Medical Economics: How to prevent a malpractice lawsuit

January 7, 2020

Frederick M. Cummings, JD, a medical malpractice attorney with Dickinson Wright, discusses proactive strategies for preventing a malpractice lawsuit.

Medical Economics: How likely is a physician to face a lawsuit during their career?

Fred Cummings, JD: Well, statistics really vary. I've seen statistics as many as a third to little over half of physicians can reasonably anticipate facing a lawsuit sometime in their in their medical career, and of those who have been to about half of those will get sued again.

Medical Economics: Can you talk about some of the top reasons that physicians are sued?

Cummings: Well, just generally, the largest reason why physicians are sued is because of either a failure to diagnose a condition or there was an unexpected complication from surgery. Or even that, you know, just any type of poor outcome may lead physician to be sued. In general, for a primary care physician, a lot of times, failing to refer a patient up to an appropriate specialist is going to get them you know, in trouble quite a bit. I often will lecture to physicians and say the primary reason physicians get sued those poor documentation. So that's the outcome is reason what motivates a patient to sue for documentation is what motivates the attorney to bring that lawsuit.

Medical Economics: One of the things many physicians are concerned about is lawsuits resulting from errors with the EHR system. Can you talk a little bit about what some of the problems are with EHR and some of the potential risks that they involve?

Cummings: Well, EHRs themselves do not cause a lawsuit. But the poor application of those that that tool does, can cause a lawsuit. Training is a big issue with individuals for electronic medical records and not knowing exactly how they work and what they're supposed to do. And then in the setup, sometimes they're not set up, as you might find in a traditional chart, for example, there is no section that indicates that the tests that came in was reviewed. That's one other aspect of it.

Another aspect of it is the repopulation of charts from prior visits, which is are, you know the copy and paste method of electronic medical records. That's a huge problem both in a primary care office as well as a hospital. I've seen electronic medical records take the hospital chart from 100 pages, this 400 pages because of repopulation. The problem with that 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 medical records that to get physicians in trouble is that they tend to rely too much on the drop down box method that you find a lot in eh RS and the only record positive pertinence that is positive final Nice during their exam, but to not spend enough time saying what is negative, you know what negative findings are wrong? In a lawsuit scenario, 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 what that's a big thing for electronic medical records. The other aspect, of course, are things that you would find in just any chart. That is information that's not correctly taken down in complete medication lists, not having your electronic medical record set up so that there are warnings if you prescribe one medication and then prescribe another medication that may be contrary indicated. So a hospital of course, has that system but now I think that we're finding the trend is that physicians are supposed to also have that in their bailiwick of their electronic medical records so that they can obviously provide Patient Safety. It's all about patient safety.

Medical Economics: in your experience, what our 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 that there is somewhat of a misconception that it's a jackpot mentality, that patients will sue because they can get a lot of money. But the fact of the matter is, especially in the medical negligence field, there's so many barriers to being able to bring a successful lawsuit that that really is not the primary driving force for people when they have to then overcome those barriers. A lot of times patients just want to know what happened.

And it's partly because the physician has not communicated what has happened, but why it's happened or given a reasonable explanation that they feel they have to seek answers. Another reason can be so solely just so that whatever has happened to them doesn't happen to others. And then there are some more 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 things. Those type of patients are quickly disillusioned by the system because we generally do not take such actions in a civil lawsuit, of course, but a lot of times patients just simply want to find out what happened.

Medical Economics: What are some communication techniques that physicians can use to prevent the risk of 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, and especially in a primary care setting, but really in all settings, the pressure to document as well as listen to the patient is overwhelming. And 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 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.

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

Medical Economics: You spoke earlier about how documentation is one of the most important things to prevent a lawsuit. What are some of the common mistakes that physicians make when it comes to documentation?

Cummings: Well, 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 quite as well. Even in the comments section that you want to make sure that all of those things are there. Why? Because somebody down the line, a lawyer or other 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.

The other thing physicians oftentimes don't do is pay attention to actually what they're doing in terms of what they're putting down. They don't check their dictation and then don't notice that words are missing. Sometimes they're very critical words, or they rely too much. And this is very true for electronic medical records, boilerplate things that they have already pre populated the chart because this is a routine thing that they do all the time. Or, or it's a condition that they treat all the Time and they already have a boilerplate. This is what we do. It's like a cookie cutter. But the problem with that is, as we know, patients aren't necessarily the round peg that will fit into that square hole, right. And so that's where a lot of times physicians get in trouble by not individualizing, you know, the patient's chart. And then every other aspect of charting that you've heard from before, still exists today, which is, charts are incomplete. Medications are not all written down in the correct amounts or what the patient presently is taking. patients 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.

Medical Economics: So if you're facing a lawsuit, what are some of the things that you should do right away to try to mitigate your risk. And what are some things you should not do?

Cummings: Well, certainly one thing you want to do is not ignore it. And I have had physicians that 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 is if you have medical negligence insurance, you want to contact your insurance carrier that is a requirement of every medical policy, insurance policy that's out there.

The next thing you want to do is marshal your records and all of the records that relate to the patient, not just the ones that you think they may be complaining about the care that might be an issue, but all of your care because everyone is going to want all of your care for that patient. Something to keep in mind. Is your charting is it is not just any particular visit that make it 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, 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 and how you feel wronged by it and how the patient is wrong and you are right and what's wrong with the legal system today. Really, what you want to do is just talk to your insurance carrier, talk to your lawyer and your spouse. And that's it. You don't want to talk and the reason is because anything you say, sort of like we here in crime shows can and will be used against you. Because that could cause people to go out and interview people that you've talked to and find out what your present state of mind was. Did you make any admissions? That's what you want to avoid.

Medical Economics: One of the things we hear about often 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, you mean ordering that test, diagnostic test or recommend your medical treatment, that may not necessarily be the best option, but it's an option that serves the physician and hoping that they don't get later sued for malpractice. And
I would say studies are mixed on this.

Believe it or not, there is some evidence to suggest that defensive medicine in fact 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 that you're doing a test, it might not be necessarily indicated, but you just want to make sure that you're protected. That is not medically ethical to do. Second, is you might not be solving the problem. And the reason for that is by ordering the test or a medical procedure that you have recommended for the patient, you are now subjecting the patient to an additional risk of harm. That may then later come back to bite you we can all see. See that scenario happening where you've ordered a test that you think might not be really necessary, but I need to, you know, make sure I've got my butt covered. And then something happens on toward in the test. And now the motivation and reason for the test is going to be at issue 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, defensive medicine, I certainly understand why it's practiced. And yes, sometimes it has been successful, but you're really increasing your risk of having a malpractice suit brought against you, and one that may not be defensible.