10 ways to guarantee a lawsuit

July 8, 2005

Medical mishaps are only part of the malpractice story. Here's how to prevent the nonclinical errors that get doctors in legal trouble.

Here's some good-but often forgotten-news about "the malpractice crisis": Most patients who suffer an injury as a result of medical negligence don't end up suing their doctors. Those who do, however, are often motivated not by the negligence itself, but by nonclinical factors like a lousy bedside manner or poor communication. These are the kinds of mistakes that are well within your power to fix.

We interviewed malpractice attorneys-those who work for plaintiffs as well as for doctors-and risk management consultants to come up with the following list of 10 dumb things doctors frequently do that are likely to get them sued.

1 Don't worry about keeping detailed records. The medical record is your best defense against a malpractice suit-if it's accurate. If it's not, the plaintiff's attorney will smell blood, and use the error to damage your credibility with jurors. Plaintiffs' attorney Jeffrey P. Allen, from Wellesley, MA, urges doctors to follow this rule: "Write your charts as though they'll be read by malpractice lawyers, not just your medical colleagues."

When recommending a certain treatment or medication, explain your reasoning to the patient, then document those reasons-and the fact that you explained them. Even if your decision ultimately proves wrong, and the patient suffers an injury, those chart notes will help. In malpractice litigation, you don't have to be perfect, or even right. You just have to show that your actions were reasonable for a doctor in your specialty.

The record must be complete, unambiguous, and legible. If you say you told the patient to come back in three months for a follow-up visit, but didn't note that instruction in the chart, the jury may not believe you ever said it. That's why defense attorneys warn their clients, "If it's not in the chart, it didn't happen."

2 Don't take the time to document informed consent discussions. Having the patient sign a consent form is advisable, but it's not an acceptable substitute for a detailed informed consent discussion. That discussion should be recorded in the chart. If the patient doesn't accept your treatment preference, document that also, including the reasons why you disagree with his choice.

The standard for informed consent used to be what the average doctor thought his patient should know. But increasingly, courts are basing their decisions on what a reasonable patient would want to know. That doesn't mean explaining every conceivable treatment option, but at least the reasonable ones. "Every patient has the right to decide what's going to be done to his body," says David Karp.

3 "Fix" records quickly when something goes wrong. Altering records after a patient is injured is an easy way to lose a malpractice case. No matter how pure your intentions, any corrections you make to "help" your defense will be portrayed by the plaintiff's attorney-and interpreted by the jury-as an attempt to cover up what really happened. Such record-tampering could also mean you'll be paying for the cost of the defense yourself, since many policies specifically exclude coverage when a physician has altered his records.

It's okay to review your records to check for mistakes or omissions-as long as you do it properly. Don't erase, Wite-Out, or scribble over the mistaken entry. Instead, draw a single line through it, leaving it legible, and add your initials and the date. Then write the new note, explaining why the original one was incorrect, and initial and date that also.