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Beating a malpractice suit starts with these 3 steps

Medical Economics JournalMedical Economics November 2021
Volume 98
Issue 11

Because physicians are likely to be sued at some point, they should always be working in a way that helps mitigate their legal risks.

Click here to access the full session video and slide deck (registration required).


For many physicians, it’s not a matter of if they will be sued at some point in their career, but when it will happen. In today’s litigious society, suing a doctor for a poor health outcome is a common occurrence, even when the doctor has done nothing wrong. In fact, 50% of all doctors will be sued at some point, and 7% to 10% of cases will end up going to trial. To protect themselves, physicians need to recognize how poor business practices are increasing their liability risk and take action to minimize the chance of being named in a lawsuit. Strong documentation practices are a must, and the entire office staff needs to understand how to handle patient records. And if a legal action is filed, physicians also need to know what actions need to be taken to begin a successful defense.

Learning objectives:

  • Recognize potential risk management land mines and how they can lead to increased medical professional liability.
  • Summarize practical strategies for reducing risk and minimizing the likelihood of being named in a lawsuit.
  • Identify actions to take — and not to take — if faced with litigation.

Meet the panelists:

Mike O’Neill, CPHRM, Assistant vice president of Risk Management Operations, ISMIE

Terese Souders, AIC, Regional claims administrator, ISMIE

Beating a malpractice suit starts with three risk management strategies

Because physicians are likely to be sued at some point, they should always be working in a way that helps mitigate their legal risks. The basic pillars of a strategy are documentation, communication and tracking systems.

Effective documentation requires that physicians are as detailed as possible when writing patient notes, providing thought processes when appropriate.

“Assuming you know what will happen may be true, and it oftentimes is, however, what happens when it’s not?” says Mike O’Neill, CPHRM, assistant vice president of Risk Management Operations, ISMIE Mutual Insurance Co. “So it’s documenting your differential diagnosis as far as what you were thinking it was, what you wanted to rule out in the event it wasn’t that, and what the next plan is going to be.”

O’Neill says it’s vital to avoid copying and pasting and moving bad information forward because other physicians may end up relying on this information. Simple mistakes like indicating the patient is male instead of female or a child instead of an adult can make the doctor look sloppy and make the case more difficult to defend.

Informed consent is a major area of emphasis. “If the informed consent form, which is maybe at a hospital or maybe in some other facility, were to disappear or didn’t exist, can your documentation support you?” O’Neill asks. “Don’t assume the hospital is going to have it or don’t assume it was scanned into the right chart. You have to make sure you are capturing that information on patient understanding.”

When a physician orders a test or a follow-up, they own that and need to be responsible for tracking it to close the loop. “It doesn’t always have to be the doctor that is doing all this follow-up,” O’Neill says. “Anyone from an administrative role can help that with utilization of portal messages, secure texting, secure emailing or those types of things.”

Make sure any phone calls and letters also get documented in the record. Whatever the system, it just needs to make sure patients do not get lost and that important tests get done.

No matter how diligent a physician is with documentation, a legal action might still be filed.

“The most important thing is when you receive this information, you need to contact your broker or [malpractice] insurance company immediately,” says Terese Souders, AIC, regional claims administrator, ISMIE Mutual Insurance Co. They will evaluate the information to determine if it is a legal action against the physician or something else, such as a deposition notice.

But avoid going back into the medical record until you’ve talked to a defense attorney, as everything is time-stamped and it will be obvious to the plaintiff’s attorney when you were looking at it. And whatever you do, don’t alter the record in any way.

If it is a malpractice claim, she says it’s important to not panic. Once you get over the initial shock, become fully engaged in dealing with the claim. Trying to hide it or not talk about it isn’t going to help.

“The more you are invested in it, the more that you understand the process, the more that your expectations along the way are understood and met in the process, the better you are going to feel about it and the better the outcome will be,” Souders says. “Honestly, you can tell if a physician is engaged at his deposition or engaged at trial.”

You need to be an expert in your own medical records so when a plaintiff’s attorney hands you a file, you know exactly what it is and can quickly explain your rationale for the actions you took. “We have had cases get dropped after a doctor gave a great deposition and defended his rationale for what he did and why he did it,” Souders says

Solutions and takeaways:

  • Document everything but be mindful of what you are adding and when.
  • Use good risk-management strategies to support your clinical care.
  • Communicate expectations to your team.
  • Ensure patients are safe and happy, as they are less likely to sue.
  • Know what steps to take if you are faced with litigation.

Click here to access the full session video and slide deck (registration required).

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