Practical Issues In Risk Management

From the Southern Medical Association’s 20th Annual Conference, Focus on the Female Patient

Sarah Freymann Fontenot, BSN, JD, Adjunct Professor, Department of Healthcare Administration, Trinity University, San Antonio, TX

Dealing With the Difficult Patient

Educational Objectives

The goal of this program is to broaden the listener’s awareness of issues affecting risk management. After hearing and assimilating this program, the clinician will be better able to:

1.   Recognize the challenges that difficult patients present to a medical practice.

2.   Identify which types of patients are likely to file a medical malpractice lawsuit.

3.   Discuss the role of communication in reducing medical risk for malpractice litigation.

4.   Cite the 4 elements necessary for a successful medical malpractice lawsuit.

5.   Discuss exceptions to the statute of limitations governing obstetric cases

Faculty Disclosure

In adherence to ACCME Standards for Commercial Support, Audio-Digest requires all faculty and mem­bers of the planning committee to disclose relevant financial relationships within the past 12 months that might create any personal conflicts of interest. Any identified conflicts were resolved to ensure that this ed­ucational activity promotes quality in health care and not a proprietary business or commercial interest. For this program, the faculty and planning committee reported nothing to disclose.

Acknowledgments

Ms. Freymann Fontenot was recorded at Southern Medical Association’s 20th Annual Conference on Fo­cus On The Female Patient, held July 26-30, 2009, on Kiawah Island, SC. The Audio-Digest Foundation thanks Ms. Freymann Fontenot and the Southern Medical Association for their cooperation in the produc­tion of this program.

Issues with difficult patients: in most medical practices, 5% to 10% of patients considered difficult; more likely to file lawsuit; take more time to handle than other patients; significant drain on office staff; “likable patients with complex problems present scientific challenge that physician is pleased to address; unlikable patients with minor problems can be cared for expeditiously without much emotional investment”; grief, anger, coping, and control is­sues can cause patients to be difficult

Noncompliant patients: important to document in medical record patient’s noncomplicance and provider’s emphasis on patient education; assess for barriers to compliance (eg, communication, cultural, financial); consider termina­tion of physician-patient relationship if unable to resolve issues of noncompliance; contact state medical board about protocol for termination (most states require 30-day notice); noncompliant patients raise liability risk; non­compliance can be result of personality differences with health care provider; noncompliance ultimately results in patients not receiving care they need

Health literacy: many patients health illiterate; 1 of 5 American adults reads at fifth or sixth grade level; average American reads at eighth or ninth grade level; physicians in top 3% of population in literacy; 75% of patients sur­veyed who admitted to difficulty reading had never told physician, and 67% had never told spouse; addressing pa­tients with poor health literacy  —  slow speech down; use plain, nonmedical words (eg, “poison” rather than “toxic”, “keep an eye on” rather than “monitor”); show or draw pictures to reinforce teaching, especially before surgical procedure; include copy in medical record for further reference during follow-up visits (if involved in liti­gation, conveys to jury that you took time to ensure patient understood); limit what you say and repeat it; focus on 2 or 3 most important issues (review and repeat); use “teach back” or “show me” technique; create shame-free environment

Argumentative patient: some patients consider arguing fun (“it’s their sport”); ultimately impacts care; personality clash with particular staff member may require change in staffing when patient in office; document appropriately; consider termination of physician-patient relationship if disruptive to office

American Medical Association’s Principles of Medical Ethics: “physician shall in provision of appropriate patient care, except in emergencies, be free to choose whom to serve, with whom to associate, and the environment in which to provide medical care”; consult with state medical association about rules for appropriate termination of patient from practice in nonemergency situation

Abusive patient: set boundaries by letting patient know abusive language will not be tolerated in office; if conduct occurs with one particular staff member, consider change in staffing when patient in office (consider rewarding staff member who maintains professionalism with patient); document appropriately and professionally; never com­promise medical judgment; consider termination

Violent patient: maintain low tolerance; call police for any threat of violence if unable to remove patient from office; terminate under rules of state medical association; let office staff know you support them 100%; if staff uncomfort­able with patient, situation must be resolved; overt violence  —patient must be restrained to prevent injury to others; use physical restraints, pharmacologic intervention, or both; if necessary, utilize police to remove patient from of­fice; psychiatric evaluation may be warranted

Role of communication: physician perceived as not communicating well much more likely to be sued; few patients in position to assess physician’s clinical skills; patients judge physicians largely on basis of interpersonal skills; pa­tient less likely to sue and more likely to be loyal and compliant if patient feels strong personal connection with you ( patient should feel “warm and fuzzy” about you);  why patients sue  —  83% of attorneys surveyed attributed law­suits to physician indifference; 77% said patient looking for answers; 54% said patient angry about situation; 50% reported inadequate information before procedure; only 37% reported technical error; allow patient to tell their story; female physicians sued 3 times less frequently than male physicians; one explanation may be gender-specific communication pattern; average time before male physician interrupts patient, 4 sec, vs 37 sec for female physi­cian; patients want to tell story; physicians advised to give patient 2 min of undivided attention (without interrupt­ing) for patient to discuss reason for office visit

Reasons patients do not file medical malpractice lawsuits: damages insufficient to warrant claim; personal philos­ophy and/or religious beliefs; lack of trust in legal system; relationship with physician (think of physician as friend); too intimidated to sue; desire to move on and not prolong pain in life; interfamily conflict over whether to sue; reluctance to risk having to “air their own laundry”; physicians advised to ask staff and family about their com­munication skills and how patients may perceive them

Update in Malpractice Liability

Who is sued: obstetricians and gynecologists account for 20% of medical malpractice lawsuits; internal medicine, 18%; family medicine, 16%; general surgery, 15%; orthopedic surgery, 14%; pediatrics, 4% (damage awards re­lated to pediatrics expensive because of emotional issues related to children and damages multiplied over many years); obstetrics leads in damages paid out by specialty followed by pediatrics, internal medicine, general surgery, orthopedic surgery, and family medicine; brain-damaged infants most expensive legal liability claim

Four Elements of Successful Medical
Malpractice Lawsuit

Duty: legally, no duty to help strangers; exceptions  —parent-child relationship, personal created liability, or profes­sional relationship (eg, physician-patient relationship); good samaritan laws in place to protect person helping stranger; duty to help person arises from relationship, job (eg, lifeguard) or professional relationship; medical mal­practice lawsuit cannot be brought against physician unless physician-patient relationship exists; however, lawyers capable of easily establishing existence of such relationship; speaker cautions against giving informal medical ad­vice to laypersons

Breach of duty: failure to deliver standard of care; negligence becomes jury question; negligence involves acts (eg, wrong leg amputated) or omissions (eg, failure to treat preeclampsia); jury determines whether appropriate care deliv­ered through expert testimony; expert witnesses willing to testify to anything located in legal publications; accord­ing to federal report, medical teams in hospitals caused nearly 158,000 avoidable injuries to new mothers and their babies during childbirth in 2006, childbirth most common reason for hospitalization; women giving birth who lived in highest income communities suffered 44% more obstetric injuries during vaginal delivery than those from poor­est communities; black and Hispanic mothers experienced fewer childbirth related injuries than whites; Asian-American and Pacific Islander mothers had highest rate of injuries (HealthLeaders Media, June 18, 2009)

Causation: physician’s actions must result in damages; causation should be focus of lawsuit; “bad outcome does not mean bad care”

Damages: some measurable harm to patient must have occurred for damages to be awarded

Case: malpractice suit filed by man with congenital cardiac anomaly; had numerous surgeries as child, with good outcome (complete repair of septal defect); experienced sudden onset of jaw pain, pain radiating down left arm, shortness of breath, chest pain, and diaphoresis at 37 yr of age; presented to hospital and explained medical history and current symptoms; told “he was too young to have a heart attack” and advised to return in 6 mo if symptoms persisted; patient dissatisfied with this advice, and contacted cardiac surgeon seen during childhood; surgeon ad­vised patient to present to another hospital immediately; patient underwent bypass surgery that evening and recov­ered fully; of 4 elements of successful lawsuit, duty and negligence present; however, no causation or damages; had patient followed advice of first hospital and had been harmed or had died, lawsuit could have been successfully pur­sued

Statute of limitations: places limit on time during which lawsuit can be filed; in most states, medical malpractice lawsuit must be filed within 2 yr; exceptions  —  fraud (patient deliberately misled or evidence covered up; statue abused for physician’s benefit) and birth-related injury; in cases of birth-related injury in which parents did not file lawsuit at time of birth, injured individual may file suit on own behalf after he or she reaches age of majority, sub­ject to same statute of limitations; medical records of obstetric patient should not be destroyed until statute has run out for offspring

Vicarious liability: respondeat superior  —  legal doctrine that holds employers legally responsible for negligence of their employees as long as negligence happened within context of employment; 28% of medical malpractice law­suits involve mistakes made by medical office staff; actions of hospital nurse not legal responsibility of physician (because hospital, not clinician, employs nurse)

Suggested Reading

American College of Obstetricians and Gynecologists. ACOG committee opinion number 286, October 2003: patient safety in obstetrics and gynecology. Obstet Gynecol 102:883, 2003; Ares E: An uncommon skin condition illustrates the need for caution when prescribing for friends. J Am Acad Nurse Pract. 20:389, 2008; Bal BS: An introduction to medi­cal malpractice in the United States. Clin Orthop Relat Res 467:399, 2009; Feld AD et al: Most doctors win: what to do if sued for medical malpractice. Am J Gastroenterol 104:1346, 2009; Hickson GB et al: Physician practice behavior and litigation risk: evidence and opportunity. Clin Obstet Gynecol 51:688, 2008; Schutte, JE: Preventing Medical Malprac­tice Suits. MA: Hogrefe & Huber Publishing, 1995. Whitmore MR: Help! I’ve been sued: a guide to surviving a physi­cian’s nightmare. Minn Med 88:40, 2005; Williams DG: Practice patterns to decrease the risk of a malpractice suit. Clin Obstet Gynecol 51:680, 2008.