Prepare yourself for the potential of malpractice cases by maintaining good relationships with your patients and by following thorough rules.
When asked to speak to doctors about how to avoid malpractice lawsuits, Richard Roberts, MD, JD, has a blunt warning: they can’t, so they must learn to live with it.
“One of my key messages to physicians is to let go of their fantasy that they can be bulletproof when it come to malpractice claims,” says Roberts, a past president of the American Academy of Family Physicians and former board member of the Physicians Insurance Company of Wisconsin. “Doctors shouldn’t spend time fretting over the potential of being named in a suit because the probability is reasonably high that they will be at least once in their career.”
A more productive approach, Roberts advises, is to engage in what he calls a “cascade of risk management,” consisting of:
“It really comes down to the essence of good doctoring and being patient-centered,” Roberts says. “That means giving patients the whole truth as best you can, and delivering it with empathy and in a manner the patient can understand.”
The good news for primary care physicians (PCPs) is that they are no worse off-and in some cases are better off-than most other specialties when it comes to being sued for malpractice. A 2011 study of claims data published in the New England Journal of Medicine found that in each year from 1991 to 2005 5.2% of family practitioners (FPs,) and about 7.5% of internists had a malpractice claim against them. (The national average during the period was 7.4%.)
A 2013 paper from the same authors, published in Health Affairs, showed that between 1991 and 2005 the average FP spent about 7.5% of his or her career with an open malpractice claim, while for internists it was 10%--about the national average.
As part of the Journal study, the authors estimated that by age 65, 75% of physicians even in low-risk specialties such as psychiatry, pediatrics, FP and dermatology, had faced a malpractice claim. For those in high-risk specialties, such as neurosurgery, general surgery and orthopedic surgery, the estimated likelihood was 99%.
Faced with those probabilities, physicians could be forgiven for thinking, “Why bother changing how I practice if I’m probably going to be sued anyway?” The reason is that even though many lawsuits are indeed filed against doctors, few of them result in actual indemnity claims-only 1.6% for all physicians, and less than that for FPs. So even if you can’t avoid a lawsuit, it’s worth your while to improve your chances of winning.
The other counterproductive approach would be to practice medicine with the attitude that each patient is a potential lawsuit. “The metaphor I use is if you run down the hall looking over your shoulder you’re going to run into the wall ahead of you,” Roberts says. “You’ll do dumb stuff because you’re trying to guess what you’ll be sued for, and that’s very hard to predict.”
So what can you do to help yourself? Start by understanding what causes patients to sue in the first place. According to attorneys and risk management experts, often it is not a bad outcome alone that results in legal action, but patients and/or family members who are angry due to what they perceive as lack of communication or caring from the physician following the outcome.
“The issue that affects everything else [in malpractice litigation] is when patients are angry,” says Robin Diamond, RN, JD, senior vice president for patient safety and risk management for The Doctors Company, a malpractice insurance carrier in Napa, California. “There might be some competency issues, but in the vast majority of cases when we go in we find an issue with the relationship between the patient and the physician.”
Avoiding relationship problems requires fostering an atmosphere of mutual trust, which in turn requires effective, ongoing communication with patients. “In my experience doctors that take the time to communicate with patients don’t get sued anywhere near as often as those who don’t have good bedside manner,” says Jan Mulligan, JD, a plaintiff’s attorney in San Diego, California and member of the American Bar Association’s standing committee on professional liability.
“I’ve had clients wanting to sue multiple practitioners over a bad outcome but who want to exclude Dr. ‘X’ because they say, ‘Dr. X was always there for us and always talked to us.’ And then I have experts who’ve reviewed the case tell me that Dr. X was actually the one at fault,” she says.
Mulligan, who lectures about the importance of communication in preventing malpractice, frequently hears the complaint from doctors that they don’t have time to engage in lengthy conversations with patients. “My answer is, ‘I understand and I’m sorry, but do you know how much time it takes to go through a lawsuit?’”
But even with the severe time constraints they face, she says, doctors can take steps to improve communication by, for example, facing the patient while entering information in the electronic health record (EHR) and even allowing the patient to see the information being entered.
“My personal physician had the computer screen the examining room put in a position where we both can see it, and she’s talking to me as she’s making entries,” Mulligan says. “So she’s using her time efficiently and I feel like I’m participating in what goes into my record. How simple is that?”
Mulligan also recommends using “active listening”-repeating back the information the patient provides. Doing so reassures the patient that you’re listening to him or her, while confirming the accuracy of the information you’re putting in the patient’s record.
Diamond suggests acknowledging the time constraints right from the start of the patient encounter. “I always recommend that physicians say up front, ‘we only have a few minutes together, so let’s make good use of the time. Let’s get right to the issue because I want to hear what you have to say about what’s wrong so we can decide what we need to do about it,” she says.
Good communication skills also can help avoid the most common source of malpractice suits, which is-according to a 2013 study in BMJ Quality & Safety-failure to diagnose. And while a thorough physical examination and history of present illness are always necessary for an accurate diagnosis, sometimes they are not sufficient, says Peter Hoffman, JD, an attorney with Eckert Seamans Cherin & Mellott, LLC in Philadelphia and a member of the American Health Lawyers Association’s health care liability and litigation group. “Sometimes you need to be able to read the patient’s body language and understand what he’s not telling you to really understand what’s going on,” Hoffman says.
The importance of communication and good ‘people skills’ extends outside the examining room to staff members. Diamond notes that patients’ attitudes are formed by their entire experience in the office, including wait times and interactions with other providers and employees. For example, if a patient has to wait to see a provider, the receptionist should make sure to tell him or her they will be treated and haven’t been forgotten.
“You can be the most open and communicative doctor ever, and if you’re surrounded by horrible staff you’re still at risk,” Mulligan says.
A second common source of bad outcomes that can lead to malpractice suits is failure to follow up on a recommended treatment or diagnosis. Here is where practice protocols and an attention to detail are crucial, experts say. “If you’re referring a patient to a specialist, go the extra mile to make the referral happen,” says Hoffman. “Make the call yourself if necessary, rather than just telling the patient where radiology is located and the hours they’re open.”
Written protocols and procedures are also crucial defense weapons in the event of a lawsuit. Without them, if challenged to show you followed up with a patient you’re left with saying “it was my normal office practice,” Hoffman says.
Diamond recommends assigning a staff member responsibility for ensuring that patients obtain the recommended consultation or test, and that the practice gets the result back from the lab or specialist. “There has to be a written protocol in place for making sure everyone knows who’s responsible for making sure that the consult was done, and if it wasn’t, how the patient will be contacted,” she says. As part of that process, staff members should be encouraged to get to know their counterparts in the labs or specialist offices, she adds.
But even the most empathetic and careful physician faces a good chance of being sued some time in his or her career. When that happens, thorough and accurate documentation of everything done for the patient becomes the physician’s best defense weapon.
Diamond cites the hypothetical example of an elderly patient refusing an influenza vaccination despite being warned that she’s at high risk for the disease. The patient later contracts the disease, which turns into pneumonia, leading the patient to sue.
“If the patient and physician discuss this openly on the front end, and there was documentation to show there was clear communication, then the likelihood of a decision against the physician is very small,” she says. “Juries really hear it when physicians are able to show they were open and honest with the patient.”
“I tell doctors they don’t have to make perfect judgments all the time,” says Roberts. “What they do have to do in their record-keeping is to provide a plausible rationale for the decisions they make.”
The spread of EHRs has been both a benefit and drawback in physician’s quest to avoid malpractice suits, experts say. Among their benefits are features such as prompts and reminders, ready access to clinical decision support and not having to struggle with the poor handwriting of other providers can reduce the odds of a medical error and make it easier to follow up with patients.
On the other hand, the temptation to “clone” notes-copying and pasting information from prior visits with the patient or entered by other providers-can be overwhelming for time-pressed physicians. Diamond notes that some EHRs automatically populate fields from prior physicals each time a patient comes for a new one. “There may be some information that doesn’t get updated and which continues to get cloned,” she says.
Moreover, the ease of adding information from multiple providers means that vital information can get lost amidst the accumulated mountain of data, Mulligan points out. She cites the case of a patient with a fungal infection that no one was able to diagnose because the relevant lab results were buried under the notes of the numerous specialists consulting on the case.
“We’re not seeing allegations that EHRs were directly responsible for injuries, but we are seeing an uptick in EHRs mentioned in depositions or expert testimony,” Diamond says. “So plaintiffs’ attorneys are definitely bringing those issues up more often.”
In the end, says Roberts, reducing the likelihood and impact of malpractice suits comes down to focusing on the fundamentals of medical practice. “You always start at ‘what can I do to reduce the risk or harm to this patient? ’and then doing whatever you can to make the patient a full partner in the treatment process.”
A bad outcome alone usually will not drive a patient to sue for malpractice. Rather, it is the outcome combined with dissatisfaction with other aspects of the patient-physician relationship that leads to lawsuits, says Robin Diamond, RN, JD, senior vice president for patient safety and risk management for The Doctors Company. Diamond offers the following recommendations for enhancing patient satisfaction and reducing the likelihood of being sued:
For staff members
Everyone who interacts with patients