Forget golf or tennis. “Litigation has become America’s favorite sport,” muses Samuel N. Klewans, JD. With lawsuits seemingly everywhere, and with fewer people putting doctors on a pedestal in today’s consumer-driven healthcare environment, physicians could be forgiven for feeling like they’re on the front lines of this new sport.
Though the healthcare landscape has changed dramatically over the last decade, today’s typical lawsuit isn’t all that different from years past. However, the tactics of individuals pursuing litigation may be changing. “There is more willingness to try to get creative with claims,” says Matthew Fisher, JD, partner and chair of the health law group at Mirick O’Connell in Worcester, Mass. He references a recent decision in Connecticut that reflects this trend, where the release of an individual’s record may not have been handled appropriately and the state recognized there could be a state-level breach of privacy. Different locales have taken it upon themselves to initiate privacy legislation, making it more critical than ever that physicians are aware of what’s happening where they practice rather than simply monitoring rulemaking at the federal level.
Society may have become more litigious, but that doesn’t mean physicians need to take the brunt of it. Outside of medical errors, there are some common mistakes physicians make that are likely to result in a lawsuit. Knowing these risks—and having a strategy to address them—can help reduce the chances of becoming a target.
Poor employer practices
While medical mistakes often get the most attention, “the biggest risks do not necessarily arise out of the role of being a doctor,” Fisher says. Instead, owning a practice may present more opportunities for errors. The absence of policies to guide interactions with staff, whether they’re other doctors, licensed professionals, or nonprofessional staff, is one primary area for concern.
Without clearly defined policies and procedures in place, everyday activities can become legal landmines. Workers may find seemingly simple tasks such as getting the time and pay they have coming to them inordinately difficult. Fisher says a suit may arise through a failure to provide the appropriate type of time off or having an outdated policy. If employees feel they’re being shorted by the practice, they could pursue a claim.
Bad documentation habits
Diane C. Fernald, RN, JD, vice president of education and consulting services at Med-IQ, headquartered in Baltimore, says that what she calls “transactional or process errors” lead to more malpractice cases than medical errors. Documentation is one area of focus in many lawsuits and poor or insufficient documentation practices can put physicians on risky legal footing.
Even giving a patient accurate information but not writing it down might lead to trouble years later. The passage of time dims the physician’s recollection, and the busy nature of the practice environment only compounds the problem. “You’ve seen hundreds of patients since then and there’s no way to remember with any clarity what you said or did,” Fernald says. With little defense at hand, a claim might not be far behind.
Lackluster patient communication
Patients want to know what’s going on with their health, but physicians make communication mistakes that muddy the waters. Rather than being clear and consistent, doctors tend to use medical jargon or offer confusing descriptions of health conditions and the planned treatment strategies. “Many patients, particularly those with less education or lower economic classes, are too embarrassed to ask what the doctor means or what they’re talking about,” says Klewans, a partner at Grad, Logan and Klewans, a law firm in Falls Church, Va. He has experienced this lack of translation himself. “It has happened to me with doctors, and I said, ‘Tell me in English, something I understand.’” If a physician seems to be speaking a different language, patients may not even know what questions to ask.
Patients who feel their provider has been thorough, that everything was explained to them along the way, are less likely to pursue a claim if there’s an unexpected or unwanted outcome. “But if the physician is not communicative, he’s going to get sued,” Klewans says. “As a caregiver, it’s the doctor’s job to help patients feel comfortable.” Patients’ families are also a frequent part of the equation, something physicians don’t always consider. When patients and their loved ones don’t have a good understanding of the care and planned procedures, a lawsuit could be on the horizon.
Being a jerk
Perhaps the No. 1 way physicians can guarantee they’ll be the served with a lawsuit is extraordinarily simple: Be a jerk. Michael Mustokoff, a Philadelphia-based partner at law firm Duane Morris, says patients have expectations for how providers behave based on their previous experiences and what they see on television. These idealistic personages can include Marcus Welby, Trapper John, and Greg House.
What patients don’t expect is to be treated unkindly because their physicians are stressed by the rigors of running a business, or because they must sacrifice time providing care to deal with nonclinical issues, such as reimbursements and licensure headaches. “When the most careful, astute and skilled physician makes a mistake—and they all do, no one is infallible—how the patient regards the effort is every bit as important as their result,” Mustokoff says. If the physician is a jerk in those circumstances, the mistake is amplified. Patients who feel wronged may see a lawsuit as a fitting redress.
Technology has also shifted the risk picture. It streamlined many historically time-intensive tasks, but it has also created opportunities for new types of mistakes. The copy-and-paste function is a good example. Fernald acknowledges it makes data entry quick and easy but warns it can be a detriment if it’s used without sufficient attention to detail. Erroneous information can easily be added and then inadvertently perpetuated within the patient file, for example, potentially planting the seeds of a lawsuit down the road. “The other providers who are looking at the record see the bad information instead of what’s really going on, and then decisions are made on inappropriate data,” Fernald explains.
Julie Knudson is a freelance healthcare writer located in Alexandria, Va.