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Avoid being a malpractice target - what do we know about why patients sue….

Robert Baldor, MDUMass Medical School

Worcester, MA

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Learning Objectives:

• by the end of the session, you will learn about why patients sue their providers and steps you can take to minimize your risks for such an event.

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Medical mistakes happen

• The human body is complex• Treatments are complex• There are no guarantees in life. …• Most patients don't sue their doctors when

a bad outcome occurs

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PIAA Registry 1985-2008Total Claims1. OB/GYN2. Internal Medicine3. Family Medicine4. General Surgery5. Orthopedics6. Radiology7. Anesthesiology8. Plastic Surgery9. CV Surgery10. Pediatrics

Total Paid1. 3.3 billion2. 1.7 billion3. 1.4 billion4. 1.6 billion5. 1.1 billion6. 0.8 billion7. 0.7 billion8. 0.25 billion9. 0.4 billion10. 0.5 billion

JABFM 2010 5

Why do patients sue?

• Long-term effects on work, social life, family relationships (70%)

• Decision also taken because of insensitive handling, poor communication after incident– Intense emotions felt for a long time

• Explanations often not given– considered unsatisfactory when given (85%)

Lancet. 19946

Four main themes

1. To prevent similar incidents in the future2. Wanted an explanation3. Compensation for actual losses, pain and

suffering or to provide care in the future4. Punishment !!!

Lancet. 1994

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Negligence – a Medical Misadventure…

• The failure to do something which a reasonably prudent person would do under like circumstances

• A departure from what an ordinary reasonable member of the community would do in the same community– not meeting the standard of care

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Malpractice in Primary Care

• Errors in Diagnosis (34% of cases filed)– Acute MI most common (24 % of cases)– Cancer next most common

• Breast (21 %) • Lung (17 %)• Colon (17 %)

– Appendicitis (19 %)

JABFM 2010 9

Rarely a cognitive error alone

• Failure to obtain a through H & P• Failure to order appropriate

diagnostic test • Failure to create an appropriate

F/U plan

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Non-Diagnostic error causes

• Failure to supervise or monitor the case (16 %)• Improper performance (15 %)• Medication errors (8 %)• Failure or delay in referral (4 %)

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Prevention…..So what do you do???

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Step 1 – Documentation….

• Documentation can make or break a case• When problems with records accompany a

negligence claim 2/3rds are paid

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Be thorough & accurate ….

• Medications & allergies• Problem list• Include accurate

– Past Medical History– Family History– Social History

• Health Maintenance Section

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Acute visits

• Incorporate direct patient statements• Be clear, concise, precise

e.g.always note the location of a breast lump

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Vital signs

• Every encounter should include vitals• Include weight

– Note discrepancies, trends• Acute visits need temperatures

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Document Recommended/Ordered Tests

• Claims that a test was never recommended or ordered are common– Record diagnostic and treatment plan– if the patient chooses to disregard your advice, you

have a written defense rather than relying on memory• If unsure about diagnosis, record a list of

possibilities and note they are not definitive

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Partner with your patients......

• Don’t settle for uncertainty….• Ask the patient to schedule a re-check in a

week or two if you are uncertain about a tentative diagnosis

• Document when and why the patient was advised to return

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Document Non-Compliance

• Document when patients don’t comply• Explain risks of non-compliance

– document the specific advice• If refusing a recommended diagnostic or

treatment plan and you believe that a bad outcome could possibly result, have patient sign a statement of refusal

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Make sure your notes are legible!

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Don’t alter entries

Plaintiffs’ attorneys always hope that doctors have altered changed their records because if they can show deliberate cheating changes in the record the case is over.

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Don’t Be Judgmental• Use direct quotes when possible• If the patient smells like alcohol, don’t write that

the patient is drunk. – Describe the smell and the patient’s behavior

• Don’t use exclamation points!!!!!• Charted emotional responses indicate that the

note is probably not as objective as it should be

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Document phone calls

• Calls of any significance should be carefully noted by staff, reviewed and included in record

• After-hours calls need to be recorded, noting advice given– Establish a system to ensure these get recorded– As much as possible, the patient’s own words should

be included in the documentation

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Follow-up

• Failure-to-diagnose cases not only focus on uncertain diagnoses but frequently on lab results or referrals that weren’t followed up properly

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“I wish I had seen this test result earlier”!

• 262 Internist surveyed • 60% expressed dissatisfaction with their

method for handling test results….• Wanted a system to track orders for tests to

completion…..coupled with generation of patient letters

AIM 2004

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Close the loop on test results• Tell patients when & how they will hear result• Tell patients to call if they don’t hear• Document that you ordered the test• Track to ensure that tests results are received• When the results arrive, review, compare with

any previous, sign and file in record

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Make referrals happen

• In high-risk situations, it’s not enough to refer the patient to a specialist and note that you’ve done so in the chart

• Have your staff make the initial call to the specialist’s office to make the appointment

• Document date of the specialty visit

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Records review

• Review chart before the exam• Note if labs or referrals were ordered and

if so the results or lack there of • Review information from other physicians

carefully and record pertinent findings

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Negligent drug treatment

• Another common malpractice claim • Drug allergies and sensitivities should be

prominently displayed in the chart and noted if a new medication is prescribed

• Medication refills should be recorded as well

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Schedule regular follow-ups

• Standard protocols for chronic conditions– Hypertensives & diabetics every 3-4 months– Those on statins every 6 months– Those on NSAIDs, antidepressants, chronic

analgesics, cardiac agents, warfarin or any chronic medication should be seen regularly

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EHR to the rescue???

• Potential drug interactions and allergic cross sensitivities are flagged, but…..

• One poll – 45% override these flags

“The system gives so many red flags that I routinely ignore them … kind of like the little boy who cried wolf”!

JFP 2010 32

Communicate with your coverage

• Especially for patients with high-risk conditions or with uncertain diagnoses

• Let your patients know who is covering

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Mid-level supervision…

• Ensure that your supervision meets state requirements

• Have detailed protocols in place• Available to answer questions immediately

– Face-to-face– Phone– Digital communication

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Procedures

• Malpractice suits that allege “negligent procedure” are another growing are of litigation for primary care physicians

• Ensure adequate follow-up

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Informed Consent• Most common reason other than diagnostic error• A signature on an informed consent from is not

adequate communication. • The statement should note the:

– Procedure – Risks – potential Complications (infection, scarring)– Alternatives have been Explained– That the patient Understood the discussion

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Relationships

• Relationship is the most important prevention for lawsuits

….but don’t ignore documentation

• The common belief that nice doctors get sued less has been documented

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Return calls

• If a mistake happens, the doctor must be available to discuss it with the patient

• An absent doctor or poor service turns patients into angry patients

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Angry patients

• Plaintiff attorneys report the majority of their calls come from patients who had poor rapport with their physicians

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NAIC Severity Index

• Emotional Injury only• Insignificant injury• Temporary injury

– Minor or Major • Permanent injury

– Minor, Significant or Major • Grave injury• Death

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PIAA claims data

Injury type• Emotional Injury only• Insignificant injury• Temporary minor injury

• Grave injury• Death

Percent of claims paid• 13%• 16%• 26%

• 45%• 37%

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Follow up with angry patients

• If a patient leaves angry and/or threatens to switch doctors, have a trusted staff member call and try to find out why the patient is upset

…..or call the patient yourself

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What works in a medical error?

• Show empathy“This must be difficult for you”“I’m sorry that things turned out this way”“How are you coping with things?”

• However, empathy is not an apology…

If appropriate, consider an apology

• Find an appropriate time and place• Get the facts and the right people to attend • Listen to patients understanding/concerns• Describe what happened • Show empathy• Offer an apology and to make things right

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Show your patients that you care

• If you have to keep them waiting, tell them what to expect

• Have your staff explain the reason for the delay and how long they’ll be waiting

• Let patients see your humanity– Mention your family or hobbies– Use humor appropriately

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Give patients your full attention

• Don’t interrupt. Listen carefully, especially when you’re in a hurry

• Sit, don’t stand• Taking phone calls during the exam shows

a lack of respect

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Respect patients’ privacy

• Don’t have your patients wait in a gown before you see them

• If you have to leave the exam room and the patient is undressed, don’t leave the door open or invite others into the room without warning

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Involve patients in decision making

• Present options and ask your patients to help you decide on the best possible course of treatment so they will have ownership in the course of treatment

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Avoid criticizing others

• Criticizing other doctors can give rise to lawsuits• Listen to what the patient says and don’t make a

judgment (you weren’t there)• If you do say something negative and the case

winds up in court, you may be asked to testify against that physician as an uncompensated fact witness

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Consider patient dismissals

• Considerations for dismissal– Noncompliance,– Missed appointments– Long-overdue balances– Difficult patients that you have trouble dealing with

• Discuss with patient– Rather than mailing a certified dismissal letter, hand

them the letter at their next office visit • Document in the chart that It was delivered

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Lousy Service

• Staff service is a part of your doctor-patient relationship

• Bad service, dirty rooms, not returning phone calls are signs of a lack of respect

• Staff members must show the same consideration that you do– your staff represents you to your patients

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Test your practice• Ask patients what they think of your practice

– Use a suggestion box or an informal survey• Have a family member or trusted friend

– Call to make an appointment– Complete a simulated visit

• Feed back to the staff what needs to be done in a supportive manner…..

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The end…..

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