Malpractice: What Makes You Vulnerable?


Few physicians would dispute the fact that America has a medical malpractice crisis. Similarly, most physicians cannot fathom leaving themselves and their practices open to litigation. The fact...

Few physicians would dispute the fact that America has a medical malpractice crisis. Similarly, most physicians cannot fathom leaving themselves and their practices open to litigation. The fact remains, however, that no medical specialty is safe from lawsuits. In fact, New Jersey saw nearly 1,500 medical malpractice suits in 2004. A lawsuit’s repercussions are often far-reaching: regardless of a case’s outcome, litigation stress can have a devastating effect on a physician’s practice and family life. “Dissecting medical malpractice cases down to the core allegations against physicians reveals common liability threads and helps us teach physicians where they are vulnerable,” said Robert B. Goley, vice president, Claims Administration and Risk Management, MDAdvantage. “Our focus on reducing vulnerabilities helps physicians provide quality patient care, protect their assets, and avoid lawsuits.” According to Jim Sharp, an attorney with Sharp & Brown, LLP in New Jersey, prevention measures are in order. “A family physician writes a prescription for a patient she hasn’t seen recently. A surgeon proceeds without informed consent. An internist doesn’t check incoming labs, and doesn’t follow-up with a patient. Physicians read these cases, and say ‘not me!’ But law journals are filled with cases that might have been avoided.” A typical medical malpractice case is often linked to one of four areas: failure to track results, incomplete documentation, failure to render appropriate clinical treatment, and poor communication. Compounding the problem, all four issues are often related. For example, a patient’s receipt of the wrong medication is often related to incomplete documentation, clinical responsibility, and poor communication.

Track Results, Follow Up

It’s not enough to recommend further testing or refer patients to specialists. Physicians must follow-up every test, outside treatment, and referral, and they must contact the patient as necessary. “Realizing you need to bring in a specialist, or requesting labs or tests, does not relieve your obligation to the patient,” Sharp stated. “Courts expect the referring physician to have follow-through protocols.” Consider a scenario where a family physician sees a patient experiencing dizziness. The doctor refers the patient to a specialist, but the patient never goes. Two weeks later, the patient suffers a stroke. Because the physician failed to follow-up with the patient and the specialist, and because she had no evidence to support her referral, the physician may be liable. Sharp says failing to track, review, and communicate test and lab results can have devastating consequences for the patient and the physician. Consider a physician who orders a PSA test during a physical. The office receives the results—which are abnormal—and places them in the patient’s chart. However, the physician doesn’t see the results until the patient’s next physical a year later. By then, the patient has advanced prostate cancer and holds the physician liable for failure to monitor test results. Had the physician reviewed the test results, cancer may have been diagnosed sooner; treatments could have started sooner, and the physician would minimize his vulnerability.

Maintain Complete and Accurate Documentation

Physicians are expected to make sound decisions and render excellent care in a technical, fast-paced environment. If the physician is sued, the only way to prove proper care was rendered is by being armed with thorough documentation. “From a jury’s perspective, if it’s not documented, it didn’t happen. Every contact and conversation must be in the patient’s record,” Goley explained. In a hypothetical scenario, if an internist fills a new ulcer medication for a patient she hasn’t seen in more than a year just because she had treated the patient’s ulcers before, she may be liable for the outcome for not doing an appropriate workup. If the physician sees the patient 12 months later and discovers stomach cancer, the patient may sue for a delay in diagnosis.

Communicate Well

Poor handwriting is a stereotype associated with physicians. Being rushed or simply having sloppy writing can result in catastrophic mistakes. “I can’t emphasize enough; penmanship is an issue. Juries side with patients when medical professionals misread instructions. Because of bad handwriting, patients have been administered wrong medications or inappropriate tests with dire results,” Sharp said, citing a recent award to a Texas woman whose husband died from taking the wrong prescription. His pharmacist couldn’t decipher the physician’s handwriting, and the physician was held liable. Yet penmanship is just one communication aspect. There must be clear and consistent communication between a patient’s various doctors; ideally, one of the treating physicians should be the “gatekeeper.” For example, in emergency situations, communication between residents, attendings, primary physicians, and specialists can mean the difference between life and death. Case in point: suppose a neurologist orders a specific antibiotic to treat a fast-moving bacterial infection and then transfers the patient to a specialty hospital. It is incumbent upon the specialty hospital medical staff to consult with the neurologist before altering treatment. If a resident or attending changes treatment plans, and the patient develops complications or dies, any and all treating physicians could be sued.

Get Written Consent

Obtaining a patient’s written consent for treatment is a critical step to avoiding a malpractice lawsuit. For example, consider a breast surgeon who determines a lumpectomy is indicated, but during surgery determines a mastectomy is required. He needs an informed consent form to document the patient understood the treatment and potential for more extensive surgery. Without the form, the patient can claim she was never informed about the potential mastectomy and was not given other options. Even when the hospital has a consent form, the physician is vulnerable to being sued, especially if his notes and records do not document treatment discussions. “Discussing treatment options with patients is just the start,” Sharp said. “An informed consent form, supplemented by the physician’s written notation in the patient’s record, is a physician’s proof the conversation took place and the patient understood the treatment, including potential risks. Every physician must make sure the patient’s medical records include an informed consent form. If the procedure is performed elsewhere, a second informed consent from the treating facility is also required.”

An Ounce of Prevention

Goley says physicians can minimize risks by paying special attention to the four areas that make physicians vulnerable. “Doctors need to track results, thoroughly document, render appropriate treatments within their specialty, and communicate,” he said. To address these areas, physicians must develop and maintain treatment protocols and procedures. That means documenting communication plans, patient follow-up plans, testing follow-up procedures, and referral procedures. Additionally, physicians must write—or type—all directions, referrals, recommendations, prescriptions, etc in a clear and legible manner. Documentation applies to every communication, including phone calls with the patient (or the patient’s family), office visits, outpatient and hospital visits, suggested treatments and consultations, treatments administered, informed consent forms, prescriptions, patient compliance level, follow-up contact, and patients’ comments relating to recommendations and treatments. “Requiring an office visit, regardless of a patient’s objections, is a simple way to help safeguard the practice,” Goley added. An office visit should be required to diagnose, to prescribe or renew medications, and to monitor a patient’s progress. “Contacting non-compliant patients should be standard operating procedure,” he said. Keeping a watchful eye on these four areas of vulnerability can help physicians minimize risks, avoid claims, and concentrate on what matters most: providing high-quality patient care.

Patricia A. Costante, chairman and CEO of MDAdvantage, a leading medical professional liability insurance provider, has broad experience in the medical malpractice arena and in strategic managed care planning and clinical program development. She holds an MBA, an MSW in Healthcare, and a post-Master certification in Human Services Administration. She is a Fellow of the American College of Health Executives, a Diplomate of the American Association of Healthcare Consultants, and a Certified Healthcare Consultant.

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