Malpractice Consult

Lee J. Johnson, JD

Answers to your questions

When another doctor messes up

Q: A new patient complained bitterly about his previous doctor, who had diagnosed diabetes and prescribed medication. I happen to agree with the diagnosis and treatment plan, but what if I didn't? What is the "right" way to tell a patient what I would recommend when I think the previous physician missed or botched something?

A: Physicians can foment lawsuits by being unduly critical of prior treating physicians—often without the complete facts. Assigning blame to another physician's treatment is rarely appropriate or helpful to the patient.

Sometimes it even backfires: An orthopedic surgeon I know examined a patient who'd had prior knee surgery and asked the patient, "Who botched your knee?" To which the patient responded, "Why you did, doctor, a few years ago. Don't you remember?" This orthopedist was lucky he wasn't sued.

Your first priority is to reassure the patient about treatment options going forward. If you agree with the prior treating physician, explain to the patient why you feel the diagnosis and medication prescribed is correct. Give the patient literature to read. Answer all his questions until his concerns are allayed.

If you disagree, tell the patient that you can't comment on another doctor's treatment without examining the records and discussing his reasoning with the doctor. Then follow through. Call the physician, and make sure you understand his rationale.

Then you can have a more complete conversation with the patient. Explain how you reached your conclusion, but do it without casting aspersions on the other doctor. If you believe there's a better medication or procedure for the patient, explain why you think so.

In the worst-case scenario, the patient has already received treatment and there's been harm that needs correction. An extreme example is a foreign body left after surgery. You'll have to tell the patient as part of your informed-consent discussion. But stick to the facts without blame. If the patient asks you directly whether the previous physician was negligent, you might say: "I can tell you what I've found and what I recommend. But I didn't see for myself what happened, and it's not my role to determine fault."

Whatever you do, don't express disappointment at a poor result by blurting out something like, "Oops" or "I guess your other doc missed this." This can only increase a patient's anxiety and suspicions. Always keep a calm, controlled demeanor when something goes wrong—whether it was your fault or another doctor's. Even if you're upset by the results, you must inspire confidence in the patient.

No matter who's responsible for a poor result, always state the facts honestly. But there's no need for profuse apologies and confessions. Be direct and sympathetic: "When we took an X-ray, we discovered this problem. We'll do what we can to make sure it doesn't cause you any suffering."

Express sympathy for the patient's inconvenience or disappointment. Showing sincere interest and commitment to resolving the problem is paramount.

In all cases, whether you've talked to the patient or communicated with the prior treating physician, document your conversations and your recommendations.

The author, who can be contacted at 2402 Regent Drive, Mount Kisco, NY 10549, or at lj@bestweb.net, is a health care attorney who specializes in risk management issues. This department answers common professional-liability questions. It isn't intended to provide specific legal advice. If you have a question, please submit it to Malpractice Consult, Medical Economics magazine, 5 Paragon Drive, Montvale, NJ 07645-1742. You may also fax your question to 201-722-2688 or send it via e-mail to memalp@medec.com.

 

Lee Johnson. Malpractice Consult. Medical Economics Dec. 9, 2002;79:116.