Before a catastrophic knee injury, Eliot Menkowitz’ patient was a record-holding weightlifter who could squat 720 pounds.
After surgery, the best he could do on a rehabbed knee was maybe 700, recalls Menkowitz, an orthopedic surgeon in suburban Philadelphia.
The patient was irate, angry that Menkowitz had ruined his life and career as a squatting champ. Menkowitz’s reaction to the outcome? Write it up in a journal as a resounding success.
“Patients’ expectations sometimes are not in line with reality,” says Menkowitz, founder of Doctors Advocate, a company aimed to help protect healthcare professionals from frivolous lawsuits.
Those unreasonable expectations are often why some patients file malpractice lawsuits, Menkowitz adds, which is why he makes sure to have frank discussions with his patients about their expectations of the outcome. The chances of his knee-replacement patients continuing on to run the 100-yard dash or ski in a downhill race are slim, he says.
Luckily, the squatter didn’t sue, but in his line of work, Menkowitz is no stranger to litigation. In fact, for physicians trying to avoid a malpractice suit, Menkowitz advises: “Quit medicine.”
Indeed, a malpractice suit can drag on for years, cost you time out of the office, and take a toll on you and your family. But while it may seem futile, there are ways to protect yourself from the hungry malpractice attorneys and sleepless nights that come with a lawsuit — that don’t require you to hang up your white coat.
Communication is key
Managing a patient’s expectations is a critical piece of shielding yourself from a lawsuit. Indeed, it’s “absolutely fundamental to the whole process” of patient relations and risk management, says Kenneth Hertz, a principal with the Medical Group Management Association Health Care Consulting Group.
Sounds simple enough. But it’s not. “Expectations can differ from patient to patient,” says Tom Cox, president and managing member of Bluewater Solutions LLC, a risk and insurance management firm in Richmond, Va. A Miss America contestant, for example, might be more troubled than another patient by the skin discoloration side effect from an iodine shot, he says. You have to take the individual into account when discussing potential outcomes.
The “no surprises” adage applies here, Cox says, so you have to make sure you have properly communicated everything to the patient and his family.
Sometimes, this might mean stretching a conversation over a few visits. Medical information can be complicated and at times hard to hear. It might take some patients longer to grasp what’s happening.
“When people get stressful information, they hear nothing. They hear the first sentence that comes out and their mind goes blank,” says Jeffrey Segal, a neurosurgeon and CEO of Medical Justice Services, Inc. based in Greensboro, N.C. “It requires messaging over and over again.”
Segal recommends you give the patient information in advance, if possible, such as well before a procedure. Go over it a few times, and the patient is more likely to get the message.
“You’re seen as someone making a Boy Scout effort to impart positive information, and the message will be received, the content will be received,” he says. “And I think the gesture will be appreciated. Both of those are important.”
Rodney Adams, leader of the Tort Defense Group, at Richmond, Va.-based law firm LeClairRyan, suggests you provide handouts and pamphlets to the patient and family before they leave your office. The written materials can support the message you’ve tried to convey, and they will be there when the patient is ready to process the information.
Of course, the communication doesn’t end after the office visit. The follow-up can be just as important — if not more. Here’s a common scenario: A patient receives a lab test or blood work, the physician reviews it, and the results go into her chart. When the patient doesn’t hear back from the office, she assumes the results are normal. That’s usually fine if, in fact, the result is normal. But, Segal notes, “You should proactively communicate not only abnormal, but also the normal.”