ATLANTA — Being sued for medical malpractice is almost as inevitable as death and taxes. But taking the time to establish good communication with patients and their families may afford the best protection against a lawsuit, Dr. Robert A. Mendelson said at the annual meeting of the American Academy of Pediatrics.
“Try never to appear rushed, talk to your patients, answer all their questions, and explain to them the reasons for any poor results. If the family feels that you truly care about them and that you are sincerely interested in their child's well-being, the chances are good that they will forego a lawsuit, should something untoward happen,” he said. “These are some of the most powerful things we can do to make our practices less vulnerable to successful lawsuits.”
Dr. Mendelson, of a group practice in Portland, Ore., suggested informing patients about worst case scenarios before starting any therapy. “With any procedure or treatment, bad things can happen. If you explain this up- front to patients, and have written proof that you have done so, it can be very powerful in court.”
Effective risk management starts with recognition of the risk exposures in your practice, Dr. Mendelson said. Among the biggest offenders are illegible handwriting and incomplete or sloppy documentation. “If it's not written in the record, it didn't happen. Write everything that you do in the chart or in the electronic medical record.”
Failure to diagnose certain conditions—such as meningitis, neonatal problems, appendicitis, and congenital deafness and cataracts—is a leading cause of law suits. Medication errors also are common causes, he said.
Patients sue their doctors for many reasons, he continued. They include:
▸ Anger.
▸ Revenge, usually due to poor communication.
▸ True monetary needs, such as those that arise when a child is facing very expensive long-term care.
▸ Guilt or misplaced blame: “If I had just taken my child to the doctor earlier.”
▸ Comments from relatives and other professionals: “Your doctor did what?”
▸ Greed, in a minority of cases.
Many physicians are sued, but few actually go to court. Most neonatal intensive care unit physicians will be sued if they practice long enough; 30% of American Academy of Pediatrics members, 10% of pediatric residents, and 80% of American College of Obstetricians and Gynecologists members will be sued at some time in their career. However, 60%–70% of all lawsuits are dropped or settled before they get to court, Dr. Mendelson said.
The average cost for defending a case is $34,000, but the highest costs are often emotional, he added. “There [are] the long time frame, the time lost from work due to worry, assisting your defense, dealing with lawyers—these are all draining. Be available as a support to your unfortunate colleagues (if necessary), even though you cannot discuss the medical aspects of their case with them. It's an intensely stressful process to go through.”
Document to Minimize Your Legal Risk
▸ Every word on every chart should be legible. Typed is best.
▸ Consider using voice recognition software to speed up the process of documenting your actions.
▸ If you thought of a treatment strategy but did not use it, document why you made that decision.
▸ Never alter a medical record. If you do have to make a change, cross it out with a single line so that it is still legible; initial and date the change. Erasures can put the entire medical record in jeopardy.
▸ To change an electronic medical record (EMR), make an addendum on it.
▸ If there has been a bad outcome, dictate a detailed narrative as soon as possible. Date and time the dictation accurately, and consider notifying your insurance carrier if you feel vulnerable.
▸ Initial all lab and imaging studies and correspondence before placing them in the chart.
Source: Dr. Mendelson