Avoiding medical malpractice suits

Medical Economics Journal, Medical Economics October 2021, Volume 98, Issue 10

Preemptive actions can limit a physician’s exposure to litigation

To err is human. So the question is not whether a medical malpractice lawsuit will be filed against a physician, but when.

As physicians pick their way through this minefield, if they’re not careful, one lawsuit from one patient could define their entire career, and lead to a loss of revenue, increased insurance costs and a massive hit to a physician’s professional reputation.

Bob White, chief operating officer of malpractice insurer TDC Group, says that some specialists such as neurosurgeons or obstetricians can spend as much as 25% of their career with an open malpractice suit against them.

“The sheer psychological fatigue that that creates for them is no small distraction for folks who’ve gone through it,” he said.

There are actions physicians can take to reduce their exposure to litigation.

Document as much as possible

The standard defense to lawsuits for years has been to maintain proper documentation, which White says has been greatly helped by the widescale adoption of electronic health records, but there are still limitations.

“There’s a finite amount of time that someone has to document things and we try to be practical when we talk to doctors about how to document, especially when a patient or the patient’s family is having difficulty in accepting the outcome of treatment,” he says.

Matt Gracey, former CEO of medical malpractice insurer Danna-Gracey and managing director of risk management firm Risk Strategies, says any lawsuit filed can become a much greater headache for the physician if patient records are not accurate, clear and timely.

“The most important document they can have in their patient records is a consent for treatment,” he says. “Those consent forms spell out all the risks of any procedure that the doctor is going to perform on a patient.”

A physician’s legal representative can present proper consent forms to a jury and highlight that the patient agreed to the service after being informed of the possible complications, thereby easing the way to win in the courtroom.

Gracey says the complaints in many malpractice suits are often tied to a known complication of a treatment and that the public often mistakenly assumes that when these known complications arise it is the doctor’s fault.

“It’s that confusion that leads to many lawsuits, and that’s a fundamental part of risk management: to make (the risks) clear to patients in writing, and that’s what the consent form is about — that even if the doctor doesn’t make any mistakes there still can be bad outcomes,” he says.

Sean P. Byrne, JD, founder of Byrne Canaan Law in Richmond, Virginia, has defended physicians in medical malpractice cases for 20 years. He says that proper documentation is key because the cases he handles often take years to reach a courtroom, which can lead to failed memories. Juries view contemporaneous documentation as more reliable than eyewitnesses, Byrne says.

Although medical documentation can be onerous to deal with, it is the first thing a potential plaintiff will take to a lawyer when seeking to file a malpractice suit. Lawyers determine whether to file cases based on expert analysis of these records, he explained.

“It’s the chart that tells the story of the case,” Byrne says.

He notes that the opposing medical expert will be looking for what was documented to determine whether the physician provided good care; if the treatment wasn’t documented, it’s as though it wasn’t done.

Byrne says that physicians should avoid just using the checkboxes and autofill templates in electronic health records because those might not encompass all of the care given to a patient.

“What I really love is a patient-specific narrative that shows you gave thoughtful, individualized care to this patient; that part of the documentation is gold,” he says.

When documenting patient interactions, White suggests noting what the physician initially recommended as the optimum course of care if that differs from what the physician and patient agreed upon as the treatment plan.

He says that physicians often get into trouble when they only document the care plan they and the patient finally select. When outside experts such as a physician’s attorney examine such records, they can’t defend what the doctor initially recommended if that suggested optimum care and treatment were not documented.

Communication is key

Although documentation can serve as a good defense in a malpractice suit, Gracey says that maintaining a solid relationship with a patient and their family is a good preemptive move.

“What really stands out when you look at the data and surveys of patients is that very few doctors who have great relationships with their patients get sued, even when there are bad outcomes, and even when there’s malpractice, and that’s why the doctor-patient relationship needs to be on top of the list,” he says.

All of the staff should be instructed to emphasize good patient relationships from the moment the patient enters the office. Gracey says that patients already assume their physician is educated and skilled, but when they have a good relationship with the doctor and their staff, they believe the practice cares about them.

“Caring doctors get sued much, much less than doctors whose patients don’t get that warm and fuzzy, caring feeling from their doctors,” he says. “It’s a different take on risk management, which is mostly defensive. The offensive mode, (to avoid) being sued, is just to be really caring and have great relationships with patients and their families.”

If something goes wrong

The period between an adverse outcome and the filing of a malpractice suit can be fraught with anxiety for the physician.

Byrne says many defense attorneys used to tell their clients not to speak to the patient or their families at all after a poor outcome, but he now emphasizes listening to patients and their families after something goes awry during care. He tells clients to be candid and honest with the patient and stick to the facts without speculating, as speculation can erode any confidence the patient or family has in the physician.

“If there’s other information that needs to be gathered to have more answers, and you offered a follow-up, then do it,” he says. “Follow up and do it.”

Although any communication should be run past a defense attorney, White says that being open and available to the patient or their family can do wonders. He says that TDC Group tells doctors to sit down with the patient or family and discuss the adverse outcome.

“You explain that this is one of those kinds of complications that can occur in delivering treatment, and it’s not about a failure on the part of the patient’s ability to heal or anything else, this is one of the possible outcomes from this treatment,” he says.

Furthermore, White adds that physicians should explain that you will be available when needed, in case of questions and concerns.

“You want to help them get through this,” he says. “Be there for the patient.”

Gracey warns about apologizing when something goes wrong, as that can affect the physician’s liability in some states, though an apology often is exactly what the patient or their family are looking for after an adverse outcome.

“It’s really what patients and families want,” he says. “However, some risk managers and some states say that’s absolutely the wrong approach because they can use that in court against you.”

Gracey says that if the physician does communicate with the patient or their family after an adverse outcome, they should not admit guilt because their statements might be used in court against them.

Dealing with COVID-19

It’s still unknown what impact the COVID-19 pandemic will have on medical malpractice litigation.

Byrne says it’s too early to tell as most medical malpractice claims take at least a year to mature. He believes there will be more cases in the COVID-19 era because early in the pandemic when resources were stretched many patients deferred routine care and preventive screenings.

White believes that the pandemic will not lead to a rise in COVID-19 medical malpractice cases against physicians.

He notes that the most common allegation against doctors is failure to diagnose or treat the patient in a timely manner. With COVID-19, physicians are unable to cure the patient, which eliminates part of the common complaint.

“With this pandemic, all they can do is treat the symptoms, they can’t cure the disease,” he says. “So the delay only matters if you fail to recognize and respond to the more dire symptoms, difficulty breathing, for example. That’s the only real potential that (plaintiffs) have.”

He says that of the 80,000 physicians the TDC Group insured in 2020, only 10 have pending claims related to the COVID-19 pandemic.

Many states, such as Florida, have granted certain immunities to physicians protecting them from lawsuits tied to the pandemic. Gracey points out that there are some federal protections as well.

“It’s too early to tell if the if the federal protections will be strong enough or not, but it certainly looks like some of the state-enacted protections will be strong,” he says.

Although he expects many lawsuits to be filed, Gracey believes that once many of these cases are thrown out due to legal protections, the increased filings will quickly taper off.

Byrne also notes that the public health emergency surrounding the pandemic may lead the public to better understand the difficulties of practicing medicine, which could lead to fewer cases being filed. He has tried a few cases during the pandemic, and although they have nothing to do with the pandemic, he’ll mention COVID-19 to the jury.

“In part to just say to jurors that if we’ve learned anything from COVID-19, we’ve learned how difficult the science of medicine is, how quickly things evolve and how so many very sad, difficult outcomes are really unpreventable despite the best efforts of great people,” he says.