Medical Malpractice/ liability

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W ith medical malpractice insurance premiums

rising sharply across the nation and at least a dozen states facing an insurance crisis, physicians

and policymakers are debating vigorously how best to respond. Tort reforms that would cap awards are among the proposals and have proven effective at moderat- ing premiums in several states. [See “Understanding the Physician Liability Insurance Crisis,” FPM, October 2002, page 47.] But while physicians await legislative action or an upturn in the economy to soften the impact of insurance hikes, there is something doctors can do: better manage risk.

Risk management involves more than just reading a journal article, listening to a lecture or filling out a work- book. It is a style of practice that endeavors, first and foremost, to prevent patient injuries; second, to avoid malpractice claims; and third, when a claim does occur, to reduce malpractice claim losses.

First prevent patient injury A while back, I was involved in the care of a four-year-old boy who was admitted with status asthmaticus. He was very ill, requiring intubation and ventilatory support. ➤

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Dr. Roberts is past president of the AAFP. He served for six years on the Board of Governors of the Wisconsin Patient Compensation Fund and for the past eight years has served on the Board of Directors of the Physician Insurance Company of Wisconsin. He is a professor of family medicine at the University of Wisconsin Medical School and practices in Belleville, Wis. Conflicts of interest: Dr. Roberts discloses that he is a member of the Board of Directors of the Physicians Insurance Company of Wisconsin.

Seven Reasons Family Doctors Get Sued and How to Reduce Your Risk

By adopting a risk-management mind-set, physicians can avert not only malpractice claims but also patient injury.

Richard G. Roberts, MD, JD, FAAFP

Downloaded from the Family Practice Management Web site at www.aafp.org /fpm. Copyright © 2003 American Academy of Family Physicians. For the private, noncommercial use of one individual user of the Web site. All other rights reserved. Contact [email protected] for copyright questions and /or permission requests.

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We were at his bedside literally breath by breath through the night. The child bounced back, fortunately, as children often do, and within three days he was home.

The following week at grand rounds, the senior resident presented the case. I opened the question and answer session that followed by asking the group, “How did we fail this boy?” A long silence ensued. One of the second-year residents responded, “I don’t understand what you’re talking about. You saved this kid’s life. At every turn you made exactly the right decision.”

And I said, “Yes, but how did we fail this boy?”

Finally, a first-year resident raised her hand and offered, “Well, he shouldn’t have been in status asthmaticus in the first place.” And that’s the answer.

One of the things physicians need to ask whenever a patient is admitted to the hospi- tal is “How did the outpatient management fail?” In this instance, should we have spent more time with the child’s mother, empha- sizing how important certain environmental changes were for her son? Was this a medica- tion compliance problem? Develop a routine of reviewing the sequence of care for unex- pected or unwanted outcomes. While we weren’t negligent for anything we had done in the care of this boy – indeed, our hospital care was excellent – we had failed to prevent an avoidable condition, status asthmaticus. Our failure violated rule number one of risk management: prevent patient injury.

Why FPs get sued Patients sue their physicians for many reasons. Here are the seven most common ones for family physicians and tips for avoiding them.

1. Failure to diagnose or a delay in diagnosis. The most common allegation is failure to diagnose in a timely manner; the most common disease for this allega- tion is breast cancer. A frequent reason for a failure or delay in diag- nosis of breast cancer is excessive reliance on a falsely negative mammogram. A palpable lump or breast complaint should be taken to diagnosis. Mammography may be an adequate screen- ing tool, but it is a poor diagnostic tool with false negative rates of 20 percent.

Diagnosis may mean simply following the patient for a month and determining whether the lump resolves with the next menses; or it may require needle aspiration; or it may need excisional biopsy. Whatever it takes, the lesion should be followed to diagnosis.

2. Negligent maternity care practice. Two things that often get family physicians into trouble are 1) the use of oxytocin, espe- cially when a baby is distressed while the physician continues pushing the drug, and 2) the failed handoff. The classic story of the failed handoff is the Friday night catastrophe that occurs while the patient’s usual doctor has gone away for the weekend and the covering physician is inadequately informed and has no prior relationship with the patient. Developing a routine of signing out pregnant patients, especially those near term or with problems, can go a long way toward reducing the risk of a failed handoff. Sign-out need not be in person; voicemail systems and electronic methods can facilitate such communication.

3. Negligent fracture or trauma care. Patients with wrist “sprains” and snuffbox tenderness should be assumed to have navicular, or scaphoid, fractures until proven otherwise. A thumb spica cast is a reasonable approach until symptoms resolve

or later X-rays resolve the question of frac- ture. Another situation to watch for is the patient with a popliteal fossa injury, usually resulting from impact- ing the knee against

the dashboard during a car crash. Check and document that the patient’s distal circu- lation is intact with palpable pedal pulses. Popliteal artery embarrassment can easily go unrecognized, and the limb is placed in jeopardy.

Risk management is a

style of practice that

endeavors, first and

foremost, to prevent

patient injuries and,

second, to avoid mal-

practice claims.

Develop a routine of

reviewing the sequence

of care for unexpected

or unwanted outcomes.

The most common mal-

practice allegation is

failure to diagnose in a

timely manner; the

most common disease

for this allegation is

breast cancer.

Two things that often

get family physicians

into trouble with

obstetrical patients are

the use of oxytocin and

the failed handoff.

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SPEEDBAR®

While we weren’t negligent,

we had failed to prevent an

avoidable condition.

To prevent, first and foremost, patient injuries and,

secondarily, malpractice claims, physicians should:

• Follow their patients’ complaints to full diagnosis,

• Prepare themselves mentally before procedures,

• Know when it’s time to consult with a colleague or

make a referral.

KEY POINTS

Money is not the pri-

mary motivation for

most patients who sue.

Instead, their motives

are to prevent future

incidents, seek out an

explanation and hold

someone accountable.

The number of doctors,

not lawyers, in an area

determines the number

of malpractice suits.

According to the Gen-

eral Accounting Office,

less than 10 percent of

plaintiffs have injuries

that would be regarded

as “insignificant.”

Doctors who are hon-

est and empathetic

toward their patients

have a lower likelihood

of being sued.

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SPEEDBAR®

R I S K R E D U C T I O N

MYTHS ABOUT MALPRACTICE

1 This is a new problem. The first malpractice case recorded in the United

States was Cross v Guthery, a 1794 Connecticut

case in which a man sued his doctor over his

wife’s death following surgery. Since only

appeals court decisions are usually recorded,

the first malpractice case may well have occurred

before the founding of the country. Historical

accounts from the Civil War era document

instances of surgeons refusing to do certain pro-

cedures because of concerns about being sued.

2 The current legal system works well. Some would argue that the United States has the

best legal system in the world. However, if the

goals of the tort system are to make the injured

whole, to punish those who commit negligence

and to deter future negligence by others, then

the current system is not working well.

3 It’s about money. Many doctors believe that patients sue primarily

because of money, but for the vast majority of

patients, money is not the primary motivation.

Instead, patients often sue because they want to

prevent similar incidents from happening in the

future, want an honest and clear explanation as

to how and why the injury occurred and want

the staff or organization to be accountable for

their actions.1

4 The number of lawyers is the root of the problem.

The number of lawyers in an area does not pre-

dict the number of medical malpractice lawsuits.

It is the number of doctors that predicts the num-

ber of suits.2

5 Lawyers decide the standard of care. In every jurisdiction, a lawyer is able to file a

medical malpractice suit only with a statement

from an expert that negligence occurred. That

expert has to be a physician.

6 Frivolous suits are the root of the problem. A General Accounting Office report showed

that less than 10 percent of the time does the

plaintiff have an injury that would be regarded

as “insignificant.”3 In the majority of cases,

plaintiffs have serious problems that no one

would want for themselves or their loved ones.

Whether the bad outcome was the result of

doctors’ negligence may be debatable, but

medical malpractice suits for frivolous reasons

are uncommon.

7 There is nothing one doctor can do. Perhaps the most powerful predictor of the

likelihood of being sued is how well the doctor

relates to patients. The more honest and

empathetic a doctor is, the lower the likelihood

of suit.1

8 Judges and juries favor plaintiffs. In fact, judges and juries generally favor

doctors. In 2000, defendants won 62 percent

of all medical malpractice cases brought before

a jury.4

9 All tort reform is good. Some kinds of tort reform have proven effective,

such as California’s 1975 Medical Injury Compen-

sation Reform Act (MICRA); others have not and,

in fact, may make things worse.

1. Vincent C, Young M, Phillips A. Why do people sue

doctors? A study of patients and relatives taking

legal action. The Lancet. 1994;343:1609-1613.

2. Danzon PM. The frequency and severity of medical

malpractice claims: new evidence. Law Contemp

Probl. 1986;49:58-84.

3. Medical Malpractice: Characteristics of Claims

Closed in 1984. Washington, DC: General Account-

ing Office; 1987.

4. Medical Malpractice: Verdicts, Settlements and

Statistical Analysis. Horsham, Pa: Jury Verdict

Research; 2002.

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4. Failure to consult in a timely manner. I try to follow the rule of three: If I haven’t figured out and corrected a patient’s problem within three visits, I enlist someone to help me. It may be my partner across the hall, a specialist down the road or someone else. Why do I use three as my cutoff? Because it’s as good a number as any, and it keeps me from tem- porizing forever while the patient continues to have problems. In primary care, it can be a challenge to diagnose vague symptoms for early-stage disease at the first visit. By the second visit, the story becomes better clarified. By the third visit, a clear diagnosis and plan should be decided. The main point is to set a plan for diagnosis, treat- ment and expected improvement; when these have not occurred as planned, then get help.

5. Negligent drug treatment. Drug- related iatrogenic injuries cause thousands of hospital admissions each year. Many of these injuries are related to the use of warfarin, perhaps the most dangerous prescription drug in America. Because of the drug’s very narrow therapeutic window, the clinical care team needs to use a protocol to ensure that patients are well educated about using war- farin and are getting their International Normalized Ratios checked regularly. [See “Improving Anticoagulation Management at the Point of Care,” FPM, February 2002, page 35, and “Reducing Risks for Patients Receiving Warfarin,” FPM, July/August 2002, page 35.]

6. Negligent procedures. The most common problem family physicians face with procedures is not that they are doing procedures they were not trained for, but that they find themselves doing procedures when they’re not at their best – when they’re tired or mentally distracted – and then the procedure goes badly. Although this may sound basic, the best way to prevent these types of injuries is to be prepared physically, mentally and emotionally for the procedure. Sleep depravation increases the risk of poor performance. Distractions such as pressing personal problems might be good reasons to reschedule or have another physician per- form the procedure.

7. Failure to obtain informed consent. If failure to obtain informed consent is the only allegation a plaintiff makes, it usually suggests a weak case on the merits, and the physician has a good chance of

winning the claim. Still, it’s best to avoid this risk by docu- menting that discus- sions with patients included expected outcomes, potential risks and reasonable

alternatives to the proposed care plan.

The four Cs of risk management Developing a risk-management style of prac- tice involves four Cs: compassion, commu- nication, competence and charting.

Compassion. When patients do not pay their bills, it may be a signal that they were not happy with their care. Our practice sends three dunning letters to patients who don’t pay. The first letter is fairly mild, the second is more blunt in tone, and the third says, “We’re sending you to a collection agency.” This third letter isn’t sent without the doctor being made aware, and we endeavor to speak personally with the patient before the third letter is sent. It is surprising how often the reason that patients aren’t paying is because they are angry – angry about the way the nurse acted or something the receptionist said. For these patients, not paying the bill may be their last chance to express their dis- pleasure. Take advantage of these risk-man- agement opportunities. Patients appreciate the chance to have their grievances heard and addressed. Once heard, they are often more willing to work out payment terms. At the least, they are usually happier. Happier patients are less likely to sue.

Communication. Physicians practice as part of a care team. Communication across teams can be a challenge. It is sometimes tempting, for example, to engage in jousting in the chart: A nurse writes one observation, a physician notes a conflicting observation, and a consultant offers yet a third observa- tion. Stay away from those kinds of games

To avoid claims alleg-

ing a failure to consult

in a timely manner, the

author recommends

the rule of three: If you

haven’t figured out and

corrected a patient’s

problem within three

visits, enlist help.

Drug-related iatrogenic

injuries cause thou-

sands of hospital

admissions each year,

many related to the use

of warfarin.

Negligent procedures

tend to occur not

because physicians are

doing procedures they

were not trained for,

but because they find

themselves doing pro-

cedures when they’re

not at their best.

Avoid claims of failure

to obtain informed con-

sent by documenting

that your discussions

with patients included

expected outcomes,

potential risks and rea-

sonable alternatives to

the proposed care plan.

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SPEEDBAR®

When patients do not pay their

bills, it may be a signal that they

were not happy with their care.

Compassion

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because no one wins except plaintiff ’s lawyers who seek to divide and conquer. Instead, be honest and open yet discreet with communica- tions, not only with colleagues but with patients and staff as well.

Competence. Physicians are keenly aware of the need to stay up-to-date on the latest evidence and clinical recommenda- tions, yet no one can remember everything that is needed for the care of every patient. Flow sheets, protocols and other tools can reduce the chance that important factors are overlooked. A low threshold for consultation can be enormously helpful when the patient isn’t getting better as quickly as expected

or wanted; when the patient or the patient’s

relative expresses dissatisfaction with the care; when the patient’s presentation is atypical or the diagnosis obscure;

or when the patient is critically ill or dying. Charting. The greatest charting mistake

physicians make is that they fail to note what is important. Often, doctors believe that there is a need to write volumes. Write what’s important. I recall one instance where I dictated a history and physical for a patient with chest pain admitted to rule out myocardial infarction, and the transcriptionist clocked me at 250 words a minute with gusts up to 350. When I later reviewed the transcribed note – and I do read every single transcribed note – I realized I had forgotten to mention anything about the heart! This can happen to anyone, and courts will forgive such clerical mistakes so long as they are detected and correct- ed. We’re not expected to be perfect scribes, but we are expected to be honest and thoughtful in how we approach documentation. Follow these simple rules:

• Be honest. Never go back and surreptitiously alter a record. I was once an expert witness in the case

of a pediatrician car- ing for a child with H. flu meningitis.

The care the pediatrician provided was excellent, but the patient had a terrible outcome and his family sued the physician. Because one

normal white blood cell count result had not been incorporated into the patient’s chart, the physician got nervous and rewrote the entire two years of well-child and other visits to include this white count. The plaintiff ’s lawyer obtained the original records and saw they were all written, with- out a single error, in the same colored ink. The lawyer had the ink analyzed and proved that the ink was not even manufactured until after the patient’s claim had been filed. The physician had a perfectly defensible case but panicked and ruined her credibility. Be honest with record keeping. Recording errors, when they occur, are best managed by a single strike through line that is ini- tialed, dated, timed and identified as an “error.” More extensive or significant errors (e.g., “wrong patient”) may require more detailed explanation.

• Be objective. Write the record as though the patient will read it. For example, avoid adjectives such as “drunk and obnoxious’ to

describe a difficult patient. Instead, use more diplomatic language: “Patient is combative; ethanol-like odor noted.” In this case, the patient may be

in a state of diabetic ketoacidosis, not alco- holic intoxication, and our description of early impressions will be less likely to haunt us later should our care be challenged as inattentive. The point here is not to sidestep the truth but to choose language that is

descriptive, objective and respectful.

• Be legible. Some physicians actually believe that illegible

notes are a good way to pre- vent lawsuits because they hide any evidence of wrong- doing. In reality, illegible notes provide no protection

Unhappy patients are

a risk-management

opportunity; patients

are less likely to sue if

you simply listen to

their grievances and

address them with

compassion.

Communication across

teams can be a chal-

lenge, but it is essential

to providing high-quali-

ty patient care.

A competent physician

knows when to seek

consultation, for exam-

ple, when the patient

isn’t getting better as

quickly as expected or

when the patient’s pre-

sentation is atypical or

the diagnosis obscure.

The greatest charting

mistake physicians

make is writing vol-

umes but failing to

note what is important.

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SPEEDBAR®

R I S K R E D U C T I O N

The greatest charting mistake

physicians make is that they fail

to note what is important.

Charting

Competence

Communication

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and are viewed by juries as reflecting sloppy writing and, perhaps, sloppy care. Years later, when the case finally gets to the jury, the medical record can be the doctor’s best, and often only, friend as memories fade over time. Legible and logical notes detailing thoughtful care provide the best malpractice defense. Best is to use an electronic medical record system (it brings a wealth of infor- mation to the point of care); next best is to have notes dictated and transcribed. If notes must be hand written, make certain they are legible.

Bottom line No one can promise immunity from law- suits. However, developing excellent rela- tionships with patients; promoting good communication with patients, colleagues and other members of the care team; main- taining clinical competence; and producing accurate and legible charts can go a long way toward reducing liability risk.

Send comments to [email protected].

Write the record as

though the patient

will read it, avoiding

comments that could

be interpreted nega-

tively and later used

against you.

Illegible notes provide

the physician no pro-

tection in malpractice

cases and may even

suggest sloppy care, so

make sure your notes

are legible and logical.

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SPEEDBAR®

The following articles from the Family Practice Management archives address the topic of malprac-

tice. All articles published after March 1997 can be

accessed from the FPM web site at www.aafp.org/fpm.

“Understanding the Physician Liability Insurance

Crisis.” Roberts RG. October 2002:47-51.

“Depositions: Defending Your Care.” Teichman PG

and Bunch NE. July/August 2001:34-36.

“Coping With the Stress of Being Sued.” Brazeau CM.

May 2001:41-44.

“Documenting High-Risk Cases to Avoid Malpractice

Liability.” Davenport J. October 2000:33-36.

“Documentation Tips for Reducing Malpractice Risk.”

Teichman PG. March 2000:29-33.

“Who Will Sue You Next?” Leaman T and Saxton JW.

September 1996:36-40.

“Malpractice: Living With Risk in a Risky Business.”

Henry LA. May 1995:56-64.

FPM ARTICLES ON MALPRACTICE