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Best practices in medical malpractice defense

Published on: 
Medical Economics Journal, Medical Economics October 2022 edition, Volume 99, Issue 10

The best way to prevent a malpractice lawsuit is to prepare for the likelihood of being sued

The best way to prevent a malpractice lawsuit is to prepare for the likelihood of being sued, experts say. The more prepared a physician is, the better chances of a successful outcome. Although no physician can manage all the possible risks that lead to malpractice lawsuits, best practices include making sure you have the best insurance policy, working on patient-communication strategies, and following the right steps if a lawsuit is filed.

Insurance

Malpractice defense depends upon having good malpractice insurance. For this reason, the least expensive insurance is not always best, says attorney Christopher Ryan, counsel and co-chair of the healthcare litigation task force at Dickinson Wright in Ann Arbor, Michigan. He recommends physicians look for insurance that comes with risk management tools that can add value to a practice.

“There’s what’s called a legal defense rider, where they can represent you in depositions even where you’re not a party to the litigation. There are also risk management publications or in-service trainings that help physicians document better,” Ryan said.

Additionally, physicians should make sure they have a policy in place with an admitted carrier in their state, according to Tom Benvenuto, a senior trial attorney with Benvenuto & Slattery in Roslyn, New York. “Insurers can be admitted carriers or risk retention groups (RRGs). RRGs aren’t insured by every state, so physicians have no safeguard against the company going out of business. And then the doctor is left uninsured for any claim.”

Out-of-pocket costs for a malpractice defense would be staggering, Benvenuto said. “On top of the exposure they have with regard to indemnity, it could pretty much ruin a doctor,” he said.

Bedside manner matters

To mitigate risks, physicians should understand some of the common drivers of malpractice lawsuits in the first place. Benvenuto explained that bedside manner really does make a difference to patient experience. “Some doctors are friendlier. They shouldn’t be glib, they shouldn’t be too colloquial, but they should make it clear that they’re listening to the patient and responding to the patient,” he said.

Ryan echoed this. “I’ve seen situations where people chose not to pursue litigation because they liked the physician, whereas people will pursue litigation because they did not like the physician,” he said

So much of the patient/physician relationship is a matter of perception, according to Peter Kolbert, senior vice president for claims and litigation management for Healthcare Risk Advisors, a strategic business of The Doctors Company in New York City. He referred to a study that looked at how patients perceived the length of time their doctor communicated with them in two different scenarios. Although the sessions were the same length, in one scenario the physician was standing up, and in the other they were sitting down. “The study validated that when physicians sat down, universally patients felt the physician was more engaged and spent more time with them. In general, with patients who have complications, physicians who have been super responsive get sued less (frequently) than physicians who aren’t as responsive,” Kolbert said.

Avoid communication problems

“Bad communication is a common reason for a lawsuit,” Benvenuto said. “Or if you’re very critical when a patient has done their own research. You have to answer questions. You can’t be in a hurry.”

Kolbert feels that the communication problem can be solved simply by modeling a phenomenon he sees take place when people order food, which is also known as “closed loop communication.”

“When you order Chinese food, you place your order and the person says, ‘OK, you’ve ordered General Tso’s chicken and fried rice’ to ensure that they heard what you said, so there’s not a dispute. How often does the clinician, when speaking with a patient, ask, ‘Can you tell me what the next steps are, so that I can be sure you heard me?’ ”

Additionally, physicians may get a little too comfortable with the treatment they’re offering. So when a patient comes in for care or treatment, although it may just be another day to a physician, he said, to a patient it’s a scary, nerve-wracking and emotional day, and physicians need to remember this. Though it may seem like an extra step, taking the time to enhance a patient’s understanding at the outset of the relationship can prevent problems that lead to malpractice lawsuits, Kolbert said.

He shares an example of a physician friend who adopted the phrase “proper preoperative planning prevents postoperative problems.”

“What drives people away from the clinician’s office and to the lawyer’s office is a lack of feeling connected to the doctor, or not having a relationship with one. This comes down to physicians not setting proper expectations,” Kolbert said.

Nuances of informed consent

Most physicians understand the law of informed consent pretty well: Let the patient know what they’re signing up for before they do it. However, a problem can occur, Kolbert said, when a physician makes assumptions about common complications or side effects of a treatment and fails to alert the patient.

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“Informed consent is a recognition of the limitations of medicine. It’s a recommendation that we can’t give a guarantee; therefore it’s about shared decision-making. So physicians can spend extra time to make sure our patients understand the benefits of what we’re doing and the limitations and be active listeners,” Kolbert said

The importance of documentation

Becoming better listeners as physicians can prevent another common problem in malpractice lawsuits—poor documentation in the electronic health record (EHR). “As a lawyer, there are very few times when I’ve seen perfect documentation, a record that has everything in it that I would hope to see,” Ryan said. “It’s such a big issue, we’ve given entire presentations on medical record documentation.”

In addition to traditional notes, Kolbert said that physicians should always chart issues of patient nonadherence. “If there’s a lawsuit and (nonadherence) information doesn’t make it into the chart, when someone wants to explain to a jury that the patient refused, deferred or just didn’t do what the physician recommended, those kinds of notations really help you. The jury is not just going to take your word for it.”

The irony, Kolbert said, is that in general, most notes in an EHR will be read maybe once or twice, until there’s a lawsuit. “When there’s a problem and a claim, everyone’s going to read it front to back, multiple times, questioning every sentence and looking at every word. Therefore, it just makes good sense that when you have a problem or complication, you stop and spend a little more time writing your note. Clear writing is a product of clear thinking.”

Steps to take after a lawsuit is filed

Physicians will need that clear thinking in the instance of a claim or a lawsuit, Kolbert said. “When physicians get sued, it’s a new universe and they don’t fully understand it,” he added. Often the cases that end up getting filed are not necessarily the ones physicians would expect, so they may take a physician by surprise, Ryan said.

Benvenuto said it’s normal for a physician to want to go back in and change the note, but it’s a bad idea. “The first thing you must do is resist the urge to add anything to the note. I don’t even mean falsifying it, but just adding information that you didn’t put in the first place. Those always get you bitten,” he said.

Get a lawyer immediately

The first thing to do is call your insurance carrier and insist on speaking to a lawyer immediately, while everything is still fresh, Benvenuto said. The worst thing a physician can do is to try to ignore it or put it off. “A lot of doctors will ostrich their way through an unpleasant situation, and that’s the wrong way to deal with it,” he said.

The quicker a physician meets with a lawyer, the better, Benvenuto noted. “Generally, we lawyers try to get out there and meet these guys quickly, while conversations are still fresh in their mind, and we’ll have them create a memo that’s not in the chart that documents all these conversations because they could be very useful years down the road when there’s a difference of opinion as to what was said,” he said.

Benvenuto said that the right lawyer will get back to the physician right away. “If you find an attorney who won’t take your call, get another attorney. Most of us are used to working late, answering texts and phone calls.

Malpractice trials take time, as well, so don’t expect a swift process if it goes that far. According to Ryan, in his state of Michigan, if a case goes to trial, it takes an average of two-and-a-half years before the case is settled.

Prepare for deposition or pretrial statement

The next most important step of malpractice defense after a lawsuit has been filed is to prepare thoroughly for the deposition or pretrial statement, Kolbert said. He said that physicians need to understand how this testimony will be used to support or work against the physician, and how they can properly prepare.

Ryan agreed. “Don’t underestimate the importance of fully preparing for that deposition. Put in the time and work,” he said.

Although malpractice suits may hang like a dark specter in the back of a physician’s mind, Kolbert said that the number of adverse outcomes is larger than the number of claims on average, which are a fraction of 1% of patient encounters. “Most of the time physicians are doing a good job, but there’s always room for improvement,”
he said.


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