How to Avoid Medical Malpractice Suit

Dr. Alia Al-Alawi

The Internet age has led to more informed patients who are assertive of their legal rights and are also more willing to sue for any perceived sub-standard care

• Fear of lawsuits changed the way doctors practice medicine

• Defensive medicine• Psychological burden on physicians

• Chance of being sued 1 in 5• Avoid medical error best way to avoid law suit• 70% of adverse outcomes are preventable

Medical malpractice-definition

Medical malpractice: Deviation from standard of care

Standard of care: What a reasonably prudent medical provider would or would not have done under the same or similar circumstances

Medical malpractice-definition

• Doctor not reasonably skilful or competent• Patient harmed with this incompetence

Medical malpractice-legal elements

1.Professional duty owed to the patient

2.Breach of such duty

3.Injury caused by the breach

4.Resulting damages

Basic requirements for claim• A doctor-patient relationship existed• The doctor was negligent• The doctor’s negligence caused injury• The injury led to specific damages

• Physical pain• Mental anguish• Additional medical bills• Lost work and lost earning capacity

Medical malpractice- common types

• Failure to diagnose• Improper treatment • Failure to warn a patient of a known risk

Medical negligence-diagnosis

• Did the doctor act competently• What the doctor did or did not do in arriving

at the diagnosis• Differential diagnosis method used by the

doctor

Medical negligence- diagnosis

Doctor will be considered negligent if:• Correct diagnosis wasn’t included in D.D.• Correct diagnosis was included but doctor

failed to perform test or seek help of other specialists

Diagnostic mistakes• Wrong diagnosis• Missed diagnosis• Delayed diagnosis• Failure to identify complications• Failure to diagnose related disease• Failure to diagnose unrelated disease

How to avoid lawsuit

• Communicate• Document• System

Listen to the patient, he’s telling you the diagnosis

Sir William Osler 1904

Why listen

• 20-60% of lawsuits linked to ineffective communication

• Listening increases patient satisfaction• Errors occur when physicians don’t stop and

listen and instead rely on battery of tests

Hazards of not listening

• When clinicians lack communication skills− Ability to gather information compromised− Failure to engage patients in their own care− Order of wasteful tests or treatments− More likely to be involved in malpractice claims

No time to care

• 68% of residents spent more than 4 hours daily on documentation

• < 40% spent that much time in direct contact with patients

Arch Intern Med 2010

Communication

• Breakdown at times• 80% forgotten• Half of remaining 20% remembered correctly

• 2509 closed claims from 2007 to 2012• communication a factor in 21% of all the cases

Role of empathy

Physicians with high empathy scores• Higher rate of favorable clinical outcome• Contribute to patients satisfaction, trust,

compliance

Hojat, Jefferson medical college

Who is not being suedPhysicians who

– Orient the patient to the process– Encourage patients to tell their stories– Ask patients their opinion– Let patients know they are listening– Use humor and laugh– Have slightly longer visits

Levinson et al. JAMA, 1997;277

Who is not being suedPhysicians who

– Orient the patient to the process– Encourage patients to tell their stories– Ask patients their opinion– Let patients know they are listening– Use humor and laugh– Have slightly longer visits

Levinson et al. JAMA 1997;277

Avoid asking the patient yes-or-no questions

What comes around goes around

Do not speak ill of your colleagues

Beware of sirens

• Flattery• Comparison to “Incompetent physicians”

Disclosure/ Apology

An appropriate, well crafted timely apology is just one part of effective disclosure discussion, but often the most meaningful to the patient and family

Challenging patient• Don’t argue• Remove away from audience• Find out what patient actually expect from you• Clarify expectations

If doctors are consistent with apologizing for small things

• I’m sorry you had to wait today• I’m sorry the injection hurts more this time• I’m sorry you are having more pain from your

arthritis

It will be easier to say I’m sorry for a more significant occurrence

No one size fits all

• Empathetic apology• Admission apology

Do not disclose

• Self critical analysis• Peer review activities• Disciplinary action• Your opinion that someone else is at fault

Failure to follow up test results

• 75% of physicians didn’t routinely notify patients of normal test results

• 33% didn’t always notify patients of abnormal test results

Avoid traditional “No news is good news”

How to avoid lawsuit

• Communicate• Document• System

Medical record

• Method of clinical communication and care planning among physicians and health care providers

• Protection of legal interest of patient, health care providers and the facility

• Bases for evaluating quality of care• Clinical data for research and education

Medical record

• After patient’s care is completed, the only evidence that remains of what occurred takes the form of word descriptions written into the medical record

• These word descriptions will be used to reconstruct the pattern of care

Medical record

• Accurate• Credible• Professional• Present a clear picture of events• Document the thought process for the plan of

care

Medical record- Credibility

• Timely and accurate documentation• Damage credibility:

– Destroy Record– Rewrite record

Medical record

Document what you did not do• Algorithms and standard of care for diagnosis

and treatment

Document missed or cancelled appointments

Medical record

Do not speak ill of the patient

How to avoid lawsuit

• Communicate• Document• System

It’s not all about the Doctor

Law suits come about solely owing to physician’s error

Medical Error- A Team Effort

• The staff are the first face of practice that the patient sees

• Patients evaluate doctors competence and level of caring as a physician far differently than the physicians themselves do

Patients lack medical knowledge

• Did I get better?• Do they care about me? • Did the doctor and staff project confidence?

Why do patients sue?

• Anger• Dissatisfaction with their treatment• Want answers but no one will talk to them• Unhappy with the staff or provider attitude• Want revenge or retaliation• Entitlement attitude

• Put in place a tracking system for test results• Don't allow the patient to sign a consent form

if he or she still has questions for the doctor• waiting room hospitality• Give patient satisfaction surveys, asking about

every aspect of their appointment and visit• Pay attention to the "challenging patient”

Waiting room hospitality

• Assign staff member• Monitor wait times• Inform patients of expected long waits• Make sure waiting room experience is

comfortable• Current reading material• Comfortable temperature• Water, tea and coffee

Satisfaction survey

• Doctors with most satisfied patients had least lawsuits

• Doctors with middle group of patient satisfaction- 26% more lawsuits

• Doctors with least satisfied patients -110% more lawsuits

Perfection not possible• For every medical intervention there is an

expected outcome. But there is also the possibility of unintended consequences

• While it is comforting to believe that modern science can perform miracles, the reality is that human bodies often react in unpredictable ways- even when the treatment is standardized and evidence based

Not every adverse outcome involves an error but every unexpected outcome warrants an explanation

– Unanticipated outcome without error– Unanticipated but known complication not timely

diagnosed– Unanticipated outcome with medical error

Risk management highlights

• Communicate, Communicate, Communicate• Document, Document, Document• System, System, System

Advice from other doctors

• Follow up even when you think you don’t have to

• Practice more defensive medicine• Document more often, more thoroughly• Get rid of rude, demanding, non-compliant

patients