The Do's and Don'ts of Medical Malpractice

June 19, 2017

Don't let a lack of communication, EHR misadventures, or failure to be prepared lead to a damaging malpractice suit at your practice.

Medical malpractice takes many forms, whether it is an unexpected poor outcome from a procedure or mistakes made via an EHR.

One important thing to realize is malpractice lawsuits rarely make it to trial. In fact, according to the U.S. Bureau of Justice Statistics, all but 7 percent of medical malpractice cases are settled out of court.  The ones that do go to court can cripple not only a practice, but a physician's livelihood and reputation as well.

"Most claims are settled and don't go to the level of a full-blown medical malpractice trial with a jury verdict. But the ones that do have reward in the millions. …You cannot get sued and believe your business, practice, career are just going to continue to roll along like nothing happened," says Ike Devji, JD, an asset protection attorney in Phoenix, Ariz.

Here are some strategies to avoid being sued at your practice in the first place.

Communication is Key

Because taking care of a patient does not yield 100 percent positive results, a constant line of communication between a physician and patient can go a long way toward avoiding a lawsuit, says Michael R Marks, MD, MBA orthopedic spine surgeon and founder of Marks Healthcare Consulting in Westport, Conn.

"Patients sue because they feel deserted, devalued, or that they have not been given the complete answers for what's going on. When something bad happens, physicians need to get closer to their patient, stay on top of the issue, and let the patient know they care," says Marks.

Unrealistic expectations, often a byproduct of poor communication, can set physicians up for failure.

"Doctors are great at explaining the clinical aspects to patients, but we don't necessarily go over the alternatives or risks all the time. And we rarely go back and make sure the patient understands what we are talking about, says Marks.

For example, Marks cites data that says complications following spine surgery happen to roughly 1 percent of patients. "I would explain that risk to patients and they would say 'oh that's really low.' It is low, but somebody does get affected. And, if it happens to you, that risk is 100 percent and you won't care about the other 99 percent that didn't get affected. Explaining risks beforehand is important," he says.

It is often the actions and communication the physician has with a patient following an adverse or unfavorable event that determine whether or not a claim will be filed, according to attorney Michael Sacopulos, JD, from Terre Haute, Ind.

"[Being sued] has little to do with the physician's ability as a clinician, it has much more to do with their ability as a communicator. An explanation of how something went wrong and why it won't happen again does more to deter a lawsuit than anything else," says Sacopulos. "Physicians tend to judge themselves on clinical ability, they have this specialty knowledge, but the patients don't have that knowledge, so they are going to judge you on how well you interact with them."

The fear of confrontation shared by many physicians following an adverse event can often lead to a lack in communication, according to Sacopulos. "Physicians want to help [patients]. But when something goes wrong, many don't feel comfortable apologizing. [Apologizing] runs against the grain of their personality, but that is what needs to be done and that is what patients want, even if it is uncomfortable. Not acknowledging what happened before moving on is a recipe for disaster," he says.

Ericka Adler, JD, a regulatory transactional healthcare lawyer out of Chicago, Ill., often tells her clients to assume they are the only ones seeing that patient. "A lot of times it's the switching off between different types of docs that get them into trouble [when they] assume that someone else is the one overseeing a particular issue. … [Physicians] need to ask all of the questions and document what they did and did not do," says Adler.

Marks agrees with Adler, noting that any part of a medical team can be dragged into a lawsuit at any time. He notes that practices are only as strong as the people on their staff.

EHR Misadventures

The widespread adoption of EHRs created a learning curve for many physicians. Although these software programs were created to improve patient care, they were designed with the main priority of compliance with Meaningful Use, putting physicians in a tough spot, according to Marks.

"I go to my physician and depending on what exam room I get, I either see the crown of her head as she's hunched over, typing away, or I see the back of her head. [Her] eye contact is with the monitor screen, not with me," says Sacopulos, who adds this puts physicians in a difficult situation.

"It's unfair to physicians because they are being pushed to see so many patients, they have so little time, and they are told by [lawyers], 'If it's not in the medical record, it didn’t happen, get everything into the record,' which means they are typing like crazy," he says.

EHRs not only affect patient-physician communication, but if misused, can lead to a bevy of medical malpractice opportunities including misdiagnosis and ordering the wrong tests, or prescribing the incorrect medication.

"If you're using a click-down menu and by mistake you click on a wrong thing [from a drop-down menu], it can lead to problems. …It all comes down to double checking your work," says Adler, who also advises her clients to review patient's complete medical records before administering tests.

"Being sure you have the patient's full medical record, and keeping an open line of communication in the event of a question either party may have is a recipe for a successful physician-patient relationship,” says Adler. “Are you writing prescriptions without knowing what else they are on? Have you checked the database, have you asked the patient? A lot of times, minimizing risk is malpractice really has to do with getting the patient's full record."

EHRs track every move a user makes, something that can be used for and against practices in a medical malpractice lawsuit. If a physician is using copy and paste or taking other shortcuts, that data is stored and can be called upon down the road, according to Sacopulos.

"People have trouble with EHRs because of copying and pasting from prior exams or tests. Because all of the info was accurate, they think it's a quick way of doing data entry. But during a trial, it can look like you took a shortcut," says Sacopulos. "…There's no place to hide in the digital age, everything is captured.”

Copying and pasting may be a particular challenge for younger physicians, who are used to quick updates on social media networks, such as Twitter and Facebook, argues Rachel Rose, JD, a Houston, Texas-based attorney.

"Failing to document can take many forms and one is taking shortcuts with an EHR. If you're copying out of one patients record to [paste into] another to save time, obviously things are missed and what goes into another person's record may not be accurate," says Rose.

She also pointed out that anything not in the electronic record is very difficult for a physician to prove in the courtroom.

"Especially if the case is years down the line from the actual encounter. If [the record] is not there, the perception is you did not do it," says Rose.

Be Prepared

Doctors of all ages need to mentally prepare for a lawsuit, experts say. Knowing that a lawsuit is a real possibility can be a tough realization for a young physician, according to Adler. "I work with a lot of young docs and what I want them to know is that there's the possibility that [a lawsuit] is going to happen. They need to think ahead and make sure they have estate planning done the day they start earning money as a physician. The time to protect your assets is in the beginning of your career. Go see a lawyer," says Adler.

But while it's important for young physicians to realize the potential for a malpractice suit, it is equally important for veteran doctors to never lose sight that being sued is a possibility. Devji has witnessed experienced doctors deny the possibility of a lawsuit right up the point of being sued.

"Experienced docs who have been in practice many years often feel that [their past] guarantees their future experiences and results. Docs will say to me, 'I've been in business 20 years and never had so much as a complaint, I'm not worried about it.' That is the guy who typically calls me for help after he's been served with a lawsuit," says Devji.

If you're looking to avoid a lawsuit in the first place, experts say communication and following-up with your patient is your best bet, something that Marks has learned firsthand during his career.

One of Marks' former orthopedic surgeon partners had a bad patient outcome. That physician referred the patient to another health center for subsequent care, continuing to call the patient and check up every week. The second surgeon did not have good results either and wound up being sued.

"[The patient's attorney] said 'we should sue the original doc who took care of you., but the patient said 'no, he's the only person that cares about me, he still calls me every week to see if he can do anything for me," explained Marks.