Why we've never been sued for medical malpractice

March 21, 2008

This doctor and his partners have stayed out of the courtroom for nearly 30 years. Learn how to follow their lead.

Key Points

The doctor who has never been sued is a rare breed whose numbers are dwindling. I know this because I've served as an expert witness for the defense for more than 10 years, with increasing frequency. My legal experience has broadened my insight into what patients and plaintiffs' attorneys consider to be grounds for a malpractice action. It has also made me question why our six-doctor internal medicine/rheumatology practice has never had a malpractice claim filed against it in almost 30 years of existence. Is it just blind luck?

I've reviewed too many cases in which competent, knowledgeable physicians were sued because of patients' unrealistic expectations to deny that luck is a major factor (knock on wood!). But I can also say with certainty that we've created a system with multiple fail-safes that lowers our risk.

You can do it, too. Here are the major components:

As an example, the note that reads "chest pain; plan stress test ASAP" will not hold up in court if the patient suffers a major cardiac event in the interim. Compare that to my appraisal of the patient's chest pain: "I doubt it's ischemic, but in light of the multiple cardiac risk factors, we'll proceed with a stress test ASAP; in the interim, if the patient's symptoms intensify and/or he develops symptoms at rest, we're to be notified immediately." We follow this with the details of any medications we've prescribed and tests we've ordered. Remember, the rule in court is, "If it isn't written down, it wasn't done."

We also attach color-coded, task-specific adhesive messages to charts to document prescription renewals, patients' questions, and our instructions. We record the time the message was generated as well as the time we responded to it and what we recommended (i.e., "Please come back to the office for further evaluation").

Review everything in the chart. We have a rule: Absolutely nothing goes into the permanent chart until a physician has reviewed and signed off on it. That means all notes, labs, radiology reports, communications from consultants, and hospital reports must be initialed. We do this to ensure that an abnormal mammogram or PSA, for example, does not go unattended.

Communicate with patients. This sounds trite, but it's incredibly important. We make a tremendous effort to have incoming calls answered by a person, not a machine, and to respond as quickly as possible. Usually we return a call within a few hours-but not before the entire chart is pulled and placed in the doctor's message stack. This takes a little more time, but having the chart on hand when the call is returned heads off a lot of problems.

We also write letters to new patients and to established patients who come in for their annual exam. This provides both written reinforcement of our plans for treatment or follow-up and documentation in case our actions are challenged.

Be available. We typically see patients on the same day for urgent problems; and, even on heavily booked days, we try to work in those with nonemergent conditions who call and ask to be seen as soon as possible.