How to prevent a malpractice lawsuit

June 11, 2020

Studies have found that about half of all physicians will face a malpractice suit at some point in their career.

The threat of a malpractice lawsuit is something every physician worries about.

And for good reason. Studies have found that about half of all physicians will face a malpractice suit at some point in their career. But, despite these statistics, doctors should not think a lawsuit is inevitable.

In fact, malpractice experts say there are practical steps that physicians can take to prevent lawsuits. It boils down to having open, honest communication with your patients - and documenting those encounters clearly and comprehensively.

Medical Economics® (ME) recently sat down with malpractice attorney Fred Cummings, J.D., of Dickinson Wright in Phoenix, Arizona, to discuss ways physicians can proactively defend themselves against the threat of a lawsuit. The interview below was edited for length and clarity.

Medical Economics®: How likely is a physician to face a lawsuit during their career?
Fred Cummings, J.D.: Statistics really vary. I’ve seen statistics showing that as many as a third to more than half of physicians can reasonably anticipate facing a lawsuit at some point in their medical career. And of those who’ve been sued, about half of them will get sued again.

ME: Can you talk about some of the main reasons physicians are sued?
Cummings: Generally, the main reason why physicians are sued is because of either a failure to diagnose a condition or an unexpected complication from surgery. Or even just any type of poor outcome may lead to a physician being sued. In general, for a primary care physician, a lot of times, failing to refer a patient to an appropriate specialist is going to get them in trouble. I often lecture to physicians and say the primary reason physicians get sued is poor documentation. If the outcome is the reason that motivates a patient to sue, it’s documentation that motivates an attorney to bring that lawsuit.

ME: Many physicians are concerned about lawsuits resulting from errors with the EHR system. Can you talk a little bit about some of these problems and the potential risks?
Cummings: EHRs themselves do not cause a lawsuit. But the poor application of that tool can cause a lawsuit. Training is a big issue - not knowing exactly how they work and what they’re supposed to do. And sometimes they’re not set up like you might find in a traditional chart. For
example, there isn’t a section that indicates the test that came in was reviewed.

Another aspect is the repopulation of charts from prior visits, which is the copy-and-paste method. That’s a huge problem in a primary care office as well as a hospital. I’ve seen electronic health records take the hospital chart from 100 pages to 400 pages because of repopulation. The problem is that sometimes, hospital-day one is transferred as if it were in existence on hospital day five. We got an improvement without any additional therapies. Just the last sentence is what the doctor did on post-op day five. That’s a problem because we’re going to assume that the records on that day reflect what the patient’s care was.

The other aspect of electronic health records that get physicians in trouble is that physicians tend to rely too much on the drop-down box method that you find a lot in EHRs. In a lawsuit scenario, if something isn’t marked, sometimes that’s interpreted as you didn’t check. And I know that every physician has heard, “If it’s not documented, it didn’t happen.” Right? That includes recording the negatives. And that’s a big thing for electronic medical records.

Another aspect, of course, are things that you would find in any chart: information that’s not correctly taken down in complete medication lists, not having your electronic medical record set up so you receive warnings if you prescribe one medication and then prescribe another medication that may be contrary. A hospital, of course, has that system in place, but now I think we’re finding the trend is that physicians are also supposed to have a similar system in their bailiwick of their electronic medical records. It’s all about patient safety.

ME: In your experience, what are patients really looking for when they sue for malpractice?
Cummings: You know, physicians are surprised sometimes to find out that patients aren’t solely motivated by money. I think there is somewhat of a misconception that it’s a jackpot mentality - that patients sue because they can get a lot of money. But the fact is, especially in the medical negligence field, there are so many barriers to bringing a successful lawsuit that money really is not the primary driving force. A lot of times patients just want to know what happened.

And that’s partly because the physician has not communicated what happened and why it happened or given a reasonable explanation - so patients feel they have to seek answers. Another reason can be solely so that whatever happened to them doesn’t happen to others. And then there are some surprises. Rising motivations including revenge, getting back at the physician - “If they did this to me, I want to make sure they don’t practice again.” Those type of reasons. Those type of patients are quickly disillusioned by the system because we generally do not take such actions in a civil lawsuit. But a lot of times, patients just simply want to find out what happened.

ME: What are some communication techniques that physicians can use to help prevent a malpractice lawsuit?
Cummings: Communication is essential. And that is really the root of all relationships, isn’t it? And no more so than a physician-patient relationship. And sometimes, of course, the pressure to document and listen to the patient is overwhelming. A lot of times, patients complain about the fact that, “The doctor never looked at me. He was spending the whole time on his computer. He was saying that he was trying to input what I was saying, but he never looked at me. And then he didn’t really explain what he was doing. I didn’t feel like he listened to me.”

I can tell you, especially in the primary care field, if a patient feels like they’ve been listened to - that you heard their complaints and then explained why they were feeling what they were feeling and what you were going to do about it - you create a bond. That’s how you do it. Through communication. Making them feel that they’re part of their health care.

ME: You spoke earlier about the importance of documentation. What are some common mistakes that physicians make when it comes to documentation?
Cummings: First of all, it’s to document in and of itself. Do not abandon your tried-and-true principles of the SOAP format - subjective findings objective findings, assessment and plan. Do not abandon that because your EHR doesn’t seem to fit it quite as well. Even in the comments section, you want to make sure all those things are there. Why? Because somebody down the line, a lawyer or another physician, needs to know what your thought process was. And sometimes, just putting down the bare bones will create a false impression in the record.

Also, physicians often don’t pay attention to what they’re actually putting down. They don’t check their dictation, so they don’t notice that words are missing. Sometimes they’re critical words, or they rely too much on their memory. And this is very true for electronic medical records, boilerplate things that they have already pre-populated in the chart because this is a routine thing they do all the time. Or it’s a condition they treat all the time, and they already have a boilerplate. This is what we do. It’s cookie cutter. But the problem is, as we know, patients aren’t cookie cutter. The round peg doesn’t fit into that square hole, right? And so that’s where, a lot of times, physicians get into trouble - for not individualizing the patient’s chart.

And then every other aspect of charting that you’ve heard about before still exists today, which is that charts are incomplete. Medications are not all written down in the correct amounts or what the patient presently is taking. Patient medical histories aren’t recorded. Essentially, the patient chart is your documentation of your interaction with this patient and your understanding of the patient’s health care. And if something’s missing, then that’s going to get exploited later.

ME: So if you’re facing a lawsuit, what are some things you should do right away to try to mitigate your risk? And what are some things that you should not do?
Cummings: Certainly, you do not want to ignore it. I have had physicians who, on day 23 - three days after they’re supposed to answer the complaint - call me and say, “I got this complaint, but I don’t know what to do with it.” And so what happens is not necessarily good for the physician. The first thing you want to do is not ignore the fact that you’ve been sued. The second thing you want to do, if you have medical negligence insurance, is contact your insurance carrier, which is a requirement of every medical policy, insurance policy out there.

Next, you want to marshal your records and all the records that relate to the patient - not just the ones that you think relate to the care that might be an issue, but all your care for that patient. Because everyone is going to want to see all your care for that patient. Something to keep in mind: it is not just any particular visit they may be focused on, it may be your continuity of care, and whether that was present or not. So that’s another thing. Here’s what you don’t want to do. You don’t want to change the record, you don’t want to modify the record and you don’t want to add to the record. You want to keep the record as it is.

The second thing you don’t want to do is talk to everyone about the lawsuit - how you feel wronged by it, how the patient is wrong and you’re right, what’s wrong with the legal system today. Just talk to your insurance carrier, your lawyer and your spouse. That’s it. You don’t want to talk, and the reason is because anything you say - sort of like we hear on crime shows - can and will be used against you. That could cause someone to go out and interview people you’ve talked to and find out what your present state of mind is. Did you make any admissions? That’s what you want to avoid.

ME: One of the things we often hear about is that physicians practice defensive medicine to try to prevent lawsuits. Does defensive medicine actually work? Does it actually help prevent a lawsuit?
Cummings: Well, if by defensive medicine, do you mean ordering that test or recommending medical treatment solely to reduce the threat of a lawsuit? That may not necessarily be the best option. Is it an option that serves the physician hoping that they don’t get later sued for malpractice? I would say studies are mixed on this.

Believe it or not, some evidence suggests that defensive medicine works. However, there are downsides to that. And let’s just talk about things that aren’t legal, the medical ethics of it. Because if you know you’re doing a test that might not be necessarily indicated, but you just want to make sure you’re protected, that is not medically ethical. Second, you might not be solving the problem because by ordering the test or medical procedure, you’re now subjecting the patient to additional risk of harm. That may later come back to bite you. We can all see that scenario happening: You’ve ordered a test that you think might not be necessary, but you need to make sure your butt is covered. And then something happens as a result of the test. Now the motivation and reason for the test are going to be issues as well. And so let me tell you where that goes - the doctor is putting profits over patient care. And that is a deadly argument in a jury trial.

So I certainly understand why defensive medicine is practiced. And yes, sometimes it’s successful, but you’re really increasing your risk of having a malpractice suit brought against you. And one that may not be defensible.

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