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• Filed under: Ask Dr. Hospitalist, Columns, News

• Keywords: liability, legal advice, risk manager

Prepare to react to a medical malpractice lawsuit

From: The Hospitalist, February 2009

Prepare to react to a medical malpractice lawsuit

One of my colleagues is being sued for medical malpractice. After he was notified of the lawsuit, his lawyer immediately advised him of some things he should and should not do. Can you help me understand what those might be?

J. Boggs, Fort Smith, Ark.

Dr. Hospitalist responds: Lawsuits alleging medical malpractice are common—probably more common than most of us realize. Most physicians either know someone who has been sued or is currently being sued for medical malpractice. Unfortunately, malpractice is not something most medical schools or postgraduate training programs address sufficiently as part of a curriculum.

To be clear, I am not an attorney. I advise you to speak with an attorney familiar with medical malpractice statutes in your state regarding any legal action. But in my discussions with medical malpractice lawyers and with physicians who have been sued, I have come to understand the process can be an emotional and lengthy experience for everyone involved.

Attorneys often advise medical malpractice defendants of several things:

• Immediately contact your risk manager. If you do not know who your risk manager is or do not have one, contact your medical malpractice carrier. Your risk manager will open a file and notify your medical malpractice carrier. They will ask an attorney to contact you. This attorney will advise you of the most appropriate steps to take.
• It is normal to feel a wide range of emotions when you learn you are being sued. You might be very angry with the plaintiff (the party filing the suit), especially if you believe you provided appropriate care. At times like this, many physicians want to vent and speak with friends, family, colleagues, or even the plaintiff. That leads to a second piece of advice: Don’t speak with ANYONE except your attorney about the case. This might be difficult and seem counterintuitive, but you can harm your case if you talk to others about it. As the lawsuit evolves, both parties will undergo a discovery process to learn everyone’s perspectives. Defendants likely will be asked to provide answers at a deposition. Plaintiff’s counsel will ask defendants whether they spoke with anyone about the case. If they learn defendants spoke with others about the case, they may depose those individuals to learn what was discussed in those private conversations with the defendants. As you can imagine, it can get messy when private conversations are revealed in depositions.
• The last piece of advice attorneys often given new clients: Never alter the record. This seems crazy, right? What intelligent doctor would actually go back and alter the record? Well, silly as it might sound, many providers do go back and change something in the record. Most of the time, the change was something the physician thought was innocuous, such as adding a date to a note. By the time a physician has been sued, the medical record in question probably has been copied, likely more than once. It’s fairly simple to recognize when the original record has been altered. But regardless of how innocent any change may seem, the perception is the alteration was meant to deceive. Jurors normally do not view such instances favorably. Defendants can only hurt themselves when they alter the record.

So, if you are ever a defendant in a case, contact your risk manager immediately, don’t talk to anyone about the case, and stay away from the medical records office.

Take extra precautions to prevent C. difficile infections

I work at a hospital where the infection control officer advocates universal use of alcohol-based hand gels to prevent transmission of infectious pathogens. I previously had been told alcohol-based gels might be insufficient to kill C. difficile. Is this true?

C. Nelson, Atlanta

Dr. Hospitalist responds: You bring up an important question. The role of hand hygiene as a measure to control hospital-acquired infections has become increasingly visible. This is long overdue. The thought of healthcare providers transmitting diseases because they didn’t clean their hands is abhorrent.

Many institutions around the country have adopted policies similar to your hospital’s, encouraging the use of alcohol-based hand gels over the use of soap and water. Hospitals have done this for several reasons:

• Healthcare providers are more likely to use alcohol-based gels than cleanse with soap and water;
• Rubbing your hands with gel takes less time than washing with soap and water;
• Hospitals can place gel dispensers in convenient locations outside each doorway, whereas there are only so many faucets and sinks on any given floor; and
• Even those who do wash their hands with soap and water often do not spend enough time adequately cleaning them.

Alcohol-based gels are effective against a wide range of bacteria that cause hospital-acquired infections, particularly against Staph, including MRSA. But C. difficile may be different. The control of C. difficile in hospitals is difficult because the organism can produce highly resistant spores, which can survive for long periods of time in a hospital environment, such as in mattresses, equipment, furniture, etc. Alcohol-based gels might be less effective against C. difficile spores than other organisms that cause healthcare-associated infections. Providers caring for patients with C. difficile should wear protective clothing, such as gloves and gowns, as well as clean their hands with soap and water.

For additional information on this subject, I suggest you check out Morbidity and Mortality Weekly Report’s “Guideline for Hand Hygiene in Health-Care Settings” (Oct. 25, 2002). You can access it online at the Infectious Disease Society of America’s Web site at www.idsociety.org/ content.aspx?id=4434#hh. TH