"Avoiding Your Day in Court," Physician Leadership Journal

September 30, 2016

Avoiding Your Day in Court

MORE LIKELY THAN NOT, A PHYSICIAN WILL be sued at least once during his or her career.1 Lawsuits not only impact insurance rates, but also impact physicians’ lives. No one wants their professional judgment to be called into question, and no one wants the distraction and expense of being a defendant.

Time spent preparing for and giving depositions, answering interrogatories and meeting with your litigation counsel is time lost caring for patients and producing revenue. Some doctors lose sleep over it—literally. And lawsuits are chronic, not acute. They can hang around for years. Is it inevitable? Not necessarily. There are things a physician can do to improve his chances of avoiding his “day”2 in court.

Of course, it goes without saying that the best way to avoid getting sued is to practice good medicine—to be thorough, to follow up and to document. But advice to “be wise” and to “keep your mistakes to a minimum” is useless. Let’s look at points in the physician-patient encounter when something might go awry, when the patient may lose faith in the physician or when the physician misses the opportunity to improve the outcome.

FAILURE TO COMMUNICATE—The family doctor of the 1960s rarely was sued. He was available around the clock if needed, doing his best, making house calls, caring for the entire family. He (almost always a “he” then) was a trusted friend and when sickness was overcome, he was a hero. When outcomes were bad, everyone knew that he “did the best he could.” He was revered by his patients.

Today’s doctor is often viewed as a vendor of services. A general practitioner may know fewer than half of his or her patients. Care is delivered by specialists, by hospitalists and by others—often in single encounters. Patients come and go because society is more mobile, because a change of insurance may dictate changing doctors and because consumers shop for the convenience of the neighborhood clinic and may see a different physician every time they have a need.

The lack of continuity of care not only poses risks for poor care, but fails to create trusted physician-patient relationships. Nevertheless, there is still an opportunity to establish a rapport with the patient and it is key to minimizing the physician’s risk. It relies on good communication and starts in the reception room, at intake and/or at triage.

The patient shouldn’t be angry before he or she ever gets to the physician. Introduce yourself and express your concern and desire to help. And listen—give the patient the opportunity to explain symptoms and history of illness. Spend time with the patient; no one should feel the physician is too rushed to understand the problem. Make eye contact, let them know you see them, not just the lump in the armpit. Lower expectations when appropriate. Let the patient know that a pill won’t fix it, or a specialist may be needed, or this operation isn’t always successful. Clearly instruct on the need to follow up. Ask the patient to agree to the plan of care. Have the patient “buy in” and document their consent to the plan.

Whether an encounter for an acute illness, a referral for a specific problem or management of chronic conditions, physicians who are nice, sincere and liked by the patient are less likely to be sued. Physicians who appear not to listen and care are more likely to be referred to as a “party” (and not the fun kind). Failure to communicate leads to lawsuits.

As important as communication with the patient is com-munication with other physicians. Poor coordination between primary care providers and specialists or hospitalists can result in errors such as medication omissions or the failure to provide adequate home care.

When referring to a specialist, be clear what referral is being made. Is it the patient or the problem? Patients can suffer complications from conditions other than the reason for the referral, which go untreated due to a misunderstanding. In the hospital, referrals should be physician to physician. It should be clear whether implementation of a plan to address the problem is the specialist’s responsibility or the attending physician’s responsibility. Expect a written report from the specialist, and as the specialist, expect to provide one. Never rely on the patient to relay the findings.

For inpatients, communication should be in the chart. A frequent cause of litigation is lack of communication between physicians.

PAPERWORK COUNTS—A patient encounter that is well-documented is far less likely to end in lawsuit. Plaintiff’s lawyers rarely take weak cases; they are simply too expensive to pursue. Physicians may avoid suit by “making your case for good care” in your documentation. If the physician documents the complete history taken, then we know it was actually taken. If he or she writes down the patient’s subjective statements, and documents the objective inconsistencies, when observed, it is clear the physician was not merely going through the motions.

(For example, if the patient claims 10/10 pain, but the pulse is 75 and the patient is eating a Snickers, the extent of pain reported may be unreliable.) If the encounter results in a differential diagnosis, a plan is created and the patient is asked to affirm that he/she agrees with the plan—and that too is documented—the physician can later defend himself/herself.

Statistically, we can track what generates the most suits. The National Practitioner Data Bank gathers information on claims made and amounts paid. Diederich Healthcare3 crunches those numbers annually to help the insurance industry see where claims come from and how much is spent on med-mal restitution.

Moving to North Dakota is one way to lessen a physician’s chances of a lawsuit. Only $1.03 per capita was spent on med-mal claims in 2014. On the other extreme, avoid New York, where $36.15 per person was paid in settlement of suits and satisfaction of awards. Of course, the comparison is not entirely fair when there are far more physicians and specialists practicing in New York.

Although the likelihood of suit may vary by region, the types of suits help identify where pitfalls lie. Grouped broadly, one can identify misdiagnosis as the most frequent claim, followed by complications of surgery, claims arising from treatment modalities, obstetric claims and medication errors.3

Some recurring examples of claims may help you:

  • The twofer: A physician assumes he has correctly diagnosed the single problem, but a second, more seri-ous problem goes undiagnosed. Look again for what else might be wrong.
  • The wanderer: Patients are seen and discharged from multiple emergency rooms or clinics, told to follow up with a primary care provider when they don’t have one and eventually have advanced cancer or some other condition that in hindsight could have been worked up and caught sooner. Don’t let potentially serious conditions leave without a plan—even if it requires making the next appointment for the patient.
  • The “successful” surgery: Close monitoring for complications is a must. Severed ureters, nicked bowels, internal bleeding, retained sponges and nerve injuries can happen. Itemize common complications on the pre-surgery informed consent and let the patient know that “going back in” can routinely happen and it doesn’t mean an avoidable error was made.
  • The call that doesn’t sound too serious: Whether the call is from the nurse at the hospital or the family or patient from home after a procedure, it is hard to correctly address a condition or complication over the phone. The physician who “didn’t come” or who didn’t have the patient return, is often hard pressed to explain the decision.
  • The seemingly young at heart: Missed MI among younger patients (can have a normal EKG and atypical complaints) is a source of suits.
  • The possible lump: Mammograms, ultrasounds, biopsies. Pink ribbons have made awareness sky high and you are expected to diagnose it yesterday.
  • The lab result: Was it on a note on your desk for two months? You must have a system to remind you to look for the results of ordered studies. If you ordered it, the result must be important. Date and “initial” (however that is done in your chart) that you saw and reported the results to the patient and acted on it, if appropriate.
  • The excellent plan: You can devise one, but if the plan is not communicated to the patient, it doesn’t help. And if the plan is not followed, it doesn’t help. Write a letter if your patient hasn’t followed up with that specialist, gotten that prescription filled, appeared for the ordered test, etc. Shift the responsibility to the patient to follow the plan.
  • The incompetent: The demented, the mentally ill, or noncompliant patient can still remarkably find their way to a lawyer. Document instructions, have a witness in your office observe instruction and get permission to share protected health information with a family member if possible. Confirm instructions with correspondence to their home.
  • The birth injury: This requires a longer, more serious paper. But if you are delivering babies, you are expected to be a “strip” reader and prognosticator. Stay close by and check on the mom frequently.
  • Grab bag of common claims: Warfarin errors (too much and too little), falls (including the examination table dismount), decubitus ulcers (and failure to properly treat them), infiltrations, medication allergies, medication reconciliations, medication dosages, medical management of chronic illness (asthma, diabetes, heart failure, etc.). Be alert to common claims.
  • Physician in charge: A physician also can be sued for the conduct of others working with him or her. It is imperative to know state law regarding the extent of authority of physician extenders, nurse practitioners and physician assistants. Have clear written prescription policies, especially concerning narcotics, and require copies of prescriptions written by others to be avail-able for your review. Trusted nurses cannot practice for a physician. Review charts and document physician supervision of those assisting in the care of patients.
  • Coverage: We still see suits where the physician isn’t available when called, and the coverage plan is less than clear. Be sure to have clear coverage plans when you are away from the hospital or inaccessible by phone. Most physicians have others in their practice cover for them, but you may have to depend on your biggest competitor and vice versa. If you are a specialist, there is an expectation that a specialist of equal or greater training will act in your stead if you are away.
  • Specialists: When you know enough to know that you don’t know enough, refer. Medicine has become very specialized and if you are in doubt about what to do, don’t hesitate to send the patient on.

Document informed consent. Don’t just rely on the standard form, write in common complications and discuss the consent document with your patients. They are less likely to sue if they know this complication sometimes occurs and it was spelled out in writing.

Many claims started with favors—a prescription for a neighbor or friend, advice at a cocktail party, reciprocal work for other professionals. You may be lucky and only find kindness and favors in reciprocity. One reduces the chance of suit by staying within your field of expertise and seeing patients in a practice setting. Then it is clear that a patient-physician relationship is established. You don’t want to be responsible for the friend you wrote a prescription for without the benefit of a real history and physical.

Examinations of the opposite sex where clothes are re-moved or private parts palpated should be supervised; so should examinations of patients known to be mentally troubled. Request a family member to be present when examining the elderly who are confused or forgetful. Important instructions for the elderly should be in writing with a second copy kept in the chart.

Lastly, keep substantively current. How we used to do it, or how we used to treat it, may be malpractice. With tools like Up-To-Date and similar online resources, physicians have little excuse for less-than-current practices and dosage errors. Cases are best defended when an attorney can point to evidence-based studies that have led to recommended guidelines from a recognized physician group. Physicians who paint-by-numbers are less likely to be sued than the free-form abstractionists.

THE VERDICT—There is a degree of uncertainty in a jury trial. Although physicians win more than they lose, that might be because cases that likely would be lost by the defense get settled before the courthouse. Sometimes jurors have their own notion of justice and sometimes a judge has a strong inclination as to who is right and makes rulings accordingly. The system is not flawless. All things being equal, most physicians would prefer to avoid the experience altogether. Communicate, document, stay current and follow up.


1 Some, multiple times. Cleary, the nature of the practice impacts the risk of suit. Up to 20 percent of surgeons, but only about three percent of pediatricians or psychologists, are facing a suit at any point in time. Jene AB, Seabury S, Lakdawalla D, et al. Malpractice risk according to physician specialty. New England Journal of Medicine 365(7):629-36, Aug 18, 2011.

2 Trials typically last a week or more and as a party, you need to be present. Although less than 10 percent of cases are actually tried, a trial is not only stressful, but a major financial interruption of your practice.

3 www.diederichhealthcare.com

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