Medical Malpractice and Asset Protection Part 4: Thinking defensively about medical malpractice

In part one of this series we examined issues including which states and specialties are highest paying and highest risk for doctors and where malpractice insurance premiums are trending. In part two we looked at the effects of gender and age in determining how likely you are to face a lawsuit and the trend of malpractice claims getting bigger. Most recently, in part three, I provided details on the (growing) dollar amounts of the settlements and lawsuit verdicts that results in over $4 billion a year being paid out to plaintiffs by American physicians and their insurance carriers.

The Best Fight is the One Never Fought

The first, best rule common to asset protection, risk management and the martial arts is the same; avoid the fight. Every physician should be aware of the most common causes of medical malpractice claims and have a rigid compliance and documentation system that supports every choice they’ve made with special attention to the following. This list comes from the Medscape annual medical malpractice report and is based on a survey of thousands of physicians, this is what the doctors themselves reported.

Know the 10 Most Common Causes of Malpractice Claims

• Failure to diagnose or timely diagnose accounts for a full 33% of all claims
• Complications from treatment or surgery make up another 29%
• Poor outcome, disease progression 26%
• Delayed treatment or failure to treat 18%
• Wrongful death claims cause 16% of claims
• Abnormal Injuries 11%
• Poor documentation of patient instruction and education 4%
• Incorrect administration of medication 3%
• Failure to follow safety procedures 2%
• Lack of informed consent 1%

Other sources have similar reports, but add specifics including childbirth, infection, and anesthesia.

Playing Defense with Diagnosis and Documentation

Use the Diagnostic Tools at Your Disposal

With a third of all malpractice claims centered around failure to diagnose, thorough use of all diagnostic tools reasonably available is vital to protect your patients and yourself. In a previous discussion, I suggested that so called “defensive medicine”—a term embraced, if not coined by, insurance carriers aggrieved by paying for often expensive diagnostic procedures—was both good medicine and good business in terms of risk management for a physician. Very few cases are lost because a physician erred on the side of caution in ordering additional testing that was arguably medically appropriate, including more invasive testing that may be discretionary based on the severity of the patient’s condition.

Document Carefully and Completely

The key question in most malpractice claims is: “Did you do the right thing?”. The determination as to whether or not your treatment met the prevailing standard of care is made by third party expert witnesses based on a combination of the patient’s history, their medical records, your diagnostics, and the documentation you create of the patient’s diagnosis and treatment. A lack of documentation can be used against you in legal proceeding, especially if it’s something material that you recall doing but failed to note.

EHR systems have certainly helped make the process more uniform and time efficient, especially when it comes to making sure that tests you have ordered have been completed and that the results have been reviewed with the patient. Despite those benefits, as Avery Hurt noted in an article here on Physicians Practice, EHR systems do have their own weaknesses, especially when it comes to the use of standardized responses like clickable boxes and pull-down menus. Experts advise that those input methods are supplemented with personalized notes in free text fields that provide patient specific details. Among the key points in Hurt’s article:

• Documentation should always be contemporaneous, records completed or worse, altered, long after they care has been delivered tend to be less credible with juries and look self-serving.
• It should include both the details of your care and treatment and the patients own compliance with your treatment plan and your efforts to contact them and follow up.

_{About the Author}

_{Ike Devji, JD, has practiced law exclusively in the areas of asset protection, risk management and wealth preservation for the last 16 years. He helps protect a national client base with more than $5 billion in personal assets, including several thousand physicians. He is a contributing author to multiple books for physicians and a frequent medical conference speaker and CME presenter. Learn more at www.ProAssetProtection.com.}