Document informed consent. This one is going to sound obvious, but Brenner says that informed consent issues "are probably the number one reason why doctors will win or lose a case as far as documentation." Get the signature from the patient, from a fellow physician, from a family member in the room about a treatment or procedure, she says, and if you are using a standard form, go outside the lines and document more than required.
"Draw pictures, sketch it out," she says. "The jury will say, 'wow, the physician took the time to write on the form and so clearly explained it to the patient,' because most times, patients will sue because they feel they were never told what was going to happen."
And once the form is done, also note informed consent in the medical file, including who signed off and who witnessed signatures. As an ER doctor, Brenner has seen that in times of stress — especially for family members — things can be forgotten.
Don't change your chart. As Groszkruger puts it, the record is "almost sacred" in the sense that whatever is captured at the time is it and isn't to be touched later on.
He says it is probably "the first instinctive move" by a physician who learns of a potential complaint that their documentation was thin and that if they could only add more detail, it would be crystal clear.
"From a legal point of view, you take a case that is totally defensible and turn it into a loser, because somebody was trying to embellish the record or make it sound better than it actually does," Groszkruger says.
You might think you were simply trying to provide more thorough document than what's included in the original record, but a plaintiff's lawyer will likely make it seem like you were trying to cover your tracks. Groszkruger likens it to Watergate, "where the cover-up was worse" than the actual event. There are instead proper channels to add addenda or notes to a chart without impacting the record itself.
Brenner has seen cases where physicians ripped out a page of the record thinking it would never be discovered — it was— as well as physicians who have asked a PA or nurse to take the fall for an altered record, so as not to jeopardize their own careers.
She has even faced a situation where a patient's symptoms of appendicitis were diagnosed as related to her pregnancy. When the woman's appendicitis worsened, a colleague recommended to Brenner that she change her initial diagnosis in the yet-to-be-completed chart to conceal her error.
Don't pass the buck. Along those lines, if a mistake is made or a bad outcome occurs, don't blame a colleague, another member of the health team, or the patient.
Etherton recently settled a case where a doctor blamed the patient's bad outcome his own failure to take prescribed medication, but the doctor's chart "was a mess" and could not be clarified by the physician as to what he meant in his entries.
"Blaming the plaintiff never helps the doctor," she says. "It embroils everything, takes it to a different level than a physician being able to argue that this was just a bad outcome or this was my clinical judgment. It makes it really personal and I think that is a bad way to go."
Groszkruger also notes not to blame the current public villain in healthcare: insurance companies.
"Even if you genuinely feel that way … it really does not help you individually, and in the litigation context, is absolutely going to harm you," he says.
Develop systems at your practice. Colon is a big proponent of monitoring a patient's lab work and having a set follow-up plan for communicating the results to physicians and patients. Failure to deliver positive or negative news to a patient in a timely manner, with next steps for treatment, could spur a claim of negligence.
"This is something you can work on at your practice," Colon says. "You can reduce the risk of medical malpractice by developing systems within your office. They are not real hard to figure out."
Don't practice in fear. Yes, you might get sued. If you practice long enough, chances are good that you will get sued. Chances are also good that at some point along the way, you'll make a few mistakes. But practicing defensively by ordering every test under the sun, "just in case," even when you know it isn’t clinically called for, isn’t good medicine. Clamming up the moment something goes wrong, or treating patients and their families as rank amateurs who must be spoken down to or avoided altogether isn’t good practice either.
Practice your best medicine. Be honest, friendly, communicative, and conscientious. Does this guarantee you won’t be sued? Certainly not. But it reduces your chances of a lawsuit and gives your best chance to prevail should there be one.