26 Tips for Avoiding Medical Malpractice

Physician's Money Digest, November30 2003, Volume 10, Issue 22

When it comes to smart practices regardingmedical malpractice liability,the president of the AMA has a lot tosay. As both a physician and an attorney,Dr. Donald J. Palmisano has a unique understandingof medical and legal issues, and haspromised to lead the charge on medicalliability reform for the AMA.

He was a founding member of a physicianprofessional liability insurance company,where he reviewed over 3000 claims andwas responsible for approving attorney submissions tomedical review panels. He also played a key role in thepassage of the Louisiana Medical Malpractice Act of1975, helping to implement state reforms that cappedmedical liability damages.

Dr. Palmisano has long advocated several riskmanagement tips, which he calls the "Big A and 25C's." "These tips are not theoretical," he says. "Eachrepresents a list of physicians, who are like the ancientmariner now—sadder but wiser." The following is asummary of his advice:

The "Big A," Anticipate—Anticipate what could gowrong with therapy or an operation. Be sure that thepatient is informed and be prepared for any complication.Avoid surprises.

The "25 C's"

  1. Competence—The essence of quality medicalcare is a competent physician acting in the patient'sbest interest.
  2. Communication—Effective communication skillsenhance the doctor-patient relationship and decreasethe risk of a suit if results are not optimal or complicationsarise. Never let the patient believe they wereabandoned—even if the patient was referred toanother physician for specialized treatment.
  3. Consent—Failure to obtain informed consentoccupies a high position on the hit parade of recurrentthemes in litigation. A specific communication involvingadequate disclosure must occur between the physicianand patient before treatment. This includesinforming a patient fully about the proposed treatmentor operation, including risks and alternatives.Take heed: Informed-consent laws vary significantlyamong the 50 states.
  4. Compassion—The caring physician who communicatesinterest in the patient's welfare not onlyenhances the doctor-patient relationship, but alsogreatly diminishes the risk of a suit.
  5. Consultations—These are necessary wheneveryou doubt the diagnosis or treatment, or the patientseems either dissatisfied or distrustful.
  6. Chaperone—If you're a male physician, alwayshave a female chaperone present during examinationof a female patient. A sexual familiarity charge is dif-ficult to defend against without a witness.
  7. Confirmation—Medical records are 1 of the mostimportant items in malpractice litigation. Thus, theyshould be complete, accurate, timely, objective, and legible.Avoid subjective comments or name-calling.Imagine the records being published in the newspaper.
  8. Corrections—Incorrect alteration of the record,a recurrent theme in malpractice litigation, is fatal tothe defense since the plaintiff's attorney can allegeconcealment or fraud. If an error is in the record,draw a line through it, date it, and initial it. Thenwrite in the correction. Do not "white it out," cover itup with ink, or tear it out. And never add to therecord after a suit is filed. If you remember something,dictate it in a confidential memo to your attorney.
  9. Caution—Do not boldly go where angels fear totread, unless you have researched carefully and preparedfor the new and innovative therapy.
  10. Contract—Avoid promises. Remember theplastic surgeon who promised to make his patient'sface "a model of harmonious perfection?" The jurylooked at the patient and awarded her damages forbreach of contract.
  11. Common Sense—If a planned treatment doesnot sound correct or if you have uneasiness about it,don't start it blindly. Take the time to research it andobtain another opinion.
  12. Complaints—Be certain you have access topatient complaints and investigate them. Proactiveprotection: It's better to put out a spark of discontentthan to face a raging lawsuit.
  13. Checklist—Keep a checklist of important itemsso you don't forget anything. Use checklists for proceduressuch as getting a patient ready for an operationor admitted to a hospital.
  14. Coordination—Work with other doctors treatingthe patient.
  15. Collections—Avoid harassment.
  16. Calls—Document conversations with and anyadvice given to patients—especially after hours.
  17. Customer—The doctor-patient relationship israrely thought of as a physician treating a customer.However, regarding the patient as a customer youwant to keep happy will decrease the risk of a patientbecoming unhappy and wanting to sue. Of course,keeping patients happy doesn't mean doing somethinginconsistent with quality medical care.
  18. Courage—Don't panic and point fingers if youare sued. Always be honest and give medical opinionsbased on facts, not fear. Consider this: According tothe Physician Insurers Association of America, overall,plaintiffs won a settlement or verdict in just28.3% of all medical liability cases in 2002. Plaintiffslost the majority of their cases that went to a jury. Ofthe 4.9% of claims that went to jury verdict, thedefendant won 80% of the time.
  19. Credentials—Always check the credentials ofyour staff applicants—especially of doctors and nurses.Go to the source: Investigate at medical schools,state medical licensing boards, etc. Do not rely onphotocopies provided by the applicant. Outstandingforgeries are possible today.
  20. Confidentiality—With the enactment of theHealth Insurance Portability and Accountability Act,this becomes even more important than before. It isessential that you and all members of your staff keeppatient communications confidential.
  21. Comments—Avoid critical comments aboutany patient that would embarrass you or the patient ifprinted in a newspaper.
  22. Counsel—Listen to your attorney in a depositionor suit. If your attorney instructs you not toanswer a question, obey. Your expertise is in medicine,not in trial tactics. Insist that your attorneymeet with you several days prior to a deposition. Itis normal to be nervous, but proper preparation willreduce anxiety. If you are uncomfortable with yourlawyer, identify this early and switch to anotherattorney. Insurance companies rarely insist you staywith an attorney if you are uncomfortable. Legalreminder: You always have the right to hire a privateattorney at your expense.
  23. Current—Keep up-to-date with medical knowledge.In the Internet age, there are a variety ofresources at your fingertips.
  24. Cancellation—If you cancel the doctor-patientrelationship, notify the patient and remain availablefor a reasonable period of time to avoid the possibilityof a claim of abandonment.
  25. Calm—Avoid "Type A" behavior (ie, trying todo more things in less time). Rushing and beingstressed can combine to encourage shortcuts anderrors, such as operating on the wrong limb, failing todocument records properly, etc.

Copyright 1993, 1995, 2003 Donald J. Palmisano, MD, JD