Medicolegal Issues

How to Stay Out of Litigation


 

We’ve defended physicians involved in lawsuits for more than a decade. After representing dozens of physicians, nurses, and other healthcare professionals, we can say one thing for certain: No one likes to get sued.

Good physicians struggle with the litigation process. Even when their care has been absolutely appropriate, many doctors experience great anxiety when they are accused of having negligently injured a patient. Because they have trained so hard to gain their expertise, many of our clients have found that a lawsuit strikes at them personally as well as professionally. At the end of the day, lawsuits cause stress, take physicians away from their personal lives, and often lead to serious financial and professional consequences.

Therefore, one of the questions that we most often receive is, “How can a physician avoid lawsuits?”

Top 10 Ways to Stay Out of Litigation

1) Good documentation: Often, in a lawsuit, plaintiffs’ attorneys will tell the jury the old adage, “If it’s not in the record, it didn’t happen.” What everyone who has practiced medicine knows, however, is that many things don’t make it to the chart. Physicians don’t have the time to recount their conversations with patients verbatim. What we want to see in the chart are the following:

  1. A description of the information provided by the patient that factored into your diagnoses or treatment decisions;
  2. A description of the physical findings or laboratory results that factored into your diagnoses and treatment decisions;
  3. A discussion of why you made a particular decision;
  4. A discussion of the course of treatment you selected; and
  5. A discussion of your anticipated follow-up.

Of these elements, we most often fail to see a discussion of why you made a particular decision, and this is a crucial piece of the record. As you know, physicians often have a broad range of treatment choices. Including information about why you selected a particular course of treatment—in light of the available data—makes the record more understandable to the jury. A good chart lays out more than just the physician’s actions. A good chart is so complete that another physician could assume care for the patient tomorrow, easily understanding both the course of treatment and why you chose it.

In situations in which patients leave the physician’s office believing that the physician listened carefully to their complaints, spent the time to explain the course of treatment, and genuinely cared about them as people, we don’t see as many lawsuits.

2) Good communication: In his book Blink, Malcolm Gladwell describes something defense lawyers have known for many years: That the quality of the care does not determine whether or not a physician gets sued. There are many instances in which a physician who makes a mistake that causes an injury manages to avoid litigation. There are also many instances in which a physician’s care is appropriate, but the patient sues the physician after a recognized complication. What makes the difference?

More often than not, the determining factor in whether or not a physician is sued is the patient’s perception of whether or not the physician cared about her. In situations in which patients leave the physician’s office believing that the physician listened carefully to their complaints, spent the time to explain the course of treatment, and genuinely cared about them as people, we don’t see as many lawsuits. If a physician explains why a complication occurred—not just that it occurred—and appears empathetic to the patient, she has less of a motivation to sue. Conversely, if the patient feels like the physician sees her as a commodity or didn’t take the time to understand her complaints, the risk of litigation goes up.

One of the most important aspects of good communication is adequate informed consent. Remember, informed consent is a dialogue—not a lecture. It requires physicians to discuss:

  1. The substantial risks of the treatment;
  2. The benefits of the treatment; and
  3. The alternatives to the treatment. Sometimes it’s difficult to determine the substantial risks because a patient and a physician may view the magnitude of a particular risk differently. Our rule of thumb is that any risks associated with serious long-term sequelae, such as permanent impairment, must be discussed, even if the probability of the risk occurring is remote.

3) Good consultation: Many hospitalists do not have long-term relationships with their patients. After a course of hospital treatment, the patient will return to her regular physician. A common breakdown occurs when the consultation between the hospitalist and the regular physician is inadequate.

On the front end, the hospitalist who receives a patient should take the opportunity, if possible, to consult with the regular physician about any ongoing course of treatment. Unfortunately, patients are not always accurate medical historians and may not fully appreciate their conditions or courses of treatment. Consulting with the regular physician helps to eliminate the possibility that an important aspect of the patient’s history or condition is overlooked.

On the back end, when the regular physician resumes care of the patient, he should be able to reinforce the course of hospital care and provide an additional layer of education about why the hospitalist made certain treatment decisions. Of course, the regular physician can serve in this role only if the hospitalist has taken the opportunity to inform the regular physician about the course of care.

4) Accurate representations: We are seeing more cases in which physicians are being sued for alleged misrepresentations to patients.

For example, each of you has probably seen an ad in which a Lasik provider advertises that the procedure is “20/20 or it’s free.” A patient may be able to allege that this advertisement is a guarantee that the procedure will result in 20/20 vision, but no medical provider should guarantee a successful outcome. Each human body reacts differently to treatment, and there is no physician who has not seen an unexpected outcome. Providing patients with unrealistic expectations about their outcomes can lead to lawsuits, even if a physician has obtained a signed informed consent detailing the risks involved.

The situation is even worse when the physician misrepresents his experience. We have defended cases in which physicians have told patients that they had performed a procedure hundreds of times, when that representation was not accurate. One of the greatest assets available to physicians in litigation is their advanced training and professional experience, but that asset becomes worthless if a physician gives the jury a reason to doubt his credibility. Once the jury believes that a physician has misrepresented his experience, he loses the ability to credibly explain his treatment decisions.

5) HMO-directed medicine: It’s no secret that many patients are dissatisfied with their managed care plans. In the abstract, patients understand that rising healthcare costs have caused insurers to limit care, but they are unwilling to view their own situations objectively. They believe that they are entitled to unlimited medical resources. When the HMO tells patients “no,” they have a tendency to transfer their frustrations to their physicians.

The coverage provided by the HMO is a contractual matter between the patient and the insurer. At the end of the day, the treating physician does not control the patient’s eligibility for certain types of care. What the treating physician cannot overlook, however, is that the physician-patient relationship is a personal one that exists independently of the insurance relationship. The standards of professional care require a physician to inform patients of all treatment options—even if the physician believes that the HMO is unlikely to authorize some of them. Ultimately, even if the cost of a treatment option would be prohibitive, a physician must remember that the patient has a right to be informed and to make her own decisions. Physicians should also be receptive to advocating on a patient’s behalf about the reasonableness or necessity of care.

6) Attend to the patient: Few things are harder to explain to a jury than a physician’s failure to personally attend to a patient. The reality is that physicians may receive information over the telephone or through an intermediary’s relay, and they often have to use these means of communication. The risk is that a physician will miss a detail that he would have seen if he had personally examined the patient.

Err on the side of caution. If your differential diagnosis includes a potentially serious condition and your ability to rule out that condition might be influenced by physical findings, arrange to see the patient in person. If the situation does not allow for a face-to-face appointment, instruct the patient to seek medical care through an emergency department or another provider.

Having been there, we can say that there is nothing more difficult for a physician than to have to admit, at deposition, “I wish I had seen the patient personally.”

7) Adequate discharge instructions: Another reality of modern medical practice is that patients often leave the hospital before their course of healing is complete. Patients may leave the hospital shortly after surgery or while still affected by an illness. Even when the treatment in the hospital has been appropriate, we regularly see cases arising from the physician’s discharge instructions. Patients allege that they did not receive enough information to allow them to recognize the onset of potentially serious complications. To prevent confusion, discharge instructions should address all areas of potential concern, including pain, wound care, and signs of infection. The instructions should also include information regarding whom to contact if questions arise and should instruct the patient to return if she experiences a change in condition.

8) Be prepared to deal with misinformation: Technology is wonderful. This morning, we typed the term “diabetes mellitus” into the Google search engine. It returned more than 7.3 million references. Within 30 seconds, we located the “final cure for diabetes,” which was compounded from banana, bitter melon, licorice extract, and cayenne pepper (among other things). While this might cure diabetes, we have our doubts; however, we will leave the debate to more scientific minds.

The problem is that sick people often become desperate people—particularly when fighting diseases like cancer, AIDS, and Alzheimer’s. They are likely to be vulnerable to misinformation and might be inclined to pursue courses of action that could actually harm them. Physicians must realize that they will regularly deal with patients who have unrealistic expectations of the medical system. The only way physicians can combat misinformation is by providing better information. Physicians need to be prepared to educate patients who have unsuccessfully tried to educate themselves. Part of that education can be verbal, but physicians should consider directing patients to reliable resources that they can explore after leaving the hospital.

Patients are also bombarded by advertisements for prescription medications, all of which are designed to persuade them to take an active role in requesting particular prescriptions. The problem is that the physician is responsible for selecting an appropriate medication. Physicians have to be able to explain why an advertised medication may not be the best choice under the circumstances, no matter what the TV commercial said.

9) Take responsibility: Everyone makes mistakes. No physician is perfect, nor is it fair to expect perfection from those who deal with the intricate machinery of the human body. A culture of fear, however, has caused many physicians to believe that they should not admit their mistakes. Our experience shows that recognizing and responding to mistakes is a far better course of action than trying to pretend they didn’t exist.

Taking responsibility doesn’t mean admitting that you were negligent. It does mean acknowledging a complication when it occurs and assisting the patient in minimizing the consequences. Sometimes this will result in transferring the patient to another physician. At other times, the physician may have to pay to correct the mistake. Many medical malpractice insurance carriers now have programs targeted at promptly recognizing and reacting to unexpected outcomes. These insurers realize that the best time to correct a bad situation is within hours or days of its occurrence. Enlist the help of your insurer or hospital risk manager. If patients feel like their physicians are trying to minimize a situation, hoping mistakenly that it will go away, it becomes much more difficult to avoid litigation.

10) Don’t compromise your integrity: Physicians are professionals. Whether it’s fair or not, jurors hold physicians to a higher standard of conduct. They expect more of doctors. They expect doctors to “do the right thing.” Consequently, jurors tend to punish physicians who place their personal interests above their patients’ interests. Federal law already prohibits physicians from engaging in many forms of self-dealing, such as investing in certain businesses or receiving kickbacks for medical care. But there are many lawful forms of conduct that might cause a jury to question why a physician chose a particular course of action.

Recent medical literature demonstrates that pharmaceutical manufacturers direct 90% of an estimated $21 billion annual marketing budget at physicians, including the sponsorship of an estimated 300,000 annual education events. This amounts to approximately $13,000 per physician annually. Because of concerns that even small inducements might have an unwanted effect upon physician independence, the Stanford Medical Center recently announced a new policy prohibiting physicians from accepting free drug samples or even small gifts from pharmaceutical sales representatives. Prominent newspapers have been running stories about the “free lunches” physicians receive.

We’re not suggesting that physicians spurn pharmaceutical sales representatives or that they avoid legal business opportunities. We caution you, however, that smart plaintiffs’ attorneys are sensitive to any indications that a physician has allowed his interests to influence a patient’s treatment. Don’t put yourself in a position where a jury could reasonably question whether or not you had your patient’s best interests in mind.

Unfortunately, even if a physician observes all of these precautions, a patient still might file a lawsuit. If you sense a real potential for litigation, contact your insurance company and provide notice of a potential claim. This will help ensure that your insurance coverage is available if a lawsuit is filed. It also allows the insurance company to retain an attorney to assist you. The next time we write, we’ll provide our top tips for winning a lawsuit once it occurs. TH

Patrick O’Rourke is the managing associate university counsel for the University of Colorado’s litigation office. Kari M. Hershey, JD, practices health law in Colorado.

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