Lawyer Repellant

March 1, 2010

Do you feel helpless against the threat of lawsuits? Many docs do. Yet there are ways to reduce your risk of being sued. Arm yourself with best practices, to keep malpractice lawyers at bay.


Before a catastrophic knee injury, Eliot Menkowitz’ patient was a record-holding weightlifter who could squat 720 pounds.

After surgery, the best he could do on a rehabbed knee was maybe 700, recalls Menkowitz, an orthopedic surgeon in suburban Philadelphia.

The patient was irate, angry that Menkowitz had ruined his life and career as a squatting champ. Menkowitz’s reaction to the outcome? Write it up in a journal as a resounding success.

“Patients’ expectations sometimes are not in line with reality,” says Menkowitz, founder of Doctors Advocate, a company aimed to help protect healthcare professionals from frivolous lawsuits.

Those unreasonable expectations are often why some patients file malpractice lawsuits, Menkowitz adds, which is why he makes sure to have frank discussions with his patients about their expectations of the outcome. The chances of his knee-replacement patients continuing on to run the 100-yard dash or ski in a downhill race are slim, he says.

Luckily, the squatter didn’t sue, but in his line of work, Menkowitz is no stranger to litigation. In fact, for physicians trying to avoid a malpractice suit, Menkowitz advises: “Quit medicine.”

Indeed, a malpractice suit can drag on for years, cost you time out of the office, and take a toll on you and your family. But while it may seem futile, there are ways to protect yourself from the hungry malpractice attorneys and sleepless nights that come with a lawsuit - that don’t require you to hang up your white coat.

Communication is key

Managing a patient’s expectations is a critical piece of shielding yourself from a lawsuit. Indeed, it’s “absolutely fundamental to the whole process” of patient relations and risk management, says Kenneth Hertz, a principal with the Medical Group Management Association Health Care Consulting Group.

Sounds simple enough. But it’s not. “Expectations can differ from patient to patient,” says Tom Cox, president and managing member of Bluewater Solutions LLC, a risk and insurance management firm in Richmond, Va. A Miss America contestant, for example, might be more troubled than another patient by the skin discoloration side effect from an iodine shot, he says. You have to take the individual into account when discussing potential outcomes.

The “no surprises” adage applies here, Cox says, so you have to make sure you have properly communicated everything to the patient and his family.

Sometimes, this might mean stretching a conversation over a few visits. Medical information can be complicated and at times hard to hear. It might take some patients longer to grasp what’s happening.

“When people get stressful information, they hear nothing. They hear the first sentence that comes out and their mind goes blank,” says Jeffrey Segal, a neurosurgeon and CEO of Medical Justice Services, Inc. based in Greensboro, N.C. “It requires messaging over and over again.”

Segal recommends you give the patient information in advance, if possible, such as well before a procedure. Go over it a few times, and the patient is more likely to get the message.

“You’re seen as someone making a Boy Scout effort to impart positive information, and the message will be received, the content will be received,” he says. “And I think the gesture will be appreciated. Both of those are important.”

Rodney Adams, leader of the Tort Defense Group, at Richmond, Va.-based law firm LeClairRyan, suggests you provide handouts and pamphlets to the patient and family before they leave your office. The written materials can support the message you’ve tried to convey, and they will be there when the patient is ready to process the information.

Of course, the communication doesn’t end after the office visit. The follow-up can be just as important - if not more. Here’s a common scenario: A patient receives a lab test or blood work, the physician reviews it, and the results go into her chart. When the patient doesn’t hear back from the office, she assumes the results are normal. That’s usually fine if, in fact, the result is normal. But, Segal notes, “You should proactively communicate not only abnormal, but also the normal.”


Segal suggests going further by offering your patient a guarantee that she will hear back from you after the results are in. If she doesn’t hear from your office within a set period of time, the visit is free. It’s a bold move, yes, but it will motivate you and staff to make sure the communication chain doesn’t break, he says.

“My guess is it will never cost you a penny,” he says. “The whole office will be primed to prevent this from happening. It would shock me if it happened more than once or twice.”

Whatever your process for follow-up, put that process in writing, says Hertz. Put a plan in place and make sure the entire staff follows it - and understands just what’s at stake.

When something goes wrong

Thorough communication is a fine policy for reducing lawsuits based on a patient’s misperception of reality, or simply a misunderstanding. But when something bad actually happens - an ordinary adverse outcome, perhaps, a complication, or even a genuine medical error - well, that’s when it’s time to shut up and close ranks, right?

Wrong.

On the contrary, when something bad happens, good communication is often the difference between a lawsuit being filed or not. Communication should happen at all stages of interactions with the patient and family - even after a bad outcome or a problem.

“We often hear during deposition from a patient or family member that ‘Nobody ever told us what happened,’ or ‘The doctor wouldn’t talk to us,’” Adams says.

But, Adams notes, “If carefully thought out, you can engage most families in conversation and avoid the litigation.”

What about apologizing for a mistake or outcome, whether or not it was your fault? That’s a tricky one.

You can show empathy toward your patient, without admitting negligence or error, Segal says. How you say it is important, though.

“It needs to be done properly,” he says. “If you say, ‘Sorry, I screwed up’ and you didn’t, you will burn.”

Put it in writing

No matter how many times you have the conversations or how clearly you have communicated with your patients, it means little unless it’s documented.

“I think the default position is if it wasn’t documented it wasn’t done, and the third party is left to fill in the blanks,” says Segal, adding that communication and documentation are the two time-tested ways to avoid a lawsuit.

Document everything - yes, everything. Don’t forget about the correspondence between you and other physicians, either. Adams says he often sees poor documentation between a specialist and the primary-care doc.

Phone calls between you and the patient should also be documented. Making notes of the exchange in the patient’s record will protect you against claims that you didn’t return a call.

Another way to document the phone call is to return calls from your cell phone, says Segal. Many cell phone carriers will have records of the calls placed, he says, shoring up your defense that you did in fact call back.

“You may not have access to that information on a land line,” he says.

Charlene Burgett, an administrator for North Scottsdale Family Medicine, an eight-physician practice in Scottsdale, Ariz., solved the problem of phone call records. “I was just getting so frustrated by the he-said-she-said thing, hearing patients complain my staff was rude or didn’t call them,” she says.


So about two and a half years ago, she implemented a voice recording system on the phone lines, a move she called “the best thing I have done in my 25 years” as an administrator.

Every call is recorded (a few lines, like the physicians’ desk phones, aren’t recorded), protecting her physicians from licensing-board complaints and lawsuits alike. (She also has been able to use the records to prove a patient’s allegations were founded, leading to discipline for an employee.)

Soon after implementing the system, a patient filed a licensing complaint, claiming that her wart-removal treatment wasn’t going fast enough and she wasn’t being treated right. Burgett was able to pull the voice documentation to prove the complaint lacked merit - and within a few weeks, the complaint was dropped.

Before investing in a recording system, bone up on your state’s laws governing recorded conversations. In Arizona, only one party must be made aware that their conversation is being taped, but many other states require both parties to be informed. In general it’s best to simply inform callers, as a matter of policy and process, that their call “may be recorded” if indeed you use such a system.

Again, it’s time to look at your processes. Do you have a policy outlined for how you handle information, record calls, or track lab results?

Cox advises practices to conduct regular audits to find the communication and documentation gaps - ideally, before they could turn into a lawsuit.

While conducting audits on practices, Cox routinely saw process gaps that could endanger patients. Patients not called when test results come in. Records wrongly claiming that a patient has no allergies.

Each quarter, have an administrator randomly pull five charts per physician. Go through the charts looking for any of these kinds of violations and write a report on the findings.

“It always opens eyes,” Cox says.

The next step, of course, is to find out why the mistakes happened - and fix them. What is a staff error? A process problem? Determine what went wrong and find ways to make sure it’s not a recurring issue.

It may also be worth documenting you and your colleagues’ own competency, to protect against allegations from patients that the physician was too old to practice, says Deborah Meyer, a health and business law attorney in Cary, N.C.

She recommends practices protect themselves from age-related allegations by conducting fitness-for-duty evaluations at a certain age.

“What happens when that physician is 70 and can’t do surgery, but doesn’t want to retire?” she says. “That can put the entire practice at risk.”

It might seem like a sensitive topic to address, particularly with some of your more senior partners, but having the evaluations set in policy takes the personal element out of the discussion. The evaluation can help defend a physician, as well as help avoid some of the anger and hurt feelings among colleagues.

“It allows the physician to exit gracefully and protects from potential malpractice liability,” she says.

Set the tone

Shoring up your practice against a lawsuit isn’t a one-time exercise. Once you’ve reviewed your processes and audited your charts, you must incorporate the changes to ensure you are taking all the right steps - every time you make a call, write a note, and order a test.


But it’s also not enough to make changes in your own day-to-day work, nor is it sufficient merely to have strong communication skills, build friendly relationships with your patients and colleagues, and document meticulously.

You are also responsible for everything that happens in your practice, from the reception desk to the nurses to the billing office.

There’s a little thing called “vicarious liability,” Cox says, which means the physician is responsible for what the staff does - and doesn’t do. Your staff has to understand just how important this is to your practice.

“The whole staff, the entire practice, has to take responsibility,” he says. “The physician needs to set the tone and make it clear what the expectations are.”

The message of how to avoid a lawsuit can’t just be delivered once at a staff meeting over lunch, Hertz says. “You have to have ongoing training and education about this,” says Hertz. “You have to constantly be vigilant about this.”

It’s also a good idea to be wary of difficult patients. You know the one who complains about her six previous primary-care physicians? All those “incompetent” docs she saw, all of them ogres? “Odds are you will be the next ogre,” Segal says.

You have to find the right match, and if a patient seems to be unable to get along with any other physician, or he has sued several others before reaching your waiting room, beware.

Further, if you find yourself in constant conflict with a patient, you can’t communicate with him, or you are always feeling tense and agitated with him, it’s not a good fit, Meyer says.

“It’s a consensual relationship, and you are not required to keep seeing a patient,” Meyer says.

Knowing when to fire a patient is important, she says, but don’t be hasty. Make sure, first, that you send written notice and continue to provide care for a set time before severing ties.

In the end, one of the most effective ways to protect yourself from a malpractice suit is to practice good medicine, Cox says. “You can always be aggressively defended if you do the right thing for patients.”


Sara Michael

is a senior editor at

Physicians Practice

. She can be reached at sara.michael@cmpmedica.com.

This article originally appeared in the March 2010 issue of Physicians Practice.