Malpractice: Can you spot potential plaintiffs?

December 16, 2005

Here are some of the obvious warning signs, and what you can do to keep a patient out of court.

Doctors are always shocked when they're sued. But after they tell me the details of their cases, I'm often surprised they couldn't see the lawsuit coming. That's when I drag out my smoke analogy. If you smelled smoke in your house during the wee hours, I tell them, you wouldn't just sniff the air and go back to sleep. So when the odor of litigation is strong, why roll over and snooze until the sparks turn into flames? Here are some incendiary situations to watch out for.

When the patient questions everything you do

Beware of patients who may not openly doubt your medical competence, but who clearly imply a lack of confidence by questioning everything you say and do.

"She wanted to know why her son wasn't given calcium, why he didn't get a walking cast, whether the cast was coming off too soon, and why he was still in pain several months later. The nurse answered all her questions, and explained that the break was healing properly.

"After the sheriff served me with the papers," the orthopedist continued, "I found out that the mother had taken the boy to one of my colleagues. He apparently told her that if I'd done everything correctly, her son would have already been jogging by then. Can you believe that?"

"Nothing surprises me," I answered. "The important question is, what did you do to protect yourself?"

"Well, I documented everything I did and every phone conversation I had with the mother."

"That's great," I said. "What else did you do?"

"What else could I do?"

What else, indeed? He might have spent more time with the woman early on: explaining his decisions more fully, going over the X-rays, reviewing the boy's progress, and answering her questions. He should have smelled potential trouble in all those phone calls from the worried mother, and fielded them himself rather than letting his nurse handle them.

Fortunately, we were lucky that this doctor's notes proved he'd met the standard of care. Sure, we won the case, but it might have been avoided if he'd made more effort to communicate with the mother.

When a referral is the best course

Sometimes a patient wants a second opinion, but won't actually come out and say so. In such cases you have to read between the lines, and suggest that he see a specialist as soon as possible. A family physician learned this lesson the hard way when a 63-year-old patient's routine physical revealed mild hypertension.

The FP prescribed an antihypertensive, with follow-up visits every four weeks until the man's blood pressure stabilized. Six months later, however, the patient suffered a stroke. In his suit against the FP, the man claimed that he wouldn't have had the stroke if he'd been referred to a specialist.

"Nonsense," my client told me. "The specialist wouldn't have had any better chance of preventing a stroke than I did."

"When the patient was in your office," I asked, "did he suggest seeing a specialist?"