1. Describe physician behaviors, practices, and attitudes that optimize patient care and minimize the risk of being sued.

2. Recognize the link between patients’ anger, complaints, and the risk of being sued.

3. Practice standards of medicine that reduce the chances of patients’ having a bad outcome, becoming angry, and initiating a lawsuit against the physician.

4. Document procedures and interactions with patients and hospital staff to protect against future legal actions.

5. Respond to patients’ concerns about drug side effects and explain the physician’s and patient’s roles and responsibilities in making decisions about medication and care.

Reducing the Risk of Medical Malpractice Claims
Marvin C. Mengel, MD, JD, Clinical Associate Professor of Medicine, University of Florida College of Medicine, Gainesville, and Medical Director of Community Hospitals, Orlando Regional Healthcare, Orlando, FL

Description of problem: Harvard Medical Practice Study—found 200,000 deaths per year result from errors; most cases of malpractice do not result in claims; most claims that succeed involve actual errors with damage; study (1996)—concluded that payment predicted by severity of disability, not whether negligence caused adverse outcome; study (2006)—review of 1452 randomly selected closed claims concluded most payments go to defray cost of litigation, and payments associated with errors occurred 73% of time; overhead costs of litigation high; study (2003)—Government Accounting Office concluded that results of litigation random and unpredictable; suits involving brain-damaged infants often resulted in claims being paid, because lawyers hesitant about taking such claims to jury; when taken to jury, these claimants won, regardless of whether malpractice involved; Urban Institute statement in 2005—top 5 problems include too many patients who had preventable injuries, poor compensation for injuries (eg, <47% of reward collected goes to injured), inefficient resolution of claims, poor disclosure of injuries because of liability fears, and inherent subjectivity of determination of negligence; study—found strong positive correlation between number of unsolicited patient complaints and risk for claims among 645 physicians representing 2500 physician-years of care; study—5.9% of physicians responsible for 57% of claims paid, of which 90% to 97% settled without trial

Litigation improves patient safety: study in 2006 found that changes in anesthesia care, which were motivated by fear of litigation, reduced death rate from 1 in 5000 to 1 in 250,000; suggests that patient- safety issues may be ignored until litigation occurs or federal government intervenes

Background: 80% of patients have good outcomes, regardless of physician’s actions; 10% die; outcome in remaining 10% depends on physicians’ actions; 80% represent minimal legal risk and give physicians false sense of confidence; literature suggests <10% of patients who could sue actually do so; lawsuits generally involve 10% who die or 10% whose outcome depends on physicians’ actions

Methods to prevent or minimize complaints and risk of being sued

Assume bad outcome: answer all pages promptly; do not practice medicine by telephone; do not write prescriptions for nonpatients; document all telephone calls giving orders for patient care; examples— $2.2 million awarded in case of patient who waited all day to see doctor for chest pain and died; $3.5 million awarded to patient because of brain damage resulting from delayed diagnosis of leaking gastric bypass

Avoid overconfidence: resist temptation to take over responsibilities for which physician has insufficient training (eg, “being grandfathered in”); physicians responsible for making sure patients understand treatment options, and patients have final choice; members of jury of “peers” do not have medical expertise, rather experience with their own physicians; angry patients more likely to sue, and angry jurors more likely to vote against physician; example—$216 million awarded to patient for misdiagnosis of stroke as sinus headache; physician lied to jury by saying he had examined patient; misdiagnosis made by unqualified physician’s assistant; jury angered by physician’s dishonesty and inappropriate use of assistant to save money

Follow rules: know standards of care; check all laboratory results; make sure medications patient taking at home used appropriately in hospital; perform careful history and physical examination before surgery; use antibiotics according to guidelines; use qualified assistants in appropriate capacities

Make friends of nurses: appreciate their calls, answer promptly, and document conversations

“Fire” (discontinue seeing) problem patients: document noncompliance that endangers patient or interferes with treatment plan; make copies of prescriptions and do not accept patients who alter prescription or number of refills; discontinue treating patients whose behavior is abusive or who harass staff; give patient ample notification, and document intention to discontinue treating

Be professional: do not give prescriptions without examination; do not practice telephone medicine; evaluate all patients equally, regardless of social or professional standing; perform honest peer reviews, and report poor care

Document noncompliance: patients may lie about self care, taking medications (count pills and ask how often patient misses doses), or may decline test; make sure patient understands dangers of declining test; document noncompliance and any social problems related by patient

Minimize errors: slow down; document carefully; hospital errors kill 238,000 patients per year

Tie up loose ends: explain inconsistencies in documentation; follow up on abnormal test results

Avoid traps: deny patient requests not to document something in chart

Interactive forces working on physicians: recognize conflicting demands related to efficiency, caring for patient, medicolegal fears, desires of family, physician’s income, and hospital’s income

Case: patient admitted for minor surgery; hematocrit dropped from 44% to 34%; patient asymptomatic; patient refused physician’s advice to be evaluated for anemia; physician documented suggestion of work-up for anemia and patient’s refusal; patient later diagnosed with colon cancer; physician safe because of documentation; goal—physician safe regardless of outcome

Minimize risk: general public often believes that if victim “pays” (in form of disability), caregiver should “pay” (eg, money, criminal punishment, loss of license); document everything

Questions and Answers
Dr. Mengel and Michael R. Lowe, Esq, Orlando, FL

Telephone medicine: do not give prescriptions without seeing patient; always evaluate patients adequately with history and physical examination; some health maintenance organizations (HMOs) allow reinstitution of drug for some recurring conditions, eg, urinary tract infection; practice of telephone medicine increasing; review rules dealing with telephone medicine adopted by many state boards of medicine; always document telephone and electronic mail (email) conversations with patients, nurses and hospital staff; face-to-face meeting between physician and patient necessary before prescribing new medication

Allowing patients to look at their medical records: patients may be given copy of records or may look at chart in presence of physician or representative; never allow patient to review chart alone or to remove anything from chart

Patients’ fear of side effects of medications: any medication can kill or permanently injure patient; safety studies involve small numbers of patients; patient responsible for making decision on basis of possible risks vs possible benefits; make sure chart documents acknowledgement of risk; do not dismiss patients’ fears about taking new drug or give them false assurances

Black Box warning: required by Food and Drug Administration (FDA) on drug label intended to be read by physician; indicates medication carries more risk than others; physician responsible for reading warning and informing patient of potential health risks

New drugs: promoted more actively by pharmaceutical companies but have more potential for risk because of limited experience with their use (especially if new class of drug); speaker recommends caution when prescribing newly released drugs

Be cautious of using drug for unapproved indication: physician must explain to patient that drug not FDA- approved for this use and document conversation

Be familiar with labeling: explain contraindications and potential for drug-drug interactions to patients and allow them to decide whether to take medication contrary to label indication

Samples: make sure no samples dispensed or prescriptions written without adequate examination of patient, eg, sildenafil samples to physician’s golf buddies, prescriptions for nonpatient friends, family members, or neighbors

Roles and responsibilities: physician—give professional advice, provide information and reasonable choices; inform patients of known risks; patients—make informed decisions