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Five strategies to avoid a malpractice suit no matter where a physician practices medicine.
The amount of money physicians will pay for medical malpractice insurance and the likelihood of being sued are largely determined by where they choose to practice. For instance, malpractice insurance rates are based on how much is paid out in each state territory (most states have multiple territories) for each medical specialty.
“The more likely there are to be malpractice payouts in a territory, the higher the cost of medical malpractice insurance in that state territory,” says Mike Matray, editor, Medical Liability Monitor, based in Chicago. “A physician’s malpractice insurance rate will increase depending on the number of claims against him or her. The (rate) amount can decrease if a physician is claim free and has taken risk management courses that medical malpractice insurers offer.”
Malpractice insurance rates are also heavily based upon a state’s tort reform laws, which vary among states and generally make it more difficult for a patient to sue a doctor. For example, before going to court states such as Pennsylvania, New Jersey, Delaware, and Michigan, among others, require a certificate of merit, whereby a doctor in the same specialty as the physician being sued indicates what the physician did as grounds for malpractice. “If the patient can’t get a doctor to write a certificate of merit, the court case can’t proceed,” Matray says.
Another example of tort reform involves medical review panels that are used in some states, such as Massachusetts, Hawaii, Indiana, and Kentucky. Before patients can access the legal system, a panel that is usually comprised of two doctors and an attorney will evaluate their claim. The panel will review the case and give their opinion on whether or not malpractice occurred. If they believe the case has merit, it will proceed to court. If not, the suit can still proceed, but the panel’s opinion is admissible as evidence for the defense at trial.
Statutes of limitation, which state the timeframe that a suit can be filed, also play a role in how likely physicians are to get sued. “The longer the statute of limitation, the more likely a claim will be made,” Matray says. States with shorter statutes of limitations will generally have lower malpractice insurance costs.
Damage caps set by states are yet another factor that come into play. They refer to the amount patients can win for damages. The lower the cap, the more difficult it will be for patients to find an attorney to take their case because attorneys mostly take medical lawsuits on contingency. Attorneys will front the money to file the case, and if the attorney wins, she will split the amount of the winnings with the patient. “This is a big gamble, because more than 80 percent of defendant physicians win their cases,” Matray says.
Peter Carrazzone, MD, FAAFP, a family physician in Haledon, N.J. and president of the New Jersey Academy of Family Physicians, says 38 percent of states don’t have damage caps on malpractice lawsuits.
A state’s regulations and related complexities are just one more reason why physicians should implement policies and procedures that can help them from getting sued in the first place.
Regardless of what state you practice in, here are some tips from experts on how to avoid malpractice suits:
Establish good relationships
Build a strong physician-patient rapport through open communication and mutual trust. Studies have shown that how physicians communicate can determine whether patients will sue, especially after an adverse event, says Rich Cahill, JD, vice president and associate general counsel for medical malpractice insurer The Doctors Company in Napa, Calif.
Adds Carrazzone, “Take the time to explain in layman’s terms the patient’s diagnosis and plan of care.”
Get everything in writing
When taking on new patients, Cahill advises having patients sign a statement outlining the conditions of treatment and setting forth the practice’s expectations regarding the patients’ responsibilities on proper decorum (e.g., respectful treatment to staff, physicians, patients, and other visitors), payment of fees, cancelling appointments, continuity of care, and follow-up instructions.
In addition, when performing a procedure, get informed consent orally and in writing from patients. By having it in writing, many patients will not sue if an adverse event occurs because they don’t think that they can.
“Make sure you write or type out all possible complications from a procedure and make sure the patient signs it, because it will make it easier for defense counsel to later argue that this was a potential complication the patient consented to before undergoing the procedure,” says Marc A. Brown, partner in the law firm LeClairRyan, based in Alexandria, Va.
Keep accurate documentation
“Plaintiffs always take the position that if something wasn’t written down in the records, then it did not occur,” Brown says. “The opposite is also true. If something is written down, defense counsel will argue successfully that it did take place because otherwise why would it be recorded in the records. Careful documentation has ended a lot of malpractice suits before they have even been filed.”
Brown says medical malpractice plaintiff’s attorneys have told him they often decline to take cases when the doctor’s documentation is good because it is unlikely that the attorney will win the case, even if the damages are huge.
Refer patients when warranted-and follow up
“When you encounter a medical condition that you don’t see frequently, spend time making sure you are current on the condition’s diagnosis and treatment,” Brown says. “Or, refer the patient to a specialist to treat it-especially if it is something serious.”
If you employ physician assistants or nurse practitioners, outline the conditions when these advanced practice providers should refer patients to physicians or seek a second opinion, Cahill adds.
If a condition has the potential for a serious or life-threatening outcome, follow the patient closely and document your actions, Carrazzone says. If a patient does not follow up, send certified letters explaining the risk and potential problems of not doing so.
Wisely choose your malpractice insurer
Physicians should select a medical malpractice insurer with a track record for winning cases, focuses on the interest of physicians over stockholders, is financially sound, and provides advice on how to avoid risks, Cahill says.
In addition, Cahill advises choosing an insurer that can provide an aggressive defense for physicians at all stages of litigation, including both the trial and appellate processes.
Karen Appold is a medical writer based in Pennsylvania.