before the third letter is sent. It is surprising how often the reason that patients aren’t paying is because they are angry—angry about the way the nurse acted or something the receptionist said. For these patients, not paying the bill may be their last chance to express their displeasure. Patients appreciate the chance to have their grievances heard and addressed. At the least, they are usually happier, and happier patients are less likely to sue.

The Bottom Line

No one can promise immunity from lawsuits. However, developing excellent relationships with patients; promoting good communication with patients, colleagues, and other members of the care team; maintaining clinical competence; and producing accurate and legible charts can go a long way toward reducing liability risk.

Jill Shuman, MS, ELS
Published on December 14, 2010

References

1. Roberts RG. Seven reasons family doctors get sued and how to reduce your risk. Fam Pract Manag. 2003;10(3):29-34.
2. Mohr JC. American medical malpractice litigation in historical perspective. JAMA. 2000;283(13):1731-1737.
3. Krupa C. Medical liability: by late career, 61% of doctors have been sued. Amednews.com Web site. www.ama-assn.org/amednews/2010/08/16/prl20816.htm. Posted August 16, 2010. Accessed December 6, 2010.
4. Crane ME. Six top malpractice risks in primary care. Medscape Business of Medicine Web site. www.medscape.com/viewarticle/728306. Posted September 14, 2010. Accessed December 6, 2010.
5. Levinson W, Roter DL, Mullooly JP, et al. Physician-patient communication. The relationship with malpractice claims among primary care physicians and surgeons. JAMA. 1997;277(7):553-559.
6. Studdert DM, Mello MM, Gawande A, et al. Claims, errors, and compensation payments in medical malpractice litigation. N Engl J Med. 2006;354(19):2024-2033.