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We continue our look at asset protection for physicians in the context of medical malpractice claims with a look at the causes of medical malpractice claims and thinking defensively about diagnosis and documentation.
In part one of this series we examined issues including which states and specialties are highest paying and highest risk for doctors and where malpractice insurance premiums are trending. In part two we looked at the effects of gender and age in determining how likely you are to face a lawsuit and the trend of malpractice claims getting bigger. Most recently, in part three, I provided details on the (growing) dollar amounts of the settlements and lawsuit verdicts that results in over $4 billion a year being paid out to plaintiffs by American physicians and their insurance carriers.
The first, best rule common to asset protection, risk management and the martial arts is the same; avoid the fight. Every physician should be aware of the most common causes of medical malpractice claims and have a rigid compliance and documentation system that supports every choice they’ve made with special attention to the following. This list comes from the Medscape annual medical malpractice report and is based on a survey of thousands of physicians, this is what the doctors themselves reported.
Other sources have similar reports, but add specifics including childbirth, infection, and anesthesia.
With a third of all malpractice claims centered around failure to diagnose, thorough use of all diagnostic tools reasonably available is vital to protect your patients and yourself. In a previous discussion, I suggested that so called “defensive medicine”—a term embraced, if not coined by, insurance carriers aggrieved by paying for often expensive diagnostic procedures—was both good medicine and good business in terms of risk management for a physician. Very few cases are lost because a physician erred on the side of caution in ordering additional testing that was arguably medically appropriate, including more invasive testing that may be discretionary based on the severity of the patient’s condition.
The key question in most malpractice claims is: “Did you do the right thing?”. The determination as to whether or not your treatment met the prevailing standard of care is made by third party expert witnesses based on a combination of the patient’s history, their medical records, your diagnostics, and the documentation you create of the patient’s diagnosis and treatment. A lack of documentation can be used against you in legal proceeding, especially if it’s something material that you recall doing but failed to note.
EHR systems have certainly helped make the process more uniform and time efficient, especially when it comes to making sure that tests you have ordered have been completed and that the results have been reviewed with the patient. Despite those benefits, as Avery Hurt noted in an article here on Physicians Practice, EHR systems do have their own weaknesses, especially when it comes to the use of standardized responses like clickable boxes and pull-down menus. Experts advise that those input methods are supplemented with personalized notes in free text fields that provide patient specific details. Among the key points in Hurt’s article: