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Now more than ever, it’s important to take proactive steps to prevent being sued.
The good news about lawsuits: You can take targeted steps starting today to minimize risks in the future.
Minding legal obligations around employer-employee relationships, showing genuine concern for patients and staff, and treating anger or unhappiness in the practice as legitimate issues are just some of the ways physicians can reduce the risk of a lawsuit.
Write (or rewrite) your employee handbook
In the employee-employer relationship arena, it’s important to have a good handbook that addresses both federal and state law issues, says Matthew Fisher, JD, partner and chair of the health law group at Mirick O’Connell in Worcester, Mass. States may have specific requirements around maternity and paternity leave, for example, or how much (if any) notice a practice can demand employees provide before taking sick or personal leave. By becoming familiar with their rights and obligations as employers, physicians and practice managers can reduce their risks of litigation stemming from human resource problems.
Fisher encourages physicians to avoid a “head in the sand” mentality, where a lack of past problems leads them to believe they’re in the clear. Practices should be proactive, thinking ahead about how to implement the necessary protections and promote an appropriate workplace environment. The strategy will require the investment of time and money in compliance and developing good employee relations. In the long run, though, Fisher says this will prove beneficial. “If someone starts to worry about something, it will be reported up and you can work your way through it before it becomes a lawsuit.”
Address risk head on
One approach that can be tremendously helpful is to form risk committees in the practice, and for physicians to actively participate in identifying high-risk areas, says Diane C. Fernald, RN, JD, vice president of education and consulting services at Med-IQ, headquartered in Baltimore. If those at the top make it clear they recognize that medicine is a risky business, everyone in the practice is in a better position to identify and bring forward any potential liabilities. A medical assistant may notice the practice lacks a location where they can speak quietly during patient intakes. “If they feel that no one will snap their heads off if they go directly to the head of the practice and say, ‘I think we should be doing things differently,’ then people are more likely to suggest ways to improve the practice,” Fernald says.
Another strategy involves implementing a daily huddle where staff come together to plan how to handle whatever’s on the schedule. The effort can be as simple as a five-minute discussion that covers a quick rundown of the day’s challenges-calling attention to elderly patients who might need extra attention, for instance, or developing a plan to deal with an unplanned staffing shortage. Practices that are proactive about spotting potential problems and having a solution at hand can circumvent a number of common risks. “They make it part of their professional practice to recognize it, understand it’s something they have to deal with and then work as a group to try to identify their risks and what to do about them,” Fernald says.
Consider the patient perspective
General communication skills can be improved by looking at interactions from the patient’s perspective. “There’s no element more important to avoiding a malpractice claim than a healthy doctor-patient relationship built on clear and effective communication between one another,” says Samuel N. Klewans, JD, a partner at Grad, Logan and Klewans, a law firm in Falls Church, Va. He suggests physicians try putting themselves in their patients’ shoes, viewing interactions from their perspective. Putting time into patient relationships outweigh concerns about already too busy schedules. People expect timely replies to calls and e-mails. Don’t rush through appointments. “Your patients are very concerned with their health, and when they’re meeting with you, they want to believe you’re very concerned about them, too,” Klewans says. Showing empathy and taking the time to fully answer patients’ questions during the visit can go a long way toward making them feel comfortable.
Even as other risk areas are addressed, reducing the risk of a suit can sometimes be tricky. Unhappy patients and disgruntled employees are equally likely to file suit against someone they feel has wronged them, and who was vindictive or insensitive in the process. “I would say the leading trigger is the loss of employment, which may well be justified,” Mustokoff says of claims filed by staff against a physician. From the patients’ standpoint, sensitive discussions that take place in public areas such as waiting rooms, the hallway outside an exam room may appear thoughtless or mean spirited, even if that wasn’t the intention. “The number one thing would be a prompt investigation of all complaints, and a response made to the complaining party,” Mustokoff says. From there, physicians should continue monitoring the situation until it’s resolved.