We have all heard the adage, “An ounce of prevention is worth a pound of cure.” This is very true in the realm of medical malpractice risk management. The cheapest claim is the one that either didn’t occur or which was nipped in the bud before it had a chance to fester into a full-blown lawsuit.
Let’s look at some tips for preventing medical malpractice claims and lawsuits.
1. Hone Your Listening Skills
God gave us two ears and one mouth. Many observers believe that people – and especially physicians – should use them just in that proportion. Genese Dopson Smith of Smith & Wong in Berkley, CA states, “I think it is important to make sure to distinguish “bedside manner” (being polite, good banter) from the importance of being a `good listener.’ Patients do not always convey their problems as directly as we would hope. As you know, this is due to a lot of reasons, e.g., fear, stress, lack of knowledge, lack of good communication skills.”
2. Involve Patients in Constructing their Own History
Another risk management tool is to have physicians advise patients to create, in writing, their own history and chronology of personal and family illnesses and causes of death, etc. If this was done during initial visits, the patient’s view of his or her own history could be placed in the medical file and it could form the basis for additional inquiry from the doctor taking an initial history and physical.
3. Encourage Written Questions From Patients
Physicians should also consider advising their patients to make a list of questions, in order of importance, they would like to have answered when they go to see the physician for routine or any other office visits, or even when they are in the hospital and anticipate seeing their doctors during daily rounds. Documenting these questions (either by including a copy of the questions in the medical file or outlining them in progress the progress notes) and documenting the physician’s responses is admittedly time consuming. However, it will certainly help a physician prove that he or she addressed patient concerns at the time the concerns arose.
Christina Gill Roseman of the Butzel Long law firm in Detroit recommends the following in order to prevent medical malpractice claims:
- document thoroughly,
- take pains in getting informed consent,
- invest in continuing medical education and
- cultivate a good bedside manner, since people skills certainly are key components in avoiding malpractice.
4. Videotape Informed Consent Exchanges
Some physicians videotape discussions of informed consent. This would be effective, but there may be open issues as to how many physicians want to do this or how many patients would agree to videotaping.
With regard to informed consent, having the patient view a videotape describing the procedure and explaining the possible risks and complications is very effective. The physician should then have the patient sign a form evidencing that he viewed the same.
5. Avoid Taking “Pot-Shots” at Other Doctors
There is no need to put in the medical record any opinion to the effect that the other physician is prescribing the wrong treatment or is otherwise in error. If the physician is upset about this, the matter can be reported in a non-discoverable manner to a quality assurance or peer review committee. Otherwise, what happens when a physician criticizes another in the medical records is that the plaintiff’s attorney will exploit this to drive up the cost of settlement. It negatively impacts the cost of settlement against the physician who supposedly was wrong but will drive up the price as to all physicians in the case.
Therefore, be careful about what you say about your colleagues. If a patient asks a second doctor if the first M.D. should have done a procedure and the two physicians are in the same office or practice, all the second doctor has to say is “I don’t know — I did not see you then to evaluate the need for the procedure.”
Number one, this is true because doctors do not diagnose records, they diagnose patients.
Number two, it keeps physicians from setting up the doctor in the next office.
6. Be Careful with Computerized Medical Records
Computerized medical records also cause problems. For instance, a doctor’s nurse looked at the computer screen and read a pregnancy test as “negative.” A drug was prescribed that was toxic to a fetus. The woman was actually pregnant. The nurse had read the “lab value reference” page and not the “actual lab results”. She had not “clicked” the computer mouse over to the next page on the computer. This produced a $450,000 award.
Hospital nurses are using computerized checklists with boxes to “check off.” There are “defaults” that show up when no entry is added. These defaults come out as “nursing notes” when a hard copy is made. Some nurses don’t know that. What do you get? Lots of nursing notes about “someone else”!
7. Document Meticulously
There are many different ways to avoid malpractice in documenting a medical records. First and foremost is being thorough.
Patrice O’Brien of Mylotte O’Brien law firm in Philadelphia, PA states,
The best risk management advise to physicians is to “document, document, document.” Physicians must also be reminded to date and time their entries. It is also helpful if the staff documents in its progress notes the date and time the physician was in to see the patient as a back up note.
Another problem is professionalism in physicians dealing with each other’s foibles. The medical records should be objective. They are not the proper places to air grievances with other health care providers. If a physician is not pleased with how another doctor responded or handled a case, it is enough to state in the medical records that the matter was discussed with the physician.
The above was excerpted from Quinley, KM Bulletproofing Your Medical Practice: Risk Management Techniques for Physicians that Work (SEAK 2000). Please click here to download a free complete copy of Bulletproofing Your Medical Practice: Risk Management Techniques for Physicians that Work.