Liz Seegert

, it is unfortunately more a case of “when” than “if.”

	It’s no secret that physicians, especially primary care doctors,

 are at great risk of being sued by a patient sometime during their career.

 The good news is, doctors can take steps to reduce the risk of lawsuits, and improve the odds of a favorable outcome if they are sued.

	The lifetime risk of a primary care physician getting sued is 75%, according to a recent study by researchers from the University of Southern California, Harvard University and the RAND Corp. While the frequency of claims and payments actually have declined over the past decade, primary care physicians still have about a one in five chance of making a payment, whether through a trial or settlement. 

	And there are events that occur every day in medical practices that may seem harmless on the surface, but can sow the seeds of a potential lawsuit. From adding an extra note to a patient’s chart after a visit to rushing through electronic health record (EHR) screens, a minute’s worth of an innocuous action can lead to months of a physician defending his or her actions in court. 

	To help doctors protect their practices and professional reputations, 

 consulted the experts to learn the five biggest malpractice hazards facing physicians and how to avoid getting tied up in a malpractice maze. 

	“Every doctor is taught that if you didn’t put it in the chart, you didn’t do it,” says Steven Fox, MD, an internist and assistant professor of clinical medicine at the Keck School of Medicine at the University of Southern California. If it’s not in the chart, you are deemed not to have done it for the purposes of malpractice litigation, he adds. 

	Fox, a fellow at the Leonard D. Schaeffer Center for Health Policy and Economics, advises documenting all conversations. This includes summarizing patient discussions, having patients verbalize their understanding of why something is important, explaining why any clinical alerts are dismissed and noting conversations with other providers or with family members. “Most physicians don’t do a thorough enough job, even if they fill in the appropriate boxes,” he says. 

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	Michael Ellenberg, JD, a malpractice attorney in New York City, advises physicians to note every action in the patient’s chart, even if it’s just to correct something accidentally entered in the wrong field. Include an addendum, but never delete or try otherwise to modify the existing record, he says. “That’s a recipe for disaster.”  

	It’s easy to tell whether an existing record has been altered, he adds, and it can raise suspicions among juries that other things may also be amiss. Without thorough documentation, and thus only memory to rely on, a doctor is more likely to lose the case, he says. 

	The shift to patient-centered care is designed to help patients be part of the decision-making process. But that requires openness and communication by the physician about information in the medical record.  

	One approach physicians can take to boost transparency and encourage more patient engagement is to share notes with their patients, says Nitin Damle, MD, an internist with South County Internal Medicine in Wakefield, Rhode Island, and president of the American College of Physicians. Doctors may hesitate to do so out of fear that misunderstood comments could lead to lawsuits, but the idea is not unreasonable, he says. 

	While note-sharing can be tricky if done without appropriate context, it can be helpful when done under the right circumstances, Damle says. Discussing entries with patients promotes more engagement, and helps them become more active participants. “That can lead to better outcomes and enhance the doctor-patient relationship,” he adds. 

	Whether shared in person or through an online portal, physicians should take time to explain what the notes mean, such as why a test or medication was ordered, he says. Additionally, patients should never be permitted to directly modify anything in their chart. If they do need to add information, it should go in as an addendum.

	Note sharing helps physicians be more careful about using objective language when describing patient encounters. Damle says common sense should prevail when discussing a patient’s record. Entries should be factual and not derogatory or personal in any way. Keep to the medical specifics of a visit, call or referral, he advises. 

	Robin Diamond, JD, MSN, chief patient safety officer for physician insurer The Doctors Company, points out that notes need to be objective and unambiguous. “Think about how you’d feel if you saw them projected on a six-foot screen in a courtroom or if they were in the family’s or patient’s possession,” she says.

	To increase clarity, she suggests including direct quotes from patients when documenting, especially if the patient seems upset or agitated. 

	Diamond recommends also that physicians and patients review the notes together. Not only does this practice ensure that entries are appropriate and objective, she adds, it helps patients better understand their situation and any required action on their part. That reduces the potential for claims arising from miscommunication or misunderstandings. 

	While there’s a natural inclination to apologize for mistakes, fear of lawsuits prevents many physicians from even expressing empathy if something should go wrong. Instead of sharing information with patients or families, they hesitate to discuss errors, leading to frustration and legal action. 

	Thirty-six states have so-called “sorry” laws, which generally prohibit using a physician’s apology to patients or families against them in lawsuits. Specifics of these laws vary from state to state, but “showing compassion can sometimes ameliorate a situation over time,” Ellenberg says.  

	Research from the American Bar Association and elsewhere concludes that apologies do reduce the probability of getting sued. Fox points out that if a case goes to trial, juries tend to be better disposed concerning the amount of liability when doctors are contrite, rather than denying responsibility or shifting blame. 

	Even with an apology, however, a patient or family may still decide to sue. So before speaking with the patient or family regarding the error, it may be prudent for a physician to seek guidance from their practice’s medical director, hospital’s risk management department or their insurance carrier, advises Carol Keohane, MS, RN, assistant vice president for patient safety at CRICO, a risk management firm that serves the Harvard University medical institutions.

	It’s important to assess where communication or other processes may have broken down so as to prevent a recurrence, says Keohane. Common problems include not clearly communicating the significance of test results, not following up on a referral or not providing all necessary documentation to a consulting physician, she says. When evaluating ways to reduce mistakes, take a look at office workflow and staffing as well as ways to educate physicians on process improvements. 

Beware of electronic health record hazards 

  adds another layer of potential liability for primary care physicians, according to David Troxel, MD, medical director of The Doctors Company. 

	Despite the increasing complexity of care, most patients and jurors hold primary care physicians responsible for managing all of a patient’s information. EHRs are supposed to solve information and documentation issues, but don’t always provide correct or complete results, he says. 

	Providers may be tempted to use shortcuts, such as copying and pasting from templates, auto-filling fields and relying on computer-assisted documentation, he says. But that approach, coupled with a lack of updated clinical decision support and “hold harmless” clauses absolving EHR manufacturers of responsibility for errors, leave physicians vulnerable to EHR-related legal problems.

	Troxel, who specializes in EHR-related malpractice issues, cites drop-down menu selection errors as a common problem. Even if you know you accidentally selected an item on a menu, you may not be able to correct it. It’s likely that the information already has been transmitted to other parts of the health record and will remain there.

	“You basically have a time bomb on your hands,” he says, because it opens the door for another doctor to pull up a different part of the record and act based on incorrect information, such as a missed drug allergy or the wrong dose of a medication. Be sure to make copious and visible notes regarding inadvertent errors so other doctors are informed.

	In a 2015 CRICO analysis of common communication errors, the absence of the right information, including through EHRs, at a crucial point in the diagnosis or treatment process was a major contributor to patient harm. These types of communication errors are cited as a factor in 38% of all general medicine cases in the survey.

	Another common practice, turning off computer-generated warnings, can also trigger liability issues, Troxel notes. Ignoring alerts is especially common when prescribing medications. Missed dosing errors or drug interactions resulting in severe side effects or overdoses can land a physician in court.

	Under those circumstances, it’s the physician, not the EHR manufacturer, who is liable for missing alert-generated warnings, especially if documentation is non-existent or incomplete, Troxel says. 

	Troxel also warns physicians not to develop their own workarounds for common EHR problems, no matter how frustrated they get. The danger is that data may not get included in other areas of the record, and if a problem arises, the physician could be held responsible for not using the EHR as it is intended.

	Damle says his practice’s system won’t allow a physician to override an alert without a written explanation. He advises that any physician who deviates from clinical guidelines must be certain to document why, or risk being  accused of providing sub-optimal care.

	Physicians must maintain objectivity, even when patient or family dynamics are difficult. It’s important to acknowledge and calmly discuss issues that could affect outcomes, such as noncompliance with the care plan. And of course, document any conversations.

	Even if family members are involved, talk to patients directly but recognize that there might be problems with comprehension, cognition or memory, Damle advises. If a patient consents, having a family member or surrogate act as a listener and possible explainer can improve understanding and good will.

	Sometimes, it’s the family member who doesn’t agree with the care plan, and that may lead to problems later, because that person may sue or coerce the patient into doing so. But spending a little extra time to explain the diagnosis or disease process can often defuse a tense situation, Damle says.

	Part of managing the patient relationship is ensuring transparency and being realistic, Diamond points out. “Be clear with patients about expectations for treatment, follow up, medication,” Diamond says. By helping patients understand their situation thoroughly, they will get better care and be less likely to sue because of a misunderstanding.

	Conversely, doctors are more likely to get sued by a patient with whom they have a bad relationship, according to Fox. He adds that there’s no obligation to continue treating patients when there’s a bad relationship.

	Good communication and strong relationships are goals physicians and staff members can and should work toward. But even so, “you can do absolutely everything right, make every right decision, do every right test and treatment and still get a bad outcome,” Fox says, “because medicine is not certain.” 

Articles

When it comes to getting sued for medical malpractice, it is unfortunately more a case of “when” than “if.”

5 strategies to reduce malpractice lawsuit threats

Democratic presidential candidate Bernie Sanders

 promotes his version of single-payer that he calls “Medicare for all.” He says it will improve care, reduce administrative burdens and allow physicians to focus just on practicing medicine. Dissenters say it’s a pipe dream that will only lead to rationed care, lower reimbursement rates and long waiting lists.

Sanders' Medicare-for-all' plan gets mixed reviews by physicians

	Single payer is held up by supporters as the ideal egalitarian healthcare model. If other nations can provide

for their citizens, they ask, why can’t the U.S.? Opponents disparage the idea as anti-choice; they predict the implosion of the healthcare system and demise of physician autonomy. 

	Could single payer be the boon to medical practice its supporters insist? Or would we end up with a system that limits care and ignores best practices in favor of the bottom line? Who’s right?

	While the Affordable Care Act insured more people, single payer advocates say it has done little to relieve the administrative burden on physicians, and may have even made it worse. They point out that the legislation has precipitated new regulatory requirements, new practice models and reimbursement structures by both government and private insurers.

	A nationwide Physicians Foundation Survey of 20,000 doctors revealed common physician complaints of increased paperwork and overhead, too many different rules and rates from too many different payers and too much time spent arguing about coverage instead of delivering care.

	Many physicians worry that patients cannot comply with care plans because high premiums and deductibles prevent them from getting necessary medications or follow-up care. Moreover, they say, too much time is spent on insurance-related bureaucracy. That same survey found that 20% of provider time is spent on non-clinical paperwork.  More than two-thirds (69%) feel that their autonomy is sometimes or often limited and their decisions compromised. Additionally, physicians feel pressured to keep up with demand, but a vast majority (80%) report being at full capacity or overextended.

	The U. S. spends more on healthcare per capita than all other Western countries, except for Norway and the Netherlands, according to a 2014 Commonwealth Fund report. Although many Americans gained coverage under the Affordable Care Act, the U.S. is the only industrialized nation without a true “universal” system. Despite the high level of spending, most health performance measures are only average, and many are worse than those of other industrialized nations. 

	“We spend about $3.2 trillion on health and about a third of that is on administration,” says Robert Zarr, MD, president of Physicians for a National Health Program (PHNP). The organization, which includes some 20,000 physicians, medical students and other health professionals, has been pushing for a single-payer national health system since 1987. Zarr gave up his private pediatric practice to work at a Washington D.C.-area clinic, which he says allows him to spend more time with patients instead of paperwork. He contends that a move to
	single payer could cut about 15%, or over $400 billion, from total health-related expenditures, just through administrative savings.

	Single-payer proposals have been floated at least since the 1950s, according to Gerald Kominski, PhD, director of the UCLA Center for Health Policy Research. “Medicare for all”-which significantly expands existing Medicare coverage and eliminates all cost-sharing-is just one approach to a single-payer option.

	Single payer is not the same as “socialized medicine” or “universal healthcare.” Single payer refers to system financing
	under which both the collection of payments from patients and reimbursements to providers is carried out solely by the government. However, physicians can still be in private practice and work for public or private facilities, and hospitals can be public or private.

	In contrast, under socialized medicine, such as in the U.K., the government owns the health delivery systems and physicians work for the government. Alternatively, universal healthcare provides every qualified citizen of a country with health insurance. That could be a public system, like Canada’s, or a mix of public and private coverage, such as in Germany. Insurance can be paid for through various combinations of payroll and general taxes and community-rated insurance premiums. 

	Under a true single payer system, such as those in Canada and Taiwan, physicians would not have to worry about multiple contracts, fee schedules, different standards for different procedures or obtaining prior approval of services. Instead, there is a single set of payment rates and standards around what services are covered. Such a system might be simpler to deal with, says Stephen Zuckerman, PhD, health policy fellow at The Urban Institute. 

	To Kominski, the “Medicare for all” proposal being floated by Sanders sounds like a return to a traditional fee-for-service model, an approach the Centers for Medicare & Medicaid Services (CMS) has been trying to move away from in favor of value-based care.

	But it goes several steps further. It would allow patients to see any doctor, any time, without copays or deductibles. Vision, dental and mental health services, along with prescription drugs, equipment, supplies and diagnostics would be covered. This would lead to a measurable increase in demand for healthcare, which Kominski sees as a potential problem. 

Administrative costs are killing U.S. healthcare

	“There’s a tremendous body of scientific evidence in the last 30 years to indicate that people do respond to copayments, so if you eliminate them, use will increase,” he says. States would likely have to expand scope of practice rules for allied professionals. Medical practices would need to reorganize in ways that allow them to use non-MDs as primary care providers.

	There’s also no apparent role for managed care under the Sanders plan. His idea is closer to Medicare when it began in 1965, and before there were models designed to control spending. Kominski says that in the 50 years since Medicare was enacted, there has been dramatic growth in efforts to restrain health spending, including more restrictions on doctors and hospitals. The Sanders proposal might do away with those restraints.

	Single payer could allow physicians to spend less time on administrative tasks and devote that time to actual patient care, says health economist Peter Hussey, PhD, a senior policy researcher at the RAND Corporation and director of the Health Services Delivery Systems Program for RAND Health.

	“It’s one less thing to worry about–if they’re going to have access to the drug you prescribed, or the referral you made,” Hussey says. Concerns about types of insurance, covered services, deductibles, different requirements and rates would disappear.

	PHNP’s Zarr projects that single payer would bring about a “dramatic” reduction of administrative overhead costs. The resulting savings would mean more revenue for practices. It could also potentially lower malpractice premiums by ensuring greater continuity of care and government assurances to pay for future costs of additional care. “We’re spending a lot of our time doing things we’re not well adapted to do. Doctors should be providing care, not on the phone arguing about the value of an MRI that should be covered in the first place,” Zarr says.

	But administrative simplicity will come with a lot of tradeoffs, experts say.

Downsides of single payer for physicians

	Since the government sets prices in a single-payer system, doctors are left with little choice but to accept those rates or not participate at all. Critics contend the government will also dictate what services and treatments are covered based on financial considerations rather than medical necessity. That could reignite the “death panel” debate, allegations made by Republicans during the crafting of the Affordable Care Act, which claimed incorrectly that an anonymous panel would determine whether some sick people would receive health care as a way to control costs.

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	Physician compensation would almost certainly drop, according to Hussey. While an apples-to-apples comparison is difficult, he points out that in Canada, which has government-set payment rates, physicians earn less than their American counterparts. Over the long term, he wonders if this could change how medicine is practiced. “Would it make it harder to be a physician and get by financially?” he asks. 

	Kominski predicts a significant backlash should the U.S. try to hold down costs by reducing payments to physicians and hospitals. It will be difficult to persuade the medical profession to agree that for the good of the country they should start accepting lower payments for their services. “If it were easy to achieve we would have done it by now,” he says.

	Michael D. Tanner, senior fellow at the libertarian-leaning Cato Institute, has argued that in nations with universal healthcare, “attempts to control costs through governmental fiat have led to problems with access to care, either delays in receiving care or outright rationing.” He advocates more competition among insurers and providers within a free market system to generate cost savings.

	He has warned previously that an unlimited single payer model could bankrupt the country.

	Political, not medical, decisions will drive healthcare should single payer come to pass, predicts Robert E. Moffit, PhD., senior fellow at the conservative Heritage Foundation’s Center for Health Policy Studies. When unlimited demand collides with limited supply, “government officials will determine who, and under what circumstances, patients receive care,” he says. 

	Basic economics dictates that the government cannot control demand, but it can control supply through a global budget or price controls on services. Under that scenario supply does not keep up with rising demand. At best, Moffit says, quality of care suffers. At worst, there will be unnecessary deaths. “And let’s not even get started on how it will further intrude on doctor-patient relationships,” he says.

	Moffit points to overcrowded hospitals, long waiting lists for simple procedures and poor quality of care under Britain’s National Health Service as examples of what can happen when healthcare becomes an unlimited entitlement. As for reduced paperwork, “CMS issues tens of thousands of pages of rules and edicts. The idea that physicians could escape paperwork is fantasy.”

	Increased demand, combined with reduced access will fuel more dissatisfaction among patients. That, in turn, could lead to more complaints and malpractice claims, Kominski says. He’s also concerned about the overall impact on patients’ health. Sanders’ plan in particular lacks detail about what will happen to value-based care or patient-centered care-models that CMS is promoting to improve outcomes and keep patients healthier. 

	“I don’t want to see those advances thrown out the window because we have a single payer system and are basically saying you can go to any doctor or hospital you want,” Kominski says.

	The American Medical Association does not support single payer, but other organizations, including the American College of Physicians (ACP) and the American Medical Students’ Association, do. The American Academy of Family Physicians supports universal coverage but advocates a blend of fee-for-service, care coordination fees and a patient-centered medical home model.

	Zarr brushes aside doomsday scenarios. He contends that care delivery will largely stay in the hands of the private sector. He says single payer actually provides plenty of choice and gives physicians the freedom to practice how and when they want. He calls it the most important step for providers in “taking away the shackles” of the commercial insurers and allowing physicians to provide care that’s appropriate in a manner that’s appropriate.

	In addition, he predicts that single payer will reduce physician burnout and frustrations with the current system, where patients can’t afford to comply with care plans, and physicians end up providing less-than-optimal care.

	According to Zuckerman, the question becomes whether healthcare should be treated as a free market or a regulated utility. If you want everyone to be able to get it, like electricity, perhaps there needs to be more regulation of the process, and that means less competition, he says.

	Politics aside, would a single-payer system ever be feasible in the U.S.? Private insurers would disappear or become nothing more than bill processors, says Zuckerman. “Generally the transition would be incredibly difficult and it might be more than anyone is willing to tolerate because people who have health insurance don’t want to see it disrupted.”

	It would also mean the demise of a $696- billion industry that employed 588,000 people in 2014, according to an IBISWorld analysis. While Zarr says many employees could be retrained for work in a single-payer environment, Kominski isn’t convinced that would happen without significantly affecting the economy.

	Other health economists are also skeptical. Brookings Senior Fellow Henry J. Aaron, PhD, a proponent of a more incremental approach, says in 

 that the Sanders single payer proposal is a radical idea unlike any other piece of legislation ever put forth in the U.S. and one that leaves many open questions.

	Left-leaning economist Paul Krugman reasoned in the 

 that if we were starting from scratch, single payer would likely be the plan of choice, but not now, because of the political and economic climates. Krugman prefers revisiting the “public option” that was dropped from the Affordable Care Act.

	A move to universal single payer such as Canada’s would be very disruptive and probably more difficult than most patients and providers are willing to tolerate, Zuckerman says. He thinks building on the current structure of the Affordable Care Act to bring it closer to true universal coverage will be less troublesome and more achievable. 

	As for the Sanders “Medicare for All” plan, Hussey believes it’s likely not in the cards in the foreseeable future. “We haven’t signaled as a society,” he says, “that we’re ready to do that.” 

Senator Bernie Sanders has revived debate, but experts say it remains an unlikely dream in the United States.

Author | Liz Seegert

Articles

5 strategies to reduce malpractice lawsuit threats

What single-payer healthcare would mean to doctors