PHM 2025 Session Recap
One of the most terrifying and potentially career-altering experiences in medicine is being named in a malpractice lawsuit. Although many deep-seated emotions exist in this vulnerable moment, ‘fear of the unknown’ is certainly one contributing factor. While we cannot control many aspects of a malpractice case, we can improve our general legal knowledge to feel more prepared. In this PHM session, Jack Percelay, MD, MPH, FAAP, and Hilliary Powell, JD, provided an excellent explanation of the legal process, including basic definitions, steps to take if you are faced with a lawsuit, and high-risk decision points in hospital medicine.
The talk began with some basic definitions. Considered a civil lawsuit (not a criminal matter), medical malpractice is a type of “professional negligence.” In a malpractice case, it is the duty of the plaintiff’s attorney, who represents the patient, to prove that the physician, who is the defendant, did not meet the standard of care. Said another way, would another physician in the same specialty, under similar circumstances, make the same decision? Next, the plaintiff’s attorney must prove that the breach in the standard of care resulted in injury to the patient. Finally, the plaintiff’s attorney must prove that due to the injury, the patient suffered economic or non-economic (i.e., pain and suffering) damages.
Dr. Percelay and Ms. Powell next discussed steps to take if you are notified of a malpractice case. The first step of a malpractice suit is for the plaintiff’s attorney to send a ‘notice of intent’ to the hospital, which explains the allegations and plan for legal action. This is referred to as being served. Generally, the hospital’s risk management team accepts this notice on your behalf and informs you of the case. It is important to notify your malpractice insurance carrier of the suit as well. This may be through risk management if the hospital provides your coverage, or by directly notifying your professional liability (malpractice) insurance company if you are privately insured. This step connects you with your legal team and is time-critical to ensure your legal team has adequate time to meet strict deadlines. Next, the insurance company officially provides you with an attorney to guide you through the process.
Malpractice cases can be long and arduous, with multiple stages and several potential outcomes. One possible outcome is a settlement, where both sides acknowledge the physician was at fault and assign a compensation package to the plaintiff. If this occurs, remember the defense attorney works for the insurance company, not the physician. This is an important distinction as physicians will be required to report the settlement to future medical licensing boards. If the case does not settle, another possibility is a trial. If your case goes to trial, be present for the duration of the case. The members of the jury will be more receptive to your perspective if they see you physically present throughout the case.
In medicine, an ounce of prevention is worth a pound of cure. One key factor that can help or hinder a lawsuit is documentation. In a lawsuit, if you did not document it, it did not happen. Conversely, if you documented it, it is quite difficult to contradict that claim later. With the creation of electronic medical records and the use of templated and ‘copy-forwarded’ notes, errors in documentation have multiplied. To ensure our documentation protects us in the future, the speakers recommend being thorough but brief, removing incorrect and unnecessary information for improved accuracy and simplification. Beyond the importance of accurately representing your clinical care and decision making, your documentation also serves to spark your recollection of the details of the case, as lawsuits can arise years after a patient encounter. Documentation does not have to be immediate, but should occur reasonably close to the time of your medical decision making to improve reliability. If you later recognize that you must alter a note, label it clearly as an addendum or a late entry to display transparency surrounding your documentation. All versions of notes are available during legal proceedings, so when inconsistencies arise in documentation, the plaintiff can allege the physician was attempting to change the narrative or cover up a mistake, which increases the appearance of guilt.
The speakers then discussed several common daily decision points for hospitalists that are higher risk and therefore prone to lawsuits. These include: failure to consult or refer when another reasonable physician would, failure to transfer at the appropriate time, failure to follow up on labs (or ensure pending labs at discharge have a follow-up plan arranged), failure to complete medication reconciliation, inaccurate or incomplete recommendations to outpatient physicians in discharge summaries or referrals, failure to document thought process, and late entries into the medial record. Many of these items can be traced back to thoughtful medical decision making, resource utilization, and communication. With those themes in mind, it is important to remember that hospital medicine is a large network, and knowing who to turn to for backup, support, and help with any given case (medical or legal) is an invaluable skill.
The session aptly ended with the concept that “you do not need to be brilliant, just be a good doctor.” You do not need to be the world’s greatest diagnostician (Dr. House anyone?) to avoid legal judgment against you. The requirement is that you are a reasonable physician and did what others would have done under similar circumstances. When errors and malpractice cases happen, understanding the process can remove some ‘fear of the unknown’ and allow a physician to approach the process with a clearer mind. The risks and tips discussed by Dr. Percelay and Ms. Powell should promote ongoing discussion amongst and between hospital medicine divisions to create a culture that normalizes humble inquiry throughout our daily workflow. By asking peers to share their expertise and collaborate on medical cases, we ultimately provide superior patient care while also protecting ourselves from medical errors. Reassuringly, when cases go to trial, most often the physician and hospital will not be found negligent.
Key Takeaways
- Knowledge is power: understand what happens in a basic legal malpractice case
- Keep documentation complete, clear, and concise.
- We are only human. Create a culture of safety and encourage humble inquiry in our daily workflow
Dr. Skoczylas
Dr Skoczylas is a pediatric hospitalist, clinical assistant professor, and medical director of the Well Newborn Nursery at the University of Michigan C.S. Mott Children’s Hospital, Ann Arbor.
Dr. Salada
Dr. Salada is a pediatric hospitalist and clinical assistant professor at the University of Michigan C.S. Mott Children’s Hospital, Ann Arbor.