Excerpted from The Biggest Legal Mistakes Physicians Make: And How to Avoid Them
Edited by Steven Babitsky, Esq. and James J. Mangraviti, Esq. (©2005 SEAK, Inc.)

Download Free 646 Page E-book: The Biggest Legal Mistakes Physicians Make and How to Avoid Them

Executive Summary

These times are exceptionally litigious, and physicians are always a target defendant. Iatrogenic injuries are placed under a legal microscope and even unavoidable, unexpected, and inexplicable occurrences can lead to seven-digit claims. Deviation from acceptable medical procedures, even when intended to be for the patient’s benefit, and even when seemingly minuscule, can provide the basis for a lawsuit. Avoiding malpractice liability starts at the instant of the first patient contact.


Mistake 1      Planting the Seed of Revenge Through a Brusque or Dismissive Demeanor

First impressions are lasting, and every effort should be made to be courteous, polite, and professional. Each step of any medical examination must be explained to the patient and the reason given for the necessity and purpose of every part of the examination. The physician should always extend the opportunity for a concerned relative to accompany the patient during the introduction to the patient and every subsequent examination. Patience is mandatory, including repetitive statements that evince courtesy and respect. Explanations must be made in lay terms until both the patient and his or her accompanying party understand. The patient should be thanked for the opportunity for the examination.


I recall a client who had the utmost trust and respect for her regular ob-gyn from the start. She saw him because she was concerned about a small lump on her breast. He ordered a mammogram, but months went by with no word from the physician. The patient interpreted this as a negative report. Noticing that the lump had increased in size, the patient called the physician who, through some administrative failing, had never gotten the mammogram report. A repeat mammogram revealed metastasized breast cancer. The patient refused to sue the physician because they had established a mutually respectful relationship. The patient died two years after the diagnosis at age 29. The point: Even in cases of glaring error, establishing a good relationship at the start is always beneficial to the physician.


Action Step    If a physician is unable to express warmth, friendliness, and understanding to each and every patient, then he or she should consider a specialty practice, such as radiology or pathology, where socialization attributes are less essential.


Mistake 2      Referring a Patient without Following Up

It is rarely possible for a treating physician who is referring a specialist to directly introduce that specialist to the patient. If it can be done, it should be done. But it must be remembered that the patient still considers the referring physician to be his or her primary care provider. As soon as the specialist communicates with the referring physician, the referring physician should discuss the findings and proposed treatment with the patient. Regular communication is essential; without it, the patient feels neglected and the scenario is set for resentment and anger that could fuel a lawsuit.


Action Step    When a referral of the patient to another physician is made, the treating physician should clearly pronounce the name of the specialist, give the patient the specialist’s card, and make it clear that the principal physician will communicate with the specialist and then with the patient. If it is possible, the referring doctor should give his or her own recommendation of the specialist and the reasons for the referral and recommendation.


Mistake 3      Failing to Check Medications

When a prescription is given, physicians do not always check to see whether it is contraindicated because of the use of other medications. Where several physicians are involved in a patient’s care, they may be unaware of the medication each has prescribed. In addition, elderly patients may forget to disclose some of their medications even though they ingest the drugs daily. Prescription medications often change during the course of treatment, and consumption of contraindicated medication can have grave results.


Action Step    The physician should insist that patients undergoing a course of treatment bring in all of their medications at each visit. Patients should be instructed to patronize only one pharmacy, and the physician’s staff should regularly order medication transcripts from the patients’ pharmacy to include in the patients’ files.


Mistake 4      Overlooking Foreign Bodies

Operative procedures are intense, fast, and furious. The surgeon knows that the quicker the procedure is performed, the better the prognosis. However, over and over, this enables a lawyer to find a holy grail: a malpractice action because some substance or instrument was left internally at the surgical site. Physicians should always arrange instrument trays in the same way and insist that their operating room assistants have a similar tray for used instruments to be arranged the same way as the instruments were arranged on the original sterile tray.


Action Step    Hospitals have a double count of operative devices, but the cautious practitioner will always insist on a triple count, plus his or her own, making four counts in all.


Mistake 5      Failing to Take a Patient’s Complaints Seriously Enough to Hypothesize All Conditions That Could Exist

A female patient complained of a persistent stomachache. She was examined by her regular physician, who told her to take Pepto-Bismol. In fact, she had a fallopian tube tumor. It is basic that all possible conditions must always be hypothesized, even when the patient’s complaints seem minor. Physicians should ask: “If it is not minor, what are the worst case scenarios”? They should then examine and test for conditions from “a” to “z.” If a diagnosis remains uncertain, dialogue with colleagues may be necessary.


Action Step    Physicians should always ask what, how, when, and why. Then ask again. If a patient calls still complaining within hours or days of an examination, another immediate examination is required.


Mistake 6      Bragging That Can Cause Legal Fights

Experienced physicians are entitled to apprise their patients of their expertise in their field, but not phrased in a way that is seen by the patient as a virtual guarantee. Some medical procedures are inherently dangerous. The level of the risk of harm or a poor result may vary, which should always be disclosed as diplomatically as possible. The patient should be questioned to determine whether his or her view of the procedure and the expected result is realistic and whether the patient clearly understands the risks.


Action Step    Many physicians dispense pamphlets that thoroughly explain the procedure that a patient will undergo. Physicians should have their patients and their relative sign a release that includes a statement that they received, read, and understood the pamphlet.


Mistake 7      Not Telling a Patient Who Is in a Death Spiral the Grim Facts

“You’re doing well,” says the doctor after examining an octogenarian who has a spot on his lung. The patient is frail and confused. The patient’s only relative, his daughter, is not told that the patient is likely to expire soon. Treatment goes on and, in weeks, the patient expires. The daughter has watched the treatment daily but is never told of the death spiral until the day before the patient’s expiration. The physician’s initial statement, “doing well” actually meant “under the circumstances.” The daughter is amazed that all of the treatment has not resulted in the patient’s return to health. She is grieving and angry and feels deceived. If the patient is likely to die regardless of medical efforts, he and his relatives must be told so.

Action Step    Physicians should tell the patient and the relatives that the best of medical care and treatment may not result in a return to health and that the inevitability of death marches on with an increasingly faster cadence when medical intervention fails. Physicians should not create false hope.


Mistake 8      Failing to Induce a Patient to Stop Smoking

Physicians routinely annotate a patient’s disclosure that he or she is a smoker. But how often does a medical record note that the smoker was offered options to rid himself or herself of this habit? It is legally logical that nontreatment of a smoking habit could have malpractice implications and could perhaps succeed.


Action Step    Physicians should use pamphlets explaining the dangers of smoking and the cessation options available and enter a statement in the records that the patient was urged to quit, given a pamphlet on this issue, and read and understood it.


Mistake 9      Not Dictating in the Presence of the Patient

Patients often complain that the written physician reports in their medical records conflict with what they were told by their physician at the time of their examination. When the patient’s records are obtained for legal use, they are often juxtaposed with the client’s view and are sometimes useless to promote the client’s position. Most physicians see their daily schedule of patients then retire to their office to dictate their recollection of the examination. If the examination report is dictated in the presence of the patient, this paradox can be avoided. The physician should always think of avoiding conflict with the patient. The examination report should be, as a matter of course, sent to the patient with a courteous letter inviting suggestions or corrections. If there is a misunderstanding the physician must thoroughly (read: repetitively) explain the patient’s misconception.


Action Step     People like to find someone else to blame because their egos see themselves as faultless individuals. Clearly and concisely telling the patient the results of the examination, while dictating, prevents assertions of conflict.


Mistake 10    Failing to Have a Vest Pocket Lawyer

Most lawyers necessarily have a personality that others find difficult to relate to. Lawyer’s minds are forever bent by their law school and practice experience, which trains them to think outside the mold. It is a matter of survival. Lawyers must take punch after punch and go on to the next fight. Physicians and others find it difficult to relate to a lawyer’s psyche. But having a friend for a lawyer is priceless. When a physician is facing a possible legal headache, it can often be diffused by a tete-à-tete with a lawyer friend, who can give direction to confusion and create peace from chaos. How many times has a lawyer thought: “If only you came to me before you did that”?

Action Step    Physicians should play golf or tennis or go skiing with a lawyer.



Advising a physician to “just be yourself,” is unfortunately not enough to cover all of the pitfalls to which a physician may be exposed. Patients are often fickle and punitive. Wearing a physician’s hat during business hours is demanding but justified by rewarding experiences.


Written by:

Peter S. Palewski, Esq.

Peer reviewed by:

Geoffrey A. Hampton, Esq

Download Free 646 Page E-book: The Biggest Legal Mistakes Physicians Make and How to Avoid Them