How to avoid a lawsuit

[gadoc]

Just finished lunch and was talking with a group of colleagues on examples of lawsuits that have occurred in the hospital. I tend to not practice overly defensive medicine but I was thinking in your specialty what are the usual causes of malpractice lawsuits and what could be done to avoid them.  I'm an internist and would say there are a couple in my field:

1. Delaying a diagnosis - example would be someone coming in with fever, neck pain, headache all signs of meningitis and no treatment or diagnostic procedure ( LP ) is done in the first 24 hrs.

2. Delay in treatment - Example would be someone coming in with symptoms suggestive of meningitis and LP was done which was consistent with meningtis and no abx were initiated.  maybe this would categorized as negligence instead?

3. Not calling a consultant in a timely manner - example would be someone with abdominal pain, US RUQ showing cholecystitis and sx not called for 24 hrs.

I was always told the best way to avoid a lawsuit is to obviously practice good medicine but also to have a great patient doctor relationship. If the family likes you they are much less likely to file a lawsuit. Also to document the ************************ out of everything.

What are your thoughts?

[Zaphod]

I think the family liking you etc...helps, but is much less important now than it used to be. People pay a lot for insurance and it bothers them, and the general sense of revenge/entitlement is higher. Obviously the stuff you mentioned is important, but angry/unhappy people will try to sue without any regard to merit, and some lawyer will generally take the case.

We've had crazy reasons for suits at our practice, and have had several people eventually fired by their lawyers in the end. Its insane, but we do practice a different kind of medicine (aesthetics). In the end even if a total gamble by pt/lawyer, it can still take years and lots of money to defend as well as stressful.

[jhwkr542]

In path, we can't be nice to the patient to avoid a lawsuit. Fairly black and white specialty when it comes to lawsuits. Melanoma is probably the biggest litigation area and that may or may not be correlated with rising rates of melanoma in situ dx without actual fall in melanoma death rates. Path is a unique field in that we can easily show other people cases to get other opinions. I utilize that quite a bit, either from colleagues or other experts.

[Hatton]

OB.  Impossible to avoid all lawsuits.  Bad outcome expect lawsuit.

[Zaphod]

hatton1 wrote:

OB.  Impossible to avoid all lawsuits.  Bad outcome expect lawsuit.

Click to expand...

Exactly. If its not a great outcome you can expect a lawsuit. Even if they like you, they have to live with it, will ruminate on it, and figure theyre deserving of it. They will have their friends, family, tv, pop culture and every law firm ad advising them to do so. They'll be told its just business and theyre suing the insurance carrier, etc...

Eventually all those other factors win them over vs. you, who are rich and they dont really know. Its essentially a lottery ticket. Its happening now with car accidents. Several pts have been in car accidents and they are all talking to lawyers, its part of the usual response it seems. Several consults are awaiting a car accident judgement, or looking for documentation. The mentality has changed, its nuts.

[q-school]

i find the easiest way to avoid lawsuits is to avoid seeing patients.

unfortunately my specialty does not allow for that.

i think you list many good ones.

hard to do all those things well all the time, especially given demands on our time.

i think the one you missed was excellent documentation.  perhaps ensure follow up.  i think there are some parts of the country where it is just plain more litigious than others.  communicating well helps mitigate, but i want to share the story of Dr X.

Dr X, now retired for more than a decade.  Dr X told all his patients one thing.  10% chance you live, 90% chance you die.  Rest up to Jesus.  I still have dozens of patients who think he miraculously pulled them back from the threshold of death for very minor conditions.  To say they think the world of him is to vastly understate things.  I'm still processing how I should use this information to my advantage.

Deposition Y

I received notice that I am something called a respondent in discovery.  This was back in the days of handwritten notes.  so basically they don't think i did anything wrong but they want me to be named in the lawsuit in case they can sue you later.  So after i finish crapping my pants, and learning i'm not actually being sued, i read the papers they sent.  and the part that strikes me is the bottom of the face sheet, where it includes the list of doctors being sued, and the list of respondent in discovery and then says we reserve the right to sue 11 physicians whose names could not be deciphered.   Again, pondered how to use this information to my advantage for many years.   unfortunately i'm not crafty so i have extremely legible handwriting and wrote my name and pager number clearly on everything.



 

 

 

[ajm184]

Excellent point on appropriate notes/charting, documentation will be by far the best defense.  Doctor-Patient communication is useful, but not for avoiding lawsuits.  My wife heard this tidbit early in her career; 'expect to get sued at least once in your career'.  My wife is a defendant in a lawsuit and the thing I find most fascinating is it seems like Ortho's are always being sued.  My wife's suit is a number of years old in and no sign of an actual trial.  Welcome to Cook County.

[ENT Doc]

This is complicated and depends on the specialty.  Path and Rads can't be nice to patients or their families.  OB doesn't have the option of offering "no treatment" as an option.  The biggest issues that are alleged at times of lawsuits fall into delay in diagnosis, improper treatment, adverse effect of treatment/surgery, and misdiagnosis (which essentially ends up falling into one of the other 3 categories...you say it's sinusitis but it's actually cancer - that was essentially a delay, improper treatment, and possibly adverse effect of treatment).  For all specialties not listed above the diagnosis is by far the most important thing to establish.  This is, in my mind, what sets us apart from NPs or PAs and why we went to all that schooling.  The treatment is simply an extension of a diagnosis, or a decision based on patient choice after provider discussion of risks/benefits/alternatives.  The hard part is the diagnosis.  The important thing to establishing that is a) knowing an array of differential diagnosis, b) taking the time to think about those differential diagnoses, c) avoiding biases like availability heuristic and conformational bias.  Essentially, reject all prior information given and other patients seen and treat each as a clean slate.  Once you've ruled out the serious things and all else you can think of and still can't get a handle on it, refer for a 2nd opinion.  Don't engage in magical thinking and treat randomly.  Treat when reasonable diagnoses have been established.

As for surgeons and other procedure based specialties, I can only offer what I've found to be helpful on a personal level (but does have some backing in the literature).  Most of what I do is quality of life based, so I'll speak to that alone but the same principles apply in a quantity of life decision.  The patient owns that quality of life, not you.  Never, never, never "convince" them that they need surgery.  Try to debias them if they've come in with all sorts of fantastic ideas about what surgery will offer or that what happened to someone else will happen to them or their child.  It's amazing how many people come in and say "my neighbor had this done and he feels great".  That has no bearing on what will happen to them or the risk/reward trade-off they have to make, but they are biased towards action because of that availability of information.  Make their goals aligned with your goals, make sure they understand the risks clearly (have them repeat...this is a proven debiasing strategy), and ultimately make them make the decision.  There are two competing biases when it comes to filing a lawsuit.  Patients who didn't think they made the decision or weren't counseled appropriately with an adverse outcome will engage in outcome bias, where the decision to proceed to surgery is viewed as poor because the outcome was poor.  This is illogical, but so are humans.  And they will attribute that poor outcome and decision to you if you, in any way, "convinced" them to go to surgery.  If they are forced to make a decision, however, there is a choice-supportive bias that goes on that, regardless of the outcome, they stand by a decision they made.  And be kind, empathetic and look them in the eye when something bad happens - not because you're worried about being sued but because you didn't achieve perfection and affected a person's life in a negative way.  Patients are smart.  They'll see this.

Lastly, diligence.  Diligence would have prevented more errors that I've seen than any other quality.  If you are a diligent individual you'll check your scans, document well, call your patients back with results, document those conversations, thoroughly discuss risks/benefits, etc.  Patients see this as thorough and they appreciate it too.  Hope this helped...someone at least.

[VagabondMD]

My lawsuit risk will decrease by 40% when I go part time in January and by 100% when I retire.

I will freely admit that I am not perfect, and that my lack of perfection, despite making an honest effort, may lead to a lawsuit.

[PhysicianOnFIRE]

In anesthesia, stick to "bread and butter" procedures. The sicker the patient mix, the more complicated the surgical case, the more likely a bad outcome results. If OB can be avoided, that will help, too. I haven't followed these tips all that well, but with the exception of some locums early on, I've avoided the tertiary care centers. Knock on wood, I have not been party to a malpractice lawsuit to date.

It also helps to build some rapport with family and be willing to say "I'm sorry."Or so I'm told.

[Zaphod]

ENT Doc wrote:

This is complicated and depends on the specialty.  Path and Rads can’t be nice to patients or their families.  OB doesn’t have the option of offering “no treatment” as an option.  The biggest issues that are alleged at times of lawsuits fall into delay in diagnosis, improper treatment, adverse effect of treatment/surgery, and misdiagnosis (which essentially ends up falling into one of the other 3 categories…you say it’s sinusitis but it’s actually cancer – that was essentially a delay, improper treatment, and possibly adverse effect of treatment).  For all specialties not listed above the diagnosis is by far the most important thing to establish.  This is, in my mind, what sets us apart from NPs or PAs and why we went to all that schooling.  The treatment is simply an extension of a diagnosis, or a decision based on patient choice after provider discussion of risks/benefits/alternatives.  The hard part is the diagnosis.  The important thing to establishing that is a) knowing an array of differential diagnosis, b) taking the time to think about those differential diagnoses, c) avoiding biases like availability heuristic and conformational bias.  Essentially, reject all prior information given and other patients seen and treat each as a clean slate.  Once you’ve ruled out the serious things and all else you can think of and still can’t get a handle on it, refer for a 2nd opinion.  Don’t engage in magical thinking and treat randomly.  Treat when reasonable diagnoses have been established.

As for surgeons and other procedure based specialties, I can only offer what I’ve found to be helpful on a personal level (but does have some backing in the literature).  Most of what I do is quality of life based, so I’ll speak to that alone but the same principles apply in a quantity of life decision.  The patient owns that quality of life, not you.  Never, never, never “convince” them that they need surgery.  Try to debias them if they’ve come in with all sorts of fantastic ideas about what surgery will offer or that what happened to someone else will happen to them or their child.  It’s amazing how many people come in and say “my neighbor had this done and he feels great”.  That has no bearing on what will happen to them or the risk/reward trade-off they have to make, but they are biased towards action because of that availability of information.  Make their goals aligned with your goals, make sure they understand the risks clearly (have them repeat…this is a proven debiasing strategy), and ultimately make them make the decision.  There are two competing biases when it comes to filing a lawsuit.  Patients who didn’t think they made the decision or weren’t counseled appropriately with an adverse outcome will engage in outcome bias, where the decision to proceed to surgery is viewed as poor because the outcome was poor.  This is illogical, but so are humans.  And they will attribute that poor outcome and decision to you if you, in any way, “convinced” them to go to surgery.  If they are forced to make a decision, however, there is a choice-supportive bias that goes on that, regardless of the outcome, they stand by a decision they made.  And be kind, empathetic and look them in the eye when something bad happens – not because you’re worried about being sued but because you didn’t achieve perfection and affected a person’s life in a negative way.  Patients are smart.  They’ll see this.

Lastly, diligence.  Diligence would have prevented more errors that I’ve seen than any other quality.  If you are a diligent individual you’ll check your scans, document well, call your patients back with results, document those conversations, thoroughly discuss risks/benefits, etc.  Patients see this as thorough and they appreciate it too.  Hope this helped…someone at least.

Click to expand...

Great stuff.

I always make pts take all the responsibility for their surgery. I know lots of people that pick their pts implants, etc...which is simply crazy. Why take that risk of not choosing what they want, people fooling themselves there is a 'perfect' fit. There is whats safe, and if its within pts desires and thats it.

They constantly ask, "what do I need"? I always reply, nothing, no one 'needs' any of this. Make them articulate what it is theyre after, how you can help achieve it, but all big decisions/tradeoffs/responsibilities are theirs. My job is to simply listen and give them the best approach to safely achieve their goals, or redirect them if its not possible or reasonable.

[q-school]

whenever possible, i always make them come back and consent.  i prefer not to obtain consent the same day.  go home, think about it, talk to family if appropriate, call with questions.

come back and we will arrange the paperwork and schedule.

[G]

q-school wrote:

i find the easiest way to avoid lawsuits is to avoid seeing patients.

unfortunately my specialty does not allow for that.

i think you list many good ones.

hard to do all those things well all the time, especially given demands on our time.

i think the one you missed was excellent documentation.  perhaps ensure follow up.  i think there are some parts of the country where it is just plain more litigious than others.  communicating well helps mitigate, but i want to share the story of Dr X.

Dr X, now retired for more than a decade.  Dr X told all his patients one thing.  10% chance you live, 90% chance you die.  Rest up to Jesus.  I still have dozens of patients who think he miraculously pulled them back from the threshold of death for very minor conditions.  To say they think the world of him is to vastly understate things.  I’m still processing how I should use this information to my advantage.

Deposition Y

I received notice that I am something called a respondent in discovery.  This was back in the days of handwritten notes.  so basically they don’t think i did anything wrong but they want me to be named in the lawsuit in case they can sue you later.  So after i finish crapping my pants, and learning i’m not actually being sued, i read the papers they sent.  and the part that strikes me is the bottom of the face sheet, where it includes the list of doctors being sued, and the list of respondent in discovery and then says we reserve the right to sue 11 physicians whose names could not be deciphered.   Again, pondered how to use this information to my advantage for many years.   unfortunately i’m not crafty so i have extremely legible handwriting and wrote my name and pager number clearly on everything.



 

 

 

Click to expand...

qschool has highlighted my plan for avoiding medical liability!  in the ER, I find that the less I work, the less stressed I feel about getting home/moving on to the next patient...I hope that translates to better listening/rapport/outcomes and less lawsuits/complaints.  But ultimately, the less time you spend walking through the minefield....

[MPMD]

In EM I think a lot of the risk comes from being pushed to see people beyond your capacity. Our field is unique in that esp in places w/ limited coverage you may end up seeing way more than what is safe or possible from a quality standpoint.

One thing that I think is great about the place where I trained and now work is that we have a very aggressive philosophy of EM. When in doubt, you rule it out. Don't sit there at your computer talking yourself out of the MR, the LP, the consult, just do it.

There's also a set of dx that cause problems over and over in EM: ACS, missed wound foreign body, pediatric appy, pediatric sepsis, compartment syndrome, stroke. Just being aware of the patterns is helpful.

The incentives in the usa about med mal are just awful. I remember way back in the day there was an EM blogger named PandabearMD* who once wrote, "I am incentivized to bankrupt the entire american healthcare system to avoid getting sued." Pretty cynical but not incorrect.

 

 

* there is a tiny part of me that thinks that Pandabear was WCI's blogging nom-de-guerre in resident.....

[wideopenspaces]

I found out last week I've been named in a potential lawsuit. It's a real bummer and absolutely makes you question your ability as a physician. In psychiatry you are sued every 8 years on average. I'm just entering my 8 the year of practice so I guess I'm average? Anyway, in psych I think the best way to avoid a lawsuit is to document well. We have to prescribe some meds with pretty terrible side effects, so make sure patients are aware of the risks and that you are monitoring these risks. Also make sure you document why a patient is safe to continue outpatient treatment or safe to leave the hospital, esp when it comes to suicidal thinking.