Avoiding Medical Malpractice in Clinical Practice

The medical profession is considered to be a noble one. The practice of medicine is capable of rendering noble service to humanity provided due care, sincerity, efficiency, and professional skill is observed by the doctors. However, today, the doctor/patient relationship has almost diminished its fiduciary character and has become more formal and structured. Doctors are no longer regarded as infallible and beyond questioning. Corporatization of health care has made it like any other business, and the medical profession is increasingly being guided by the profit motive rather than that of service. On the other hand, a well-publicized malpractice case can ruin the doctor’s career and practice. The law, like medicine, is an inexact science. One cannot predict with certainty an outcome of cases many a time. It depends on the particular facts and circumstances of the case, and also the personal notions of the judge concerned who is hearing the case. The axiom “you learn from your mistakes” is too little honored in healthcare. The best way to handle medico-legal issues is by preventing them, and this article tries to enumerate the preventive measures in safeguarding the doctor against a negligence suit.

Doctors frequently worry about getting sued for malpractice, and with good reason. Although the number of lawsuits has been declining in recent years, there were still more than 11,000 filed in 2019, according to data compiled by LeverageRX, an online lending and insurance broker for healthcare. Meanwhile, malpractice payouts rose nearly 3 percent compared to 2018 to about $4 billion. Up to 25% of physicians will be sued at least once in their career, with some surgical specialties having an even greater chance of being sued.

In spite of those daunting numbers, physicians needn’t think of malpractice suits as inevitable. Understanding the reasons for lawsuits can help doctors minimize the chances of being sued and improve the odds of a favorable outcome if they are.

A point worth remembering is that most malpractice suits are typically about more than money. Instead, lawsuits usually are the result of injured patients or their families wanting to find out what went wrong, who was responsible for it, and to see that it doesn’t happen to others.

Medical malpractice is typically defined by the failure the provide the degree of care another clinician in the same position with the same credentials would have performed that resulted in injury to the patient. As a physician, law school grad, and a medical malpractice consultant, I’ve learned that avoiding litigation is entirely plausible. While there are no absolute guarantees, being aware of certain reoccurring themes in malpractice law can be helpful.

In the context of malpractice litigation, winning means getting out as early as possible with no judgment of liability against you. Approximately 80% of cases that go to trial result in the physician ultimately prevailing. Even so, the physician still pays a huge price. Preparing for trial requires substantial time, money, and resources. This article addresses some of the topics surrounding medical malpractice, some common themes and the basics of avoiding being involved in a malpractice suit.

Elements of a Lawsuit

Physicians make mistakes. After all they are human. The law allows for this. A simple mistake or error in diagnosis or error during a procedure is not dispositive. In order, to successfully establish a medical malpractice lawsuit, the plaintiff (patient) needs to prove four elements to prevail: that the physician owes a duty to the patient, that he breached this duty, the breach was the cause of the patient’s harm, and damages.[1],[2],[3]

The first element of a negligence claim is “a duty of care was owed.” Duty to the patient asks the question – did the doctor have a responsibility for the care of this patient? Did the call to the cardiologist at 3 o’clock in the morning constitute his duty to treat the patient in the emergency department?  Duty can be established in a variety of ways such as proving the physicians were covering the patient for a colleague, responsible provider for medical care, or covering for a clinic where patients are treated.

Causation asks the question – did the act or omission cause the poor outcome? For instance, did the missed sepsis cause the patient’s death, or was the death caused by her concomitant myocardial infarction. This element of medical malpractice is established by proving the physician’s direct mistake lead to the adverse outcome

 Breach of duty asks whether the clinician was negligent in taking care of this patient.  This does not mean the clinician acted perfectly, but instead, the term concerns the “standard of care” for the community. Standard of care is defined in terms of what care a reasonable physician in the community with similar training and experience would provide for the patient?

Damages refer to the harm done to the patient as a result of the physician’s negligence. The question in a medical malpractice case is: does the alleged malpractice act rise to the level where money should be paid to the patient? Sometimes, a patient wants an apology from the doctor.

The Standard of Care

                  Just because a medical error has occurred doesn’t mean that error would be considered medical malpractice.  The “standard of care” determines whether an error or series of errors reaches that level.  “Standard of care” means the level of medical care that a person can reasonably expect from an average healthcare professional.  Doctors are not held to the standard of an excellent doctor, or even to the standard of a good doctor.   In other words, if a good or excellent doctor might have acted differently in a situation and prevented an injury to a patient but an average doctor might not have, the average doctor has not necessarily committed malpractice.  Physicians are required only to perform in accordance with what is expected of an average physician in that field.  It is important to note, though, that doctors who hold themselves out to be experts in a particular field are held to a higher standard than that of an ordinary physician.

Burden of proof

                  The burden of proof in medical malpractice cases is lower than in criminal cases, which require guilt beyond a reasonable doubt. Plaintiffs in malpractice cases must prove guilt based on a preponderance of the evidence. If there is more than a 50 percent chance that what the plaintiff did was wrong, then a jury should find the defendant guilty.

Avoiding Lawsuits

It is not difficult to avoid being sued. First, there is a dynamic that bodes against lawsuits in general. Malpractice suits are expensive. The upfront costs (i.e. cost for expert witness) are paid by the attorney – well before a settlement occurs. Then there are caps as imposed by a state law. Overall, the total costs incurred must be less that (35 to 40%) of the total dollars of recovery. The 35-40% is the attorney’s contingency. It must be sufficiently greater than his up-front costs, or he will not be paid for his hours spent on the case. Overall, this makes it difficult to bring a malpractice case – even when there is gross negligence.

Next, it is relatively easy for a physician to avoid being named in suit to begin with. There are several recurring themes in malpractice cases that doctors should be aware. These categories are patient care/diagnosis, referral, communication, documentation, physician skills, and protocols/guidelines.[4],[5]

Patient Care and Diagnosis

  1. Practice good medicine: Try to treat every patient as if you were treating a family member, even though this may be difficult with some patients. Be genuine and make demonstrate that you care. Often times, a patient will be willing to bring suit when they feel hurt due being marginalized.
  1. See your patient: A very common thread in medical malpractice cases begins with the physician ignoring his patient – not seeing him in the hospital for days. This often results in critical medical facts and occurrences being missed and subsequent harm resulting. Surprisingly, I’ve seen this play out on multiple occasions. If a patient has a problem, see and touch the patient. If a surgeon operates on a patient, he needs to see and lay hands on the patient if there is a problem. If a hospitalist is caring for a patient on the floor, and the patient has a problem, do not only talk to the nurse about the patient but also see and examine the patient. Many malpractice cases arise from the patient complaining of pain, fever, vomiting, dyspnea, diaphoresis, weakness, change in mental status, or bleeding, and the doctor does not see the patient for hours, if at all. Defending these physicians in court is difficult. It is easier to defend a physician who cares, empathizes, and interacts with their patients.[6]
  1. Respond quickly to a medical emergency and document these times: These simple acts, response time to the emergency, the time the clinician began to care for the patient, and recording vital signs often are not documented during an emergency.
  1. Know the community standards and follow them: Do not cut corners under any circumstance. If a test is required, get it. The cost of an expensive test is cheap compared to the financial and emotional costs of a lawsuit.
  1. If the patient fails to respond to therapy, look at the patient again and treat with another agent or refer the patient to a specialist: This is one of the most common threads seen in malpractice cases; if the therapy does not work, change it, or get some help.
  1. If you order a test, make sure you see the results and interpret them: Do not depend on nurses, mid-level providers, or medical assistants to interpret tests you order. Look at the results, including all imaging, even if the radiologist reads it. If there is a question, call the radiologist or consultant about the test. Never allow a test to be entered into a chart or electronic medical record without seeing it.
  1. Post-operative fever is almost never viral: Many lawsuits included a postoperative fever that was attributed to a virus until the patient died from abscess and sepsis caused by the operation. Always find the source of a fever.
  1. Always think about the worst-case scenario: What is the worst thing this patient could have? Anchoring bias or focusing on one diagnosis can lead to the wrong diagnosis. Keep an open mind and consider the worst possible thing the patient could have, and rule it out with exams, tests, or referrals.
  1. Team treatment of the patient needs a captain or someone who will gather all the data and be in charge of treating the patient: Multiple malpractice cases stem from no one directing the care of a complicated patient, particularly hospitalized patients. This is particularly a problem when a patient has subspecialty surgery and develops a medical problem after surgery.
  1. Never skip monitoring vital signs during procedures, particularly if the procedure takes place in the emergency department or on the hospital floor.

Referrals

  1. Involve consultants if needed: This is an easy way to avoid litigation. Doctors cannot know everything; hence, they should not be afraid to get help by consulting experts in another field. Document the discussions. There is a saying in the medical malpractice defense world, “the best doctors are the ones who call for help when they need it.”
  1. Explain to the consultant precisely what you want him to do for the patient and record the exchange.
  1. Often, it is worthwhile to get a fresh perspective on difficult cases: Let go of ego; it gets in the way of seeking outside advice.
  1. Midlevel providers are an integral part of medicine, but they work under a physician’s license. The physician is responsible for the care delivered by the MLP, and if a lawsuit is filed, the plaintiff will focus on the supervising physician, based on the legal doctrine respondeat superior.  

Communication

  1. Communicate well: A good place to start is to establish trusting and open relationships with patients. That, in turn, requires two things: good communication skills, and lots of face time with patients. Talk directly to not only your patients but also their families and other interested parties. Explain your thought process. Ask them if they have any questions. If this is done and documented, the physician often wins the lawsuit.
  1. Talk directly to consultants: Call them directly and discuss your concerns with the patient. Do not rely on the medical record or electronic medical record (EMR) to relay concern for the patient. Write in the chart that you had those discussions, and what was said. Many lawsuits arise from one excellent physician having no idea what the other consultants are doing on the case because they do not talk to each other. All the physicians involved get named in the lawsuit, and many cases can be avoided if the consultants had picked up the phone and talked to each other. This is a repeated theme in medical malpractice lawsuits.
  1. Weekends, holidays, and nights are a particularly treacherous time for physicians because of a lack of communication: Many lawsuits are filed because the physician covering the weekends, holidays, or overnight failed to communicate. Turnover and checkout should be thorough and complete.

Documentation

  1. The EMR is a ubiquitous form of documentation, and a practitioner should be well-educated about EMR. It has benefits and problems.
  1. Do your charts on time. This is critical. Plaintiff attorneys are asking for the timed history of when the chart was completed, and this is recorded on every EMR.
  1. Do not “cut and paste” in the electronic health record. This reveals to the jury that a clinician did not care enough to type personal impressions of the patient, or they get the impression that the doctor did not see the patient at all. Clinicians must document what they see, in detail. Detailed work helps tremendously if something bad happens to the patient.
  1. While costly, medical scribes help with efficiency, documentation, and productivity.
  1. Templates and macros are not good. If you use them, edit them 100% of the time to meet your specific encounter with the patient. If your macro or template contradicts a previous note or entry, the jury will think the doctor is lying. Plaintiff attorneys can uncover templates and macros.
  1. If you use a macro for the differential diagnosis of the patient, make sure you have ruled out or explained every disease listed in the macro or explain why you did not rule it out.
  1. Patient noncompliance with physician-recommended testing or treatment is an emerging problem. If the patient refuses a test, imaging, or treatment, document in detail that you discussed the potential consequences of noncompliance. Medication noncompliance is a particular issue.
  1. Pay attention to medication alerts in the EMR. There have seen multiple cases where a medication interaction/allergy alert has fired, and it was repeatedly ignored, resulting in a poor patient outcome.

Physician Skills/Continuing Medical Education (CME)

  1. Treat nurses and allied healthcare providers with respect. Many malpractice cases have been won or lost based on the statements of nurses and other providers. Support is vital.
  1. Keep up with medical education and skills in your field through CME or CEUs. Do not let board certification lapse. The first thing a plaintiff attorney asks about is schooling, training, and certification.
  1. Be extremely careful about providing medical care to friends and family members. You must have an established medical relationship with the patient.
  1. Never change a medical record after the fact, particularly after an adverse event with a patient. If a pertinent fact comes to mind, clearly state the time you remembered the fact and enter it into the chart as a “late entry.”

Protocols/Guidelines

Protocols and guidelines help because they are approved by large numbers of doctors from different fields. Explain when you chose not to use the protocol or guideline. It is fine to deviate from established protocols; however, always explain the medical reason for doing so.

Risk Management

Risk management strategiesare strategies that medical practitioners can adopt to minimize the likelihood of harm to their patients. By adhering to certain approaches, doctors can better manage malpractice risks and improve the quality of care they offer their patients. 

When it comes to running a medical practice, open and honest communication should be one’s fundamental approach. This is why it’s known as full disclosure. Patients tend to be more forgiving and understanding of mistakes when they feel their doctors truly care about them and have their best interests at heart. However, it’s also important to understand that an undesired result is not always synonymous with poor care or malpractice. On the other hand, poor communication combined with a bad outcome usually drive patients towards litigation. Therefore, the importance of effective communication between doctors and their patients cannot be stressed enough.

It is important to remember that an effective method for mitigating potential problems is to seek the consultation of a specialist. This is a simple but effective risk management strategy. Getting a second opinion is a matter of being as responsible as possible.

Conclusion

Even though malpractice lawsuits are trending downward, the stress of a lawsuit when one is filed is still as great as ever. Understanding common causes of lawsuits may help physicians reduce lawsuits by focusing attention on these critical areas. Communication that includes slightly longer consultations focused on patient education, more orienting statements, and even some humor, which allows patients to feel more comfortable, will also help to reduce family physician liability, as will careful documentation. Finally, we should always remember Primum non nocere: First, do no harm.


[1] Garon-Sayegh P. Analysis of medical malpractice claims to improve quality of care: Cautionary remarks. J Eval Clin Pract. 2019 Oct;25(5):744-750.

[2] Stanley IH, Simpson S, Wortzel HS, Joiner TE. Documenting suicide risk assessments and proportionate clinical actions to improve patient safety and mitigate legal risk. Behav Sci Law. 2019 May;37(3):304-312.

[3] Nayar R, Barkan GA, Benedict C, Booth C, Chhieng DC, Mody D, Siddiqui MT, Tabatabai LZ, Johnson R. Laboratory management curriculum for cytopathology subspecialty training. J Am Soc Cytopathol. 2018 Mar – Apr;7(2):61-78.

[4] Bordonaba-Leiva S, Gómez-Durán EL, Balibrea JM, Benet-Travé J, Martin-Fumadó C, Bescos Atin C, Mareque-Bueno J, Arimany-Manso J. Twenty four years of oral and maxillofacial surgery malpractice claims in Spain: patient safety lessons to learn. Oral Maxillofac Surg. 2019 Jun;23(2):187-192.

[5] Bielen S, Grajzl P, Marneffe W. The resolution process and the timing of settlement of medical malpractice claims. Health Econ Policy Law. 2020 Oct;15(4):509-529.

[6] Jena AB, Seabury S, Lakdawalla D, Chandra A. Malpractice risk according to physician specialty. N Engl J Med. 2011;365:629–636.

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