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Identifying the litigious patient: Watch for these red flags

Physicians PracticePhysicians Practice September 2023
Volume 1
Issue 3

A medical liability case can be a source of anxiety within your practice and personal life.

stethoscope and gavel | © yavdat - stock.adobe.com

© yavdat - stock.adobe.com

Many physicians will, at some time in their careers, be involved in a medical liability claim. At least one-third of physicians in the U.S. will become involved in a lawsuit at least once during their careers. Although adverse events and poor outcomes in medicine occur daily, most of these events do not result in medical liability claims.

However, a medical liability case can be a source of anxiety within your practice and personal life. Wouldn’t it be nice if we could identify which patients were likely to be a source of litigation and find ways to prevent it? This blog will provide some examples of identifying patients who are likely to sue their physician and what can be done to avoid such an occurrence.

Unfortunately, patients don’t walk around with signs saying, “I sue physicians,” but they give us clues that tell us when they are putting us at risk. According to James Saxton, a malpractice defense attorney in Lancaster, PA, only 15% of patients create 90% of the risk.

Results of the Harvard Medical Practice Study III (N Engl J Med 1991; 325:245) suggest the three most common allegations of negligence are misdiagnosis, improper treatment, an improperly performed procedure, and improper medication administration. In the study, conditions that plaintiffs most frequently claimed were misdiagnosed were malignancy, cardiovascular disease, and infectious disease. The most common claim of an improper procedure was the lack of physical examination. Classes of medication most often cited in allegations of negligent administration were anticoagulants and the use of steroids.

Other allegations included abandonment of a patient, lack of informed consent, and failure to refer or obtain consultation.

Here are examples of patients who are likely to bring a lawsuit against their physicians:

Patients with chronic medical or psychological problems. Often these patients are looking for someone to blame for their f malady. These patients require more attention than those with less complicated or more acute medical problems. They need more time to explain all their concerns, have more questions, do more Internet searching, and arrive with a briefcase of downloaded material they want their physician to review.

Spending a minute or two more with these patients, encouraging them to write out their questions before coming to the office for an appointment, and providing them with educational material on their disease or condition that you think is credible and unbiased.

Patients who need help understanding a course of treatment, procedure, or care you provide put the physician at tremendous risk. Misunderstandings may result from language, culture, intelligence, or age barriers. You can identify this patient by asking, “Would you tell me that you understood what I am suggesting for you by repeating what I just said?”

When the feedback you receive isn’t correct, or you have identified a patient that clearly doesn’t understand their diagnosis and treatment plan, then you know you need to find out what the barrier is and then proceed to connect with the patient. Often, having a patient’s family member with you to help with the communication can eliminate the misunderstanding.

Patients critical of other physicians should be treated as any other patient. Still, their medical records should be meticulously documented as a precaution. Make it a point to avoid criticizing another physician. Too often, a physician will remark to a patient that a previous doctor’s treatment was substandard and even write such a comment in the chart. This may backfire on the physician who made the disparaging remark and could even become the impetus for a lawsuit against them by the offended doctor.

Physicians are frequently involved in cases that present complexities in patient management and communication with family members and other physicians. The physicians involved should speak with each other regularly to outline their roles and ensure that someone talks with the patient and family members regularly. In the chart, it is advisable to document which physician will be responsible for such tasks as managing the ventilator and writing orders for anticoagulation. If this is not done and an adverse event such as a stroke occurs, all physicians involved may be sued.

Other patients who may put you at risk include the noncompliant patient, the patient involved in previous lawsuits, the patient who has seen multiple other physicians for the same medical problem or condition, the patient who is very demanding but does not keep appointments or follow your advice and suggestions, the difficult patient who is discourteous to you or your staff, the dissatisfied patient or the patient with a complication who you turn over to a collection agency, the patient who makes unreasonable requests, and the patient who comes with a tape recorder and requests to record their conversation with you.

For physicians in surgical specialties, the issue of informed consent is one of the most common causes of litigation, especially in patients with a complication or unfavorable results. A patient must be given sufficient information to make an informed treatment decision. Treating a patient without consent or exceeding the consent may render the physician liable for battery and lack of informed consent.

It is imperative to allow the patient to ask questions, explain all significant risks, benefits, and alternatives, and document the conversation in the medical record. Documentation is crucial, as patients forget to give informed consent once an adverse event has occurred.

The issue of informed consent becomes a factor when patients experience an unexpected but known complication. Too often, physicians feel that they will frighten away a patient if they discuss all possible risks.

However, this tactic often backfires when patients feel that they were misled into undergoing treatment. It is better to inform fully in all situations rather than face potential negligence claims.

When a patient has a medical problem that is not responding as you intended, or the response is incompatible with your working diagnosis, you may request a consultation.

Never be afraid to admit that you do not have the answer, nor be reluctant to request consultation when it may benefit your patient; such actions demonstrate strength rather than weakness. Patients respect this candor and will almost always follow your recommendations if you inform them that you feel it is in their best interests to consult another physician. It is far better for you to control the second opinion or the consultation than have the patient find a consultation independently.

You can recommend a colleague who will understand the situation and handle it tactfully. You are also likely to have the patient return to your practice rather than the dreaded “request of records” letter asking you to send the records to someone who may not be your ally in a difficult situation.

When a patient requests a transfer of records to another physician, I recommend that you send the records to the patient and include a note indicating that you are interested in their health care and that you and your staff are available to assist them in any way. This shows that you have complied with their request, are concerned and compassionate, and are leaving the window open for them to return or assist them in the future.

Bottom Line: The likelihood of being sued depends on factors such as the physician’s specialty, practicing within the limits of one’s expertise, medical documentation or lack thereof, and communication and rapport with patients and their families. You can reduce your exposure by recognizing those patients who place you at increased risk for litigation.

Neil Baum, MD, a Professor of Clinical Urology at Tulane University in New Orleans, LA. Dr. Baum is the author of several books, including the best-selling book, Marketing Your Medical Practice-Ethically, Effectively, and Economically, which has sold over 225,000 copies and has been translated into Spanish.

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