Here's some good—but often forgotten—news about "the malpractice crisis": Most patients who suffer an injury as a result of
medical negligence don't end up suing their doctors. Those who do, however, are often motivated not by the negligence itself,
but by nonclinical factors like a lousy bedside manner or poor communication. These are the kinds of mistakes that are well
within your power to fix.
We interviewed malpractice attorneys—those who work for plaintiffs as well as for doctors—and risk management consultants
to come up with the following list of 10 dumb things doctors frequently do that are likely to get them sued.
1 Don't worry about keeping detailed records. The medical record is your best defense against a malpractice suit—if it's accurate. If it's not, the plaintiff's attorney
will smell blood, and use the error to damage your credibility with jurors. Plaintiffs' attorney Jeffrey P. Allen, from Wellesley,
MA, urges doctors to follow this rule: "Write your charts as though they'll be read by malpractice lawyers, not just your
medical colleagues."
David Karp, a risk management consultant in Cloverdale CA, thinks that's a bit much, but he still urges attention to detail:
"I tell doctors to provide enough detail in the chart so that a colleague could safely take over the patient's treatment,
or so that a medical expert could use it to testify in your defense."
When recommending a certain treatment or medication, explain your reasoning to the patient, then document those reasons—and
the fact that you explained them. Even if your decision ultimately proves wrong, and the patient suffers an injury, those
chart notes will help. In malpractice litigation, you don't have to be perfect, or even right. You just have to show that
your actions were reasonable for a doctor in your specialty.
The record must be complete, unambiguous, and legible. If you say you told the patient to come back in three months for a
follow-up visit, but didn't note that instruction in the chart, the jury may not believe you ever said it. That's why defense
attorneys warn their clients, "If it's not in the chart, it didn't happen."
2 Don't take the time to document informed consent discussions. Having the patient sign a consent form is advisable, but it's not an acceptable substitute for a detailed informed consent
discussion. That discussion should be recorded in the chart. If the patient doesn't accept your treatment preference, document
that also, including the reasons why you disagree with his choice.
The standard for informed consent used to be what the average doctor thought his patient should know. But increasingly, courts are basing their decisions on what a reasonable patient would want to know. That doesn't mean explaining every conceivable treatment option, but at least the reasonable ones. "Every patient
has the right to decide what's going to be done to his body," says David Karp.
3 "Fix" records quickly when something goes wrong. Altering records after a patient is injured is an easy way to lose a malpractice case. No matter how pure your intentions,
any corrections you make to "help" your defense will be portrayed by the plaintiff's attorney—and interpreted by the jury—as
an attempt to cover up what really happened. Such record-tampering could also mean you'll be paying for the cost of the defense
yourself, since many policies specifically exclude coverage when a physician has altered his records.
It's okay to review your records to check for mistakes or omissions—as long as you do it properly. Don't erase, Wite-Out,
or scribble over the mistaken entry. Instead, draw a single line through it, leaving it legible, and add your initials and
the date. Then write the new note, explaining why the original one was incorrect, and initial and date that also.
4 Trust the patient to follow through on referrals. While it's the patient's responsibility to comply with referrals to specialists, jurors may figure that you should have followed
up to make sure the patient actually did.
Your office staff should have a strict protocol for keeping track of referrals: They should make sure the patient keeps the
appointment; confirm receipt of the specialist's report; call his office if you don't receive it; make sure you see the report
before filing it in the chart; and arrange a follow-up appointment if necessary. If a patient fails to keep a referral appointment,
your staff should telephone her and follow up with a certified letter. Those steps should be documented in the chart.
5 Don't bother to track test results. Unreported test results are a frequent cause of delayed diagnosis claims. Labs and radiologists sometimes fail to send test
results, or when they do, the report may slip through the cracks at your office. To avoid such errors, create a mechanism
for tracking tests you've ordered, making sure you actually receive the results from labs or radiologists, and that patients
are promptly notified of the results—after you've reviewed them.
If your office mails test results to patients, the message should include the nature of the test, the date it was performed,
the test results, what they mean, and any required follow-up. If your staff reports test results by phone, make sure they
follow up if they don't reach the patient on the first call.
To comply with the HIPAA privacy rule, test results should not be left on the patient's answering machine, or with a family
member. Instead, your staff should leave a message asking the patient to call back for the results. If the patient has specifically
authorized you to leave a message, it's okay to do so, but you should get the authorization in writing and keep it in the
chart.
Some doctors tell patients, "If you don't hear from us, you can assume your tests are normal." That's a risky policy, however.
Patients should be informed of all test results, whether normal or abnormal. (To reduce communication error, many physicians no longer use the terms "negative"
and "positive" with patients.)
If test results are abnormal, says Lee Johnson, a healthcare attorney in Mt. Kisco, NY, you should report them to the patient
yourself, especially if they suggest a serious condition. Only a physician can properly answer the questions the patient is
likely to ask about the significance of the results, the long-range prognosis, and any required follow-up or referrals.
6 Don't check the chart when ordering medication. Each patient's chart should have a summary sheet or bright sticky labels in the front that highlight any allergies or adverse
reactions to medications. Doctors and nurses should double-check the chart for those warnings before ordering meds.
Letting staff members order refills is risky unless they check with you and/or the record first. In one office, an assistant
phoned in a refill for blood pressure medication without looking at the patient's chart. If she had, she would have seen the
doctor's note: "Needs workup when BP meds used up. No more refills." When the patient died of a stroke, the family sued the
doctor and won a big settlement.
7 Diagnose over the phone. Diagnosing medical conditions without examining the patient is risky. You can't assess appearance, body language, or symptom
severity—all of which you'd normally consider during an office exam. Besides, some patients may be unreliable or inaccurate
when describing their symptoms. In the case of an impending heart attack or stroke, such errors could have fatal consequences.
Be careful prescribing medication over the phone, too. If you do, tell the patient to call back after a specified time if
his condition doesn't improve. Document those calls, including his description of his symptoms, and the advice or medication
you gave. Don't prescribe by phone for new complaints. If your diagnosis is wrong, the medicine could be ineffective or even
harmful.
If you allow nurses or PAs to provide medical advice by phone, prepare written protocols including what questions to ask,
appropriate responses for minor problems, and which calls warrant an office visit. Patients reporting potentially critical
symptoms such as chest pain, head injuries, or high fever should be transferred immediately to you, scheduled for an immediate
visit, or sent to the ED. If in doubt, be sure to err on the side of caution.
8 Don't care whether patients like you. Research on why patients sue doctors reveals that basic interpersonal skills such as listening and showing respect can be
just as important as clinical skills in preventing lawsuits. According to Alice Burkin, a plaintiffs' attorney in Boston,
"The most important factor in many cases, besides the injury itself, is the quality of the patient's relationship with the
doctor. I've never had a client come in and say, 'I really like this doctor, and I feel terrible about doing it, but I want
to sue him.' People just don't sue doctors they really like."
"The best way to avoid getting sued," says Burkin, "is to establish good relationships with your patients, and to treat them
with respect. That requires taking time to talk with them, and more important, to listen." Doctors who don't are asking for
trouble.
9 Assume each patient needs just a few minutes. Under pressure from managed care, many doctors feel compelled to see more patients each day. Patients get crammed into five-minute
slots, making some feel rushed and neglected. If something goes wrong, they'll sue, claiming you didn't take enough time to
pay attention to their symptoms. The plaintiff's attorney can then subpoena a copy of your daily appointment log. If it shows
that you spent only five minutes with each patient, that fact will be cited as a contributing factor in your alleged negligence.
Scheduling every patient for the same brief visit is both inefficient and bad medical practice. The physician's staff should
ask callers a series of standard questions about the nature, onset, duration, and severity of their problems, then schedule
appropriate appointment times.
10 Don't say anything if something goes wrong. "A lot of people come to us because they just want to find out why something went wrong," says plaintiffs' attorney Jeffrey
Allen. "They'll say, 'I asked the doctor, but he didn't explain anything.' "
To prevent potential litigation, your office should have a clear policy on dealing with patients who suffer adverse medical
events. The doctor who treated the patient—not a staff person—should explain the rationale for his diagnosis and treatment,
why complications may have occurred, and how he'll manage them.
If the complaint involves a significant injury, invite the patient and her family to a conference at your office, and listen
carefully to their concerns. Be prepared to review the record with them in detail. In such situations, it's appropriate to
express your sympathy without accepting the blame, or blaming other physicians. Explain that unexpected complications and
poor results can occur without anyone being negligent.
What if you did make a serious error? Doctors often fear that admitting such a mistake will encourage a patient to file a
malpractice suit. But clamming up—particularly if the patient has suffered an injury—isn't smart. If that patient can't get
an honest answer from you, he's more likely to look for a lawyer. Legally and ethically, honesty is the best policy.
"Patients will often forgive honest mistakes when they're disclosed promptly, fully, and compassionately," says Grena Porto,
a risk management specialist with QRS Healthcare Consulting in Hockessin, DE. "But they become enraged when they think they're
being stonewalled. Even with serious errors, when a lawsuit may be inevitable, disclosure and apology is still the best course
of action. It can mitigate the patient's anger, and if the case does go to trial, it demonstrates that you had the patient's
best interests at heart."
An appropriate apology doesn't mean admitting liability. (Before making an apology, check with your malpractice insurer.)
Even if you're careful, some patients will interpret any attempt at apology as an admission of guilt. So avoid using words
like "mistake," "error," or "accident." Instead, you might say, "I'm sorry things turned out this way."
