The Medical Malpractice Trap for Physicians

August 28, 2014

Here are five things that physicians can do to mitigate the risk of not only frivolous suits, but legitimate ones.

Personal injury attorneys have a powerful lobby, making sensible tort reform difficult legislation to pass on both state and federal levels.

There are compelling arguments on all sides.

Trial attorneys argue that people who are injured as a result of physician negligence or mistakes deserve to receive the resources needed to cover added treatment, and bad doctors need to be punished.

Physicians and malpractice insurers argue that aggressive advertising by trial attorneys invites frivolous claims making most malpractice claims more like winning lottery tickets, unfairly damaging their reputations and robbing resources from patient care.

Healthcare economists argue that defensive medicine, estimated to cost between $180 and $780 billion per year, is a leading contributor to the high cost of care. The latest Great American Physician Survey, by Physicians Practice and sponsored by Kareo, found that 57% of respondents said they ordered procedures or tests they knew were not medically necessary just to avoid a potential lawsuit.

Healthcare advocates argue that the risk of medically unnecessary procedures, diagnostics, and hospitalizations ordered to mitigate risk and second-guessing is wasteful and harmful.

Patients are the wild cards. I remember a news report citing a survey showing that  three percent of Americans think the best way to get rich is to win the lottery or sue someone. That means 97 percent almost always make emotional decisions to sue.

Given these factors, at least for now, tort laws are more likely than not frozen into place.

Mistakes will be made; it's simply a fact of life. Lawsuits, however, do not have to be. Here are five things that physicians can do to mitigate the risk of not only frivolous suits, but legitimate ones:

1. Report negative incidents to your malpractice carrier promptly. It is in their best interest, and yours, to get the facts when they are fresh and to provide time to determine the best course of action. With the preponderance of suits charged with emotion, people who perceive they have been damaged get angrier over time.

2. Never, ever try to cover things up. The overwhelming probability is that you will be caught, and the outcome from that is never good.

3. Fess up and be candid and honest with the affected patient, their family and caregivers. The best course of action is to present the facts and say "I'm sorry, I did my best."

4. Ensure that a relationship is developed with each patient, not only in the exam room, which is the easy part, but with every member of your staff who comes in contact with patients in any way. Providing good, caring service at every level is the essence of healthcare. It is also the essence of human nature not to sue people that you like.

5. Document, document, document. EHRs make it easy, but there is a trap in canned documentation. Personalize your records to each patient. Using best practices is your best defense, but only if there is a record.

Yes, these are simple, common sense actions. They are fundamentals; blocking and tackling, basics. They are also the best protection for you and your patients.