Malpractice Survival Kit: Protecting Your Life and Livelihood

Physician's Money Digest, March 2007, Volume 14, Issue 3

Malpractice. It looms over every medical practice andeven the most conscientious doctor shutters at thethought of it. It only takes one mistake, one disgruntledpatient, or one unfortunate outcome to destroy adoctor's livelihood.

"As a physician, you go through a very arduous,long, training process, you work long hours, you workhard to stay current, you give it your best shot withevery patient, knowing that in the end everyone diesanyway," says Richard Roberts, MD, JD, a physicianat the University of Wisconsin School of Medicine andPublic Health in the department of family medicine.

Dr. Roberts' bleak portrait of the medical professionhits home with those who have dedicated themselvesto medicine, only to find their good works forgottenand records blemished after a malpractice suit.Dr. Roberts cites a study of 220 physicians fromCook County, Ill, who had fought medical liabilitycases. He said that half of those physicians stoppedseeing certain patients, half stopped performing certainsurgeries, 90% suffered physically or emotionally,and 10% seriously contemplated suicide—and all thesuits were either dropped or won.

While physicians' reflexive response to the issue ofmalpractice is tort reform, it is more important for theindividual doctor to focus on what they can do to protectthemselves under the current system. It's all aboutrisk management. "Risk management is a strategy tofirst reduce injury. Second, if an injury occurs, reducethe likelihood of a claim being filed. And third, if aclaim is filed, reduce the size of the possible order ofjudgment," Dr. Roberts says. Of course, the goal is totake steps to avoid the malpractice potential altogether.

Anticipating It from All Angles

The first step to reducing injury is utilizing a reflectivepractice style. The ability to combine self-awarenesswith being proactive gives physicians the tools tosimplify and clarify issues.

"It is a frame shift," Dr. Roberts says. "It's notblaming the doc or the patient; it's just trying to thinkabout this in an anticipatory way, a preventive way, sothat the injury doesn't happen in the first place."

About two thirds of medical errors are systemerrors (eg, communication breakdowns, technologyfailures, and competencies, etc), not negligence. "Wehave the most complex health system in the worldand, unfortunately, we pay for that in lives and indollars every day," Dr. Roberts says. Examine yourpractice to find its weaknesses.

For example, many people want to go to an armyof specialists and feel that having more medical personnelinvolved in their care is a good thing.Unfortunately, that's not the case. Every time a patientdoubles the number of people involved in the processof care they quadruple the number of potential errors.

As a result, physicians should create a more systematicenvironment, developing procedures in theirpractice that make it less likely for abnormal testresults, for example, to fall through the cracks. "Inour practice, if a lab or x-ray report gets filed withouta physician signing to indicate that he or she hasseen it, that's one of the few times our employees canlose their job," Dr. Roberts says. "We take it veryseriously, and our employees take it very seriously."

Developing systems in your practice will helpensure that information is never missing, andabnormal results are communicated to those whoneed to know.

Communication Is Vital

Many believe that lawsuits are used by patients topunish the doctor or to make money from a trivialinjury. This is rarely the case. The vast majority ofpatients who sue have seriously bad outcomes—lessthan 5% are said to have only minor injuries.However, that other 95% hasn't necessarily had badoutcomes due to a mistake or negligence either.

"It's not that these people are suing becausethey're looking to make money off of trivialstuff. What drives them over the edge manytimes to going in to see the lawyer is a sense offeeling that their needs weren't attended to, thatthey weren't heard, that nobody seemed to care," Dr. Roberts says.

The following communication technique knownas BATHE was developed by Joseph A. LiebermanIII, MD, MPH, and Marian R. Stuart, PhD, tohelp physicians efficiently communicate:

Background. "Tell me what's happening."

Affect. "How is it affecting you?"

Troubling. "What troubles you the most?"

Handling. "How are you handling the situation?"

Empathic. Let them know that you care.

This very simple approach to patient interactionhelps doctors focus on the key elements of an officevisit. It reminds physicians of the human elementinvolved—a person is suffering and has come tothem for help.

Nice Doctors Get Sued Less

There are studies that show that the longer youspend with a patient the less likely you are to be sued,but more important than time, is your ability to showconcern, empathy, and likability with patients.

Most patients get 17 seconds before they're interrupted.Time studies have shown that the total lengthof a visit is shorter if you let a patient tell you whatthey feel they need to get off their chest. "The averagepatient will run out of gas within about 90 to 120 seconds,and then you can ask your more precise narrowingquestions, to get at the points you need to get at,"Dr. Roberts says.

Time studies have also shown that allowing yourpatient to fully explain their concerns is a more efficientway of interacting with your patient, and muchmore satisfying for the patient because they feel likethey've been able to tell their story without beinginterrupted. Projecting your concern to your patientslets them know that you have time for them, and areconcerned about their welfare.

"An elegant little study showed that when physicianssat at the bedside they spent a minute less thanif they stood at the bedside talking with the patient—yet the patient perceived that the sitting doctor waswith them almost twice as long," Dr. Roberts adds.

Be Aware of Red Flags

The task of billing can provide a little knownbarometer for your patient's level of contentment.Usually, if a patient hasn't paid their bill, the physician'soffice will send a letter to the patient. Then a secondmore intense letter will be sent to patients who continueto be delinquent. And finally, a third letter may besent that notifies the patient that the office will be sendingthe debt to collections. Dr. Roberts recommendsholding off on that third letter, "I have a rule in ourpractice that before that third letter goes out, I want tocall the patient." Dr. Roberts says many times thepatient may say, "well, the receptionist was mean tome" or "the nurse did this" or "you said that, doc."

"Sometimes I'll apologize; sometimes I'll waivethe bill. But, that's their last chance to complainbefore a lawsuit, so view it as a warning signal andpay attention; it may save you some grief later," Dr.Roberts advises.

Focus on What's in Front of You

The growing fear of a malpractice suit has madesome physicians paranoid. More unnecessary testsand surgeries have been performed. But tests and surgerieshave the potential to do harm too. For everyobstetrician who does a c-section because they areworried about being sued for a vaginal delivery,another obstetrician worries about being sued for anunnecessary c-section.

Maintaining your focus on the patient and whatyou think is the best intervention, diagnosis, andtreatment is the most you can strive for as a physician."If you spend all your time as a doc runningdown the hall looking over your shoulder at the possiblelawyer behind you, you're going to run into thewall ahead of you," Dr. Roberts warns.

Taking a more reflective approach to running yourpractice—stepping back and examining the processas a whole—will give you the perspective you needto minimize the potential for bad outcomes andunhappy patients, and may just make you a betterdoctor.

Protect or Perish: Avoiding Financial Devastation

A malpractice suit cannot only reduce a physician'sfuture ability to make a living in medicine, but canalso devastate earned and invested assets. Therefore,developing an asset protection plan is vital to survival.Keep in mind, however, the planning involved in assetprotection is a highly complex area in which multipleoverlapping bodies of law create both financial opportunitiesand traps.

There Is a Fine Line

"Asset protection for the sake of asset protection isfrowned upon by some courts, and could be overturned," says David K. Sebastian, CFP®, CRPC, CRPS,founder of the Physician's Wealth Management Group inParsippany, NJ. "So the goal for physicians should be tocreate a plan to accomplish legitimate client objectivesthat, as a side benefit, has asset protection features."

Assuming that the physician has no knowledge of anyactual claim that might be made, Sebastian recommendsmeeting with a specialized wealth manager who has afiduciary responsibility to the client. "Working with thisadvisor, they can devise an overall strategy to encompassall aspects of the physician's wealth."

Can You Trust Offshore Trusts?

In the minds of some, an offshore protection strategyconjures up images of sunny beaches, exotic locales, andbanks serving as veritable hidden treasure chests. Thereality is that offshore trusts can be a legal minefield ifnot handled properly, and require a bit of sacrifice on thepart of the investor.

"Assuming that the physician is willing to transferabsolute control over the assets to strangers in a foreigncountry, to pay high legal setup and maintenance costs,and to be completely straight with the IRS about the existenceof the trust and related income taxes, it is one wayto go," Sebastian says. "You can trust Swiss banks. But,there is a great deal of legal shenanigans and tax evasionwith these entities on our side of the ocean, and USjudges sometimes put people in jail to force them torepatriate the money."

He advises physicians against putting more than 20%of their assets offshore for asset protection reasons."And never do it by buying an advertised product. Thereis no magic elixir," he says.

At a physician's level of wealth, "estate planning,asset protection, and investing are essentially the samesubject. They should function seamlessly," Sebastiansays. "Planning is best done by a team of experts workingtogether."

And if you're dragging your heels when it comes toasset protection? "Doctor, you are too smart to be makingthis dumb mistake," Sebastian says. Taking the necessaryprecautions outside of the office is just as importantas the ones you take inside the office. Remember,asset protection is useless after the fact.

Basic Malpractice Crash Course

The following are basic malpracticestrategies suggestedby Dr. Richard Roberts that can beeasily integrated within your medicalpractice.

•Keep detailed medical records.Documentation can make orbreak a malpractice suit. Manydefense lawyers will tell you thatupwards of 33% to 40% of suitsare lost simply because there's apoor medical record.

•Reduce prescribing errors. Prescribingerrors tend to comprise less than10% to 15% of overall lawsuits. Somemedicines are more hazardous than others;take extra care with these. Develop a clearstrategy that doesn't allow patients to fallthrough the cracks. And make use of informativehandouts.

•Avoid handwriting uncertainty. Whether it's bydictating a record and having it transcribed on paper orusing an electronic medical record, physicians shouldbe moving toward integrating technology. For thosewho are still handwriting their prescriptions, it's commonto have them misread. Electronic records withelectronic prescribing can go a long way towardimproving safety.

•Beware of telemedicine. The benefits and risksof telemedicine have yet to be defined. It can, in fact,be a double-edged sword. Telemedicine improvesaccess, but can prevent a doctor from obtaining completeinformation.

•Failure to diagnose. The number one reason adoctor gets sued is for failure to diagnose. Be awarethat it is the common diagnoses that physicians getsued for—failure to diagnose heart attacks, etc.

•Informed consent issues. Usually if a patient hassued for lack of informed consent and that's the onlyissue, it's a weak case. You can't document every possibleword you say to people. Focus on the vital information,including likely outcomes and side effects.

•Fessing up reduces costs. A couple of studieshave shown that while more claims may be made,being extremely honest may reduce the overall cost ofmalpractice in the end.

The Basics of Asset Protection

The objective of good asset protection is to makevulnerable assets unattractive to a claimant, literallymaking them more trouble to get than they are worth.The following are some asset protection basics as recommendedby David K. Sebastian, CFP®, CRPC, CRPS:

•Get expert advice from a wealth manager and anattorney who each specialize in asset protection.

•Share ownership of your primary residence jointlywith your spouse.

•Set up multiowner corporations to own otherassets, with each having a business purpose, such asa real estate investment or investment in securities. Acreditor can get a judgment against this entity but willnot likely be able to collect on it as a practical matter.Ideally, the owner can settle the judgment for pennieson the dollar. Sebastian calls this one, "Don't stackgold bars on the front lawn."

•Physicians are subject to tort and personal liabilityclaims related to business site accidents, vehicles,watercraft, teenagers, etc, the same as everyone else.Get an umbrella policy from your homeowner's insurancecompany, and review all your property and casualtycoverage.

•The assets in qualified pension plans—your401(k) or 403(b), your defined-benefit plan, your SEPIRA, etc—are generally exempt from creditor claimsunder state laws and federal ERISA laws. "Assets inIRAs and rollover IRAs are generally exempt understate laws. It makes great sense to maximize theseassets," Sebastian recommends.

•Life insurance death benefits and cash value arealso generally exempt from the owner/insured's creditorsexisting on the maturity date.

Top Ten Mistakes Physicians Make when It Comes to Malpractice

The following are the most common mistakes physiciansmake before and after a malpractice lawsuit has surfaced,according to Vincent J. Montell and James C. Goodwin,partners at Bowman and Brooke LLP, Phoenix, Ariz:

1) Continuing to provide routine, nonemergent care,to difficult or noncompliant patients.

2) Calling a patient to "talk them out of" the claim orlawsuit just filed.

3) Making entries in, or revising, the medical chart forreasons other than medical care (ie, editing a chartfor litigation purposes).

4) Practicing medicine without malpractice insurance.

5) Not reading the malpractice insurance policy to makesure they understand their reporting obligations whenconfronted with a potential malpractice lawsuit.

6) Automatically blaming other health care providersfor poor outcomes instead of recognizing that pooroutcomes can simply happen, even when everyonehas provided reasonable care.

7) Refusing to consent to a settlement in a case theywill most likely lose, or insisting on settling a casethey really should win.

8) Believing that the physician is the "captain of theship" and is thus responsible for poor care providedby others not under their control.

9) Failing to retain records.

10) Not taking an active role in defending the case.

A Historical Perspective on Liability

While malpractice may behogging the headlinestoday, it has long been anemesis of physicians. Casereports from the Civil War relatesurgeons refusing to do proceduresbecause they were afraid of being sued."This has been a long time issue," Dr.Roberts says. "In fact you can find in TheCode of Hammurabi back in Babylon, in about1500 BC, one injunctionthat says that if aphysician put a patient'seye out, the surgeonwould have his handcut off." That maysound like pretty harshdiscipline, but it wasactually an improvementover previouspunishments,where if the surgeonput the patient'seye out, thefamily members wouldkill the surgeon.