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Ten Things Doctors Can Do To Reduce Their Medical Malpractice Exposure

By Elizabeth Kwo, MD MBA – Senior CoverMD Contributing Editor


In this article, Dr. Kwo looks at ten ways doctors can help reduce their medical malpractice exposure.
According to the Bureau of Justice Statistics, 90% of all medical malpractice lawsuits are brought by patients who have suffered permanent injury, or by those representing someone who has died as a result of malpractice. In 2006, the Institute of Medicine of the National Academies stated that medication errors are one of the most common medical mistakes, causing injury or harm to at least 1.5 million people every year.
In this article, we will discuss ten things physicians should do in order to help lessen their risk of being involved in a medical malpractice lawsuit.

1. Establish a good relationship with patients

Research shows that physicians who show basic interpersonal skills such as listening and respecting the patient’s wishes can be just as important as clinical skills in preventing lawsuits.

It's often the case that doctors who are regarded as "nice" by their patients get sued less often. In addition to your personal "bedside manner" it's also important to ensure that your staff is trained in good patient relations. It never ceases to amaze me how many claims occur because a patient perceived that the doctor or the practice staff acted in a rude or uncaring maner. In many cases, these patients may be more likely to follow up with legal acation because of the the way they felt they’d been mistreated as a person.

2. Document everything

Record any procedures, exams, or counseling done with a patient as accurately and as detailed as possible such as explaining a disease or asking them to follow up with you. Indicate your reasoning to designate a specific diagnosis or treatment plan so that the patient has a clear understanding of why a procedure is being performed and has appropriate expectations for the outcome. Ensure that you obtain patient signatures, especially before performing any procedures that may involve risk. It's also a good idea to have a member of your office staff present when these conversations occur and when the patient signs the paperwork. This helps serve as strong protection for you and your practice.

If your judgment caused injury to a patient, but your documentation was complete, unambiguous, and explained all your reasoning, this will still help your case. This is important to indicate that as a physician, you know what is expected during a medical encounter. By documenting these events, it demonstrates your professionalism and builds your credibility.

3. Know the recognized standard of care

The prevalence of managed care means that physicians can often be pressured not to perform certain procedures because the managed care organization deems it unnecessary. For example, the HMO denies additional tests you ordered because the patient has ceased to be symptomatic. Later the patient’s condition returns and a malpractice lawsuit is initiated by the patient.

Knowing the recognized standard of care is crucial to protecting yourself in cases like these. A claimant's attorney could produce an expert witness at your malpractice trial to testify that you failed to meet the proper standard of care standard. Don't assume that the HMO’s refusal to pay for the additional tests will provide an effective defense for you.

4. Ensure patient confidentiality

Privacy rules require that all patient information should be given directly to the patient and not be left with family members or on answering machines. The patient should be notified to call back or come to clinic in person for results. All next steps such as further tests and referrals should be explained and patient decisions should be documented. If a patient requests that family or friends can be notified about personal health information, this authorization should be received in writing.

5. Be prepared to apologize

Studies show that apologies to patients who experienced medical errors decreased the probability of legal action. Patients who received a genuine apology that expressed both sympathy and acceptance of responsibility led to forgiveness and resulted in the patients looking more favorably on settlement offers.

In addition, many states now have physician apology laws on their books that enable a doctor to say sorry to a patient without fear of the apology being used against him later in a malpractice lawsuit.

A published survey in 2005 disclosed that 99% of parents wanted physicians to tell them about an error involving their children, no matter the severity. 63% of the parents stated that disclosure by the physician that a serious error had been committed would not change the likelihood of their undertaking legal action.

6. Protect yourself with medical malpractice insurance

It's important to ensure that you have the proper level of medical malpractice insurance for your speciality. This affords you strong protection in the event of a malpractice lawsuit. Also take advantage of the risk management services offered by your medical liability insurance company.

The good news is that physician malpractice costs are continuing to fall across the country in most (but not all) states. Rates have not been this low for many years. We are in what is referred to as a "soft" market so the malpractice insurance companies are continuing to offer ever more competititve rates. The soft market looks set to continue for the foreseeable future which is certainly good news for physicians everywhere.

7. Follow up on all test results

Normal and especially abnormal results should be reported to all patients in a timely manner. Document that the patient was notified. Patients should be notified about the reason for tests, results, and next indicated steps. Phone communication should also be documented.

8. Never attempt to alter the medical records, regardless of your reasoning

This is common sense. If you review records and see a mistake or perhaps an omission, correct the mistake by crossing out the mistake with a line through it, add your initials, and write your corrected note. All words, including the mistake and the correction must still be legible. If you had an oversight in the electronic medical record, add an addendum to the medical note and correct the mistake.

9. Follow up on referrals

Although patients are ultimately responsible for contacting your referrals, medical staff should attempt to help patients follow up on their appointments and notify the physician on receipt of the specialist's report; call his office if you don't receive it; make sure you see the report before filing it in the chart; and arrange a follow-up appointment if necessary. If a patient fails to keep a referral appointment, your staff should telephone her and follow up with a certified letter. As always, these steps should be documented in the chart.

10. Do not diagnose or prescribe over the phone

Most medical conditions cannot be accurately diagnosed without seeing the patient in person, and it is also risky for the physician. Patients can often be poor historians or inexact when they report symptoms, so it is best to treat the patient after seeing them in person. If you must prescribe over the phone, you must document your discussion and set a contract with the patient to call you back as a follow up regarding their disease progress.

About the Author

Elizabeth Kwo MD MBA - Senior Contributing Editor

Dr. Kwo currently works at Cambridge Health Alliance as an Internal Medicine Resident. She holds a MD from Harvard Medical School, an MBA from Harvard Business School, and a BA from Stanford University in Human Biology.

Read Dr. Elizabeth Kwo's full bio


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