Avoiding Common Malpractice Pitfalls

March 10, 2014

There's no way to completely mitigate malpractice risks, but knowing what to watch out for can help.

Podiatric surgeon Tom Del Zotto carries a heavy burden on his shoulders - and it's a burden that he just can't seem to shake. "What never leaves, whether I'm in the office or not, is the heightened state of awareness that there's a possibility of being on the receiving end of litigation," says Del Zotto, whose two-physician practice is based in Folsom, Calif. "The reality of private practice is, you can function completely within the standard of care and you can still be on the receiving end of litigation."

Many of you can relate. More than one-third of physicians have been sued for malpractice, and nearly one-fifth have been threatened, according to Physicians Practice's 2013 Great American Physician Survey, Sponsored by Kareo. Those statistics wouldn't surprise Del Zotto, who was sued but never found guilty of any wrongdoing. "If anyone's in practice for any length of time there probably will be a lawsuit at some point," he says. "It's just the law of averages."

While there's no way to completely eliminate your risk of a malpractice lawsuit, there are some ways to mitigate it. Del Zotto, for instance, ensures he has competent and experienced staff, focuses on detailed documentation, requires clear labeling of diagnostics, and prioritizes the timely return of phone calls and e-mails. He also never hesitates to call for more tests or consults if he has a question regarding a diagnosis. "I don't sit on the fence and ponder getting an MRI or a more sophisticated diagnostic test," he says. "I go get that diagnostic test so that I don't inadvertently underdiagnose the patient or misdiagnose the patient."

Taking a proactive approach to malpractice risk as Del Zotto does is a smart move, and many of his strategies are key recommendations provided by malpractice insurers and risk managers. To help identify more ways to lessen your risks, we asked the experts to weigh in. Here's what they say are some of the most common malpractice pitfalls that crop up in physicians' practices, and how you can steer clear.

Failure to follow up

Failure to diagnose or delayed diagnosis is the number one malpractice allegation physicians in small- to medium-sized practices experience, says Susan Shepard, a nurse and director of patient safety education for The Doctors Company, a nationwide malpractice insurer. While several factors may contribute to a missed or delayed diagnosis, failure to properly track and follow up on a diagnostic test or consult tends to be one of the most common.

"The physician needs to have a system in place where whenever lab tests, diagnostic tests, or consults are ordered, they get the results back and they review them," says Shepard. If such a system is not in place, mistakes - such as a staff member filing a test result before the physician reviews it, or a miscommunication that prevents a necessary test from being ordered - might crop up.

While employing a smart tracking system is critical for all practices, not all practices need to implement the same system, says Shepard. If your practice has an EHR for instance, you may be able to routinely sort through patient records to identify which tests or consults are pending. If your practice does not have an EHR, a log book or accordion file may suffice, says Shepard.

Regardless of which tracking method you employ, the key is using it effectively. For additional protection, require one staff member to ensure that all test results and consults are reviewed by the appropriate physician before they are filed, says Shepard.

Finally, whenever possible, let your patients know when they can expect to hear back from you regarding any test results or consults. If they don't hear back from you, they are more likely to call and check in, which can help your practice identify any results that may have fallen through the cracks.

Poor patient management

While failure to follow up on lab tests, imaging results, and consults is a common malpractice risk area, so is failure to follow up with patients regarding missed appointments, consults, or procedures.

It might not seem fair that you could be held accountable for a patient's failure to adhere to critical follow-up recommendations, but it happens all the time, says Jeff Brunken, president and chairman of the board of The MGIS Companies, Inc., a provider of insurance products and services specifically for physicians. "Your typical scenario is you've got a patient … [who] has all the signs of maybe early stages of cancer or something, and then that patient doesn't schedule a follow-up visit …," says Brunken, who also writes for Practice Notes, the blog at PhysiciansPractice.com. "If there is a patient [who] has signs like that, [physicians] need to have a very bulletproof process for follow up and they need to demonstrate that they have made every effort to follow up with that patient, order the correct tests, and basically chase down the patient."

As is the case with tests and consults, there's no one-size-fits-all system to properly track and follow up with patients. Brunken suggests flagging patient records awaiting crucial appointments or test results. Shepard suggests routinely sorting through records to identify which patients have missed crucial appointments. If your practice has an EHR or electronic scheduling system, you may be able to do this digitally.

If a patient continually fails to comply with your directions for follow-up care, send a letter by certified mail asking him to contact your office immediately to schedule an appointment and/or procedure, says Shepard. This will help demonstrate that you made every attempt to provide the patient with the appropriate care, should a lawsuit arise later.

To reduce the likelihood that you will need to take such measures, ask staff to schedule any critical follow-up appointments or tests before patients leave your practice, says Mike Tamucci, vice president of claims at medical malpractice insurer MagMutual. As is the case with sending a certified letter, this will help demonstrate your due diligence.

Communication breakdowns

Practicing good communication is another way to increase the likelihood that a patient will adhere to your follow-up care recommendations. Tell the patient why it is important for him to comply, and ask if anything will prevent him from doing so. "We find that many patients in today's society can't afford the out-of-pocket expenses, they can't afford the copays, or they won't go see a specialist because they can't afford it," says Laura Martinez, vice president of risk management at MagMutual. "Even though they’re standing in front of the office staff and the office staff is good about scheduling the appointment, they won't go." Providing the patient with an opportunity to discuss barriers to securing necessary care will enable your practice to identify a more suitable or alternative option, says Martinez.

This is just one example of how great communication between physicians, patients, and staff can decrease malpractice risk; and how poor communication can raise it. In fact, communication plays such a big role in reducing or increasing malpractice risk that Brunken says he provides physicians risk management resources that predominately focus on the "soft skills" involved in the patient encounter. "We see more importance there, but some physicians have a hard time getting there," he says.

To ensure communication is not raising your malpractice risks, here are some key communication breakdowns to avoid:

• Poor communication with unhappy patients. Unhappy patients are more likely to sue their physicians, so ask your front-desk staff to notify you when patients seem particularly dissatisfied with the care you provide. If staff informs you that a patient is frustrated by a long wait time, for instance, you can apologize to the patient as soon as you enter the exam room. Or, if staff informs you that a patient was upset when he left your practice, you can call the patient later that day to check in. "Something simple like that, little reach-outs, can avoid problems down the road," says Brunken.

• Poor communication regarding informed consent. Make sure you are complying with your state's laws relating to informed consent. "Failure to obtain an informed consent can by itself be a negligence or malpractice case," says attorney Lisa L. Havens, chief risk officer at Scott & White Healthcare, a large health system in Temple, Texas. In addition, she says, providing adequate informed consent will help ensure a patient thoroughly understands the risks of a procedure before agreeing to it. Therefore, she may be less likely to file a lawsuit if she experiences an unexpected outcome.

• Poor handling of phone calls. Your front-desk staff receives all kinds of phone calls from patients. To reduce malpractice risks, they need to understand what type of patient call is a priority, what advice is appropriate to provide patients, what questions they should ask, and what type of caller should be directed to call 911, says Shepard. Also, consider your communication protocols for patient calls to on-call physicians, and make certain those calls are documented appropriately.

• Poor communication during handoffs. Communicating well with staff and other physicians regarding a patient's care or a transition of care is critical. As health reform initiatives that stress integration between various health systems accelerate, ensure strong communication is a top priority before entering any new arrangement with other providers, says Brunken.

• Poor communication with staff. As more practices rely on healthcare teams to furnish patient care, communication between physicians and clinical staff members is crucial. Consider securing team-oriented training for you and your staff, says Havens. In addition, make it clear that your staff should speak up if they ever have a question or concern about patient care.

Lack of boundaries

While it's important to encourage your staff to ask questions and raise concerns, it's also important to establish strong boundaries regarding their appropriate scope of practice. Malpractice lawsuits related to scope of practice are common, and they are likely to become more common as health reform develops, says Shepard. "Physicians may be hiring more allied health professionals, the nurse practitioners or the physician assistants, and they may not have worked with those kinds of individuals before," she says. "Physicians should be aware of how they need to be supervising these individuals. For example, physicians need to know how often they should review the records of patients treated by these individuals. They also need to know the scope of practice of these individuals."

But it's not just the scope of practice of nonphysician providers that you need to pay attention to. You must also establish clear parameters for all staff members regarding clinical tasks they are permitted to handle, and those tasks that should be passed on to you and your fellow physicians, says Martinez. She recommends ongoing orientation and education for staff regarding what's within their scope of practice.

It's also a good idea to measure and document staff competencies annually to ensure that no one is responsible for tasks for which they are underqualified or undertrained, says William McDonough, past president of the Massachusetts Society for Healthcare Risk Management, an organization made up of risk management, legal, insurance, and claims professionals. He recommends creating checklists noting the skills and qualifications required for each staff member based on guidance from various medical associations, specialty groups, and/or state laws and regulations. Once you have the checklists created, see how your staff members match up. Also, consider whether staff is properly trained on the technology they are using, says McDonough. "It really, I think, makes the practice safer that someone is looking at all staff on a regular basis, what their competency is for the work that they're doing, particularly those that are working with patients day to day."

Communication missteps

Poor communication with patients can increase your malpractice risks. To view a list of 10 things you should never say to patients, visit bit.ly/Do-Not-Say-That.

In Summary

Don't fall into these common malpractice pitfalls:

• Poor tracking and follow up of labs, tests, and consults

• Failure to follow up with patients who miss critical appointments, tests, and referrals

• Communication breakdowns between physicians, staff, and patients

• Lack of clear boundaries for scope of practice and clinical competency

Aubrey Westgate is senior editor at Physicians Practice. She can be reached at aubrey.westgate@ubm.com.

This article originally appeared in the March 2014 issue of Physicians Practice.