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
The benefits of using risk management in the medical setting are clear. The education, prompt identification, and investigation of problematic issues through a risk management process can be implemented at the institutional, the individual, and the practice group levels. Educating all providers and staff on the proper documentation and identification of problem areas may help to avoid claims or lawsuits. While these techniques will not always prevent a claim, they will help provide the best possible defense against a claim.
Mistake 1 Failing to Recognize Problem Patients
Recognizing problem patients early on is an important component of risk management. Problem patients may exhibit traits that include a lengthy history of care from many different physicians, a course of care dominated primarily by emergency visits, constant complaints about past and/or current care, ongoing failure to pay for services, and consistent noncompliance with medical advice and instructions. These types of traits are commonly seen in plaintiffs or litigious individuals. The prudent practitioner, by identifying these traits early on, may decide to discharge or not accept such patients. By making such a decision, the practitioner can often save time, money, and aggravation in the long term. If, on the other hand, such patients are cared for, the practitioner should document in detail their care and the issues involved.
Action Step Physicians should develop systems that will alert them to problematic patients early on in order to determine if these patients are worth the long-term aggravation.
Mistake 2 Pursuing Collection Actions for Patients Where Care May Be an Issue
Many malpractice claims arise when a physician pursues a collection claim. Once a malpractice claim is filed in response to a collection claim, a defense must be made. Although the decision to pursue a collection action rests with the physician, once a malpractice action is filed, much of the physician’s control over the situation is lost. Any decision to pursue a collection matter (by letter or action) should therefore be carefully evaluated before it is pursued. If a claim is made, the physician must weigh a number of factors—including whether he or she is prepared to defend all of the care given to the patient, the nature and traits of the patient (i.e., is this a problem patient?), and the amount of money involved—against the risk of a claim. If a claim for collection is asserted, physicians should be sensitive to the manner of collection and to the personality of the person seeking the unpaid monies in further attempts to avoid a malpractice claim.
Action Step Physicians should perform a risk-benefit analysis before each and every collection attempt is made.
Mistake 3 Failing to Keep Consistent, Accurate, and Complete Documentation
A well-documented chart is, in all respects, the best witness in a lawsuit: It is made contemporaneously with events, it has no memory to fade over time, and it has no bias or prejudice. Ensuring that all aspects of patient care are documented in a timely, chronological, consistent, and legible manner is key to proving that good, quality care was rendered. The first action a potential plaintiff’s attorney will take to determine whether to file a lawsuit is to obtain and review a copy of the chart. A well-documented chart documents the care and provides a clear chronology of the potential basis for a claim, with no gaps within which a plaintiff’s expert can claim “if it is not documented, it was not done.” Every staff person who writes in the chart must be aware of these issues as well. Timed, dated, contemporaneous entries detailing the action, care, communication, prescriptions, telephone calls, missed appointments, instructions, and refusals with consistent, approved abbreviations make a good chart.
Action Step Physicians and their staff should document, document, document.
Mistake 4 Failing to Maintain a Good Bedside Manner
Patients who like and respect their providers are less likely to file a lawsuit. The manner and method in which physicians and their staff render patient care have a significant effect on decreasing or increasing this risk. Even when quality care is delivered, patients who must wait 45 minutes for every appointment, never get an apology, and are greeted by brusque and unfriendly staff may become angry at the physician or group. Staff who cannot maintain a good attitude with patients should not deal directly with patients. If a bad or unexpected injury or illness occurs, a patient who feels that he or she has a poor relationship with that doctor or staff will not hesitate to talk with a lawyer and pursue a claim. A good relationship with the patient can serve to overcome that risk. If a suit is filed, a good patient relationship always works to the physician’s benefit in terms of receiving a favorable testimony by the plaintiff, keeping damages down, and keeping the plaintiff reasonable.
Action Step Physicians and their staff should maintain a good bedside manner with patients and always be professional with other providers; doing so goes a long way in the long run.
Mistake 5 Failing to Designate a Point Person to Oversee Risk Management
Early identification of problem areas or trends that may result in claims can be very beneficial, especially if corrections can be made before problems result. Methods and procedures to identify and sort issues and spot trends must be instituted for prevention. The best way to identify problems is to designate a key person to whom problems are to be reported. Similar to the incident reporting system at hospitals, physician offices or groups should designate a person to whom an informal report is made. Staff must be educated to report events that occur in an office setting; such reports should be verbal only. For example, if a patient who is scheduled for a procedure states that he or she does not understand the procedure or its risks, that fact should be reported to the point person. Such identification may show a trend that one of the group’s physicians is not following the informed consent process. Before a claim arises, steps can be taken to educate that physician on the need to follow protocol or additional double-checks can be instituted. Problems that are identified early may be resolved before a claim is made.
Action Step Physicians should designate a point person to oversee risk management and identify potential problems.
Mistake 6 Making Negative Comments About Other Providers
No medical provider, physician, or staff person should ever be critical of other providers in front of a patient or in the chart. Facts may be and should be documented, but critical opinions or comments, if heard or viewed by a patient or his or her attorney, could foster potential litigation and may serve as the basis for expert opinions in a lawsuit. Criticism of prior treatment will serve to involve the criticizing provider in a suit against the provider who gave the prior treatment. In addition, physicians should beware of patients who attempt to elicit criticisms. They may have already considered or instituted a lawsuit against another provider. Physicians are well served in rendering treatment recommendations based on objective evaluation, not on the plaintiff’s subjective claims or description of the history of the case.
Action Step Physicians should not include criticisms in a patient chart or when communicating with patients.
Mistake 7 Failing to Follow Up
A common area for potential claims is the failure of a physician to document the follow-up with a patient on an important issue or recommendation. Copies of notes on failed appointments, reminder calls or notices, instructions, prescriptions, and attempts to ensure that the patient returns for care should all be part of the chart.
Action Step Physicians should follow up with patients and document that follow-up was done.
Mistake 8 Failing to Properly Discharge Patients From Care
Once a patient has been discharged from care, the statute of limitations may begin to run, and obligations under the physician-patient relationship likely will end. Often, this discharge process is informal and not well documented. Creating a formal procedure and supporting documentation in the chart (including a communication to the patient) will help to establish a cut-off to liability.
Action Step Physicians should formalize the discharge process and document the steps that are taken.
Mistake 9 Failing to Refer When Needed
Physicians who know and understand the limitations of their practice and expertise have taken a large step in managing and minimizing their risk. Physicians who fail to do so run the risk of developing a problem from lack of expertise, often resulting in a patient seeking care from a specialist. In this scenario, the specialist, if pressed, will often criticize the general practitioner as exceeding his or her expertise. Specialists can be favorable experts for the plaintiff, since, by virtue of their specialty, their expertise is greater than that of the general practitioner. When situations occur that necessitate a referral, the process of referral should be well documented regarding the reason for the referral and, if urgent, care should be taken to ensure prompt action with the patient and specialist. Such actions work to cut off liability on that issue for the general practitioner.
Action Step Physicians should not hesitate to refer when appropriate and document the process.
Mistake 10 Relying on Systems That Take Out Narrative Progress Notes and Descriptions of Communications
In a lawsuit, the chart and documentation of communication with patients and other providers are the backbone of the defense. A well-documented chart is not only a key witness, it also preserves facts and actions that have been forgotten over time. While technology can be a great help to the busy practitioner, preprogrammed checklists or forms alone do not create the type of documentation most helpful to a defense. The narrative descriptions or issues pertinent to a particular patient’s care help to create a more comprehensive picture of the entirety of care, as well as to spark memories of those who may be called to testify years later. The clearer the picture, the better the defense.
Action Step Physicians should use only those charting programs that are designed to allow and encourage narrative notes.
An ounce of prevention through risk management will save time, effort, expense, and aggravation later on. Identifying problems early, educating staff, and promptly investigating issues may help prevent a claim, and if not, will assist in defending one.
Linda J. Hay, Esq.
Peer reviewed by:
Anne M. Oldenburg, Esq.
Download Free 646 Page E-book: The Biggest Legal Mistakes Physicians Make and How to Avoid Them