In the United States, a patient may allege medical malpractice against a clinician, which is typically defined by the failure the provide the degree of care another clinician in the same position with the same credentials would have performed that resulted in injury to the patient. Even with substantial tort reform surrounding the topic of medical practice, the AMA states that one in three clinicians will be sued at least once throughout their career, with some surgical specialties having an even greater chance of being sued. In the context of malpractice litigation, winning means getting out as early as possible with no judgment of liability against you. Despite 8/10 cases that go to trial for medical malpractice, the physicians ultimately prevail, the clinicians still pays a heavy price since preparing for trial requires substantial time, money, and resources. Due to many clinicians not feeling comfortable openly discussing the topics of medical malpractice, many fallacies exist. This article will further explore some of the topics surrounding medical malpractice.
Functional Elements of a Lawsuit
A simple mistake or error in diagnosis or error during a procedure does not define medical malpractice. To successfully establish a medical malpractice lawsuit, the plaintiff (patient) needs to prove four elements to prevail: causation, a duty to the patient, negligence or breach of duty (derelict), and damages.
- Causation asks the question: Did the act or omission cause the poor outcome? For instance, did the missed sepsis cause the patient’s death, or was the death caused by her history of myocardial infarction from her history of diabetes, hypertension, hyperlipidemia, and smoking?
- This element of medical malpractice is established by proving the physician's direct mistake led to an adverse outcome.
- Duty to the patient asks the question: Did the doctor have a responsibility for this patient's care? Did the call to the cardiologist at 3 o'clock in the morning constitute his duty to treat the patient in the emergency department?
- This element of medical malpractice can be established in various ways, such as proving the physicians were covering the patient for a colleague, responsible provider for medical care, or covering for a clinic where patients are treated.
- Negligence or breach of duty: Was the clinician negligent in taking care of this patient? In some states, the term used is “gross negligence." This does not mean the clinician acted perfectly, but instead, the term concerns the “standard of care” for the community. Standard of care is defined in terms of what care a reasonable physician in the community with similar training and experience would provide for the patient?
- The element of medical malpractice can be established by proving that: such as proving the physician took out an additional organ during surgery, amputation the wrong leg, or a physician who performs surgeries in a non-sterile environment leading to infection may also be derelict in their duty.
- Damages refer to compensation for loss or injury, medical bills, punitive damages, and medical malpractice. This is usually is money paid to the patient or the patient's family. The question in a medical malpractice case is: does the alleged malpractice act rise to the level where money should be paid to the patient? Sometimes, a patient wants an apology from the doctor.
Issues of Concern
Professional Liability Insurance
All physicians must maintain professional liability (medical malpractice) insurance to practice medicine in the United States. Professional liability insurance is purchased to mitigate the financial risk of the liability that results from the physician practicing medicine. Typically professional liability insurance covers errors related to misdiagnoses, delayed diagnoses, childbirth-related injuries, errors in prescribing medications, or errors in administering anesthesia. The financial risks of medical malpractice claims are not limited to judgments awarded to the plaintiff, arbitrations costs, medical damages, punitive damages, compensatory damage, attorney fees, court cost, and fines. The two major types of medical malpractice coverage are a claims-based policy or an occurrence-based policy. An occurrence-based policy will pay a claim on acts of medical malpractice based on the period of when you had the insurance regardless of if you are currently with the policy. On the other hand, a claims-based policy will only cover a payout if a claim is brought against you during the term of the policy. Since a basic claims based policy only covers an individual for acts that occur during the term of the active policy, physicians usually need to obtain or purchase tail coverage, which makes the policy more similar to an occurrence policy, where a physician is covered for prior actions even if the old policy is no longer in effect. Additionally, physicians need to understand if the policy contains a true consent to settle clause. If a policy does not contain a true consent to settle clause, the insurance carrier can settle a claim, without the physician's approval, for a medical malpractice case that may be defendable in court leading to an entry in the National Practioner Data Bank (NPDB).
There are several recurring themes in malpractice cases that doctors should always consider. These categories are patient care/diagnosis, referral, communication, documentation, physician skills, and protocols/guidelines.
Patient Care and Diagnosis
- Practice good medicine: Try to treat every patient as if it were your family member, even though this may be difficult with some patients. Make the patient feel that you care.
- See your patient: If a patient has a problem, see and touch the patient. If a surgeon operates on a patient, he needs to see and lays hands on the patient if there is a problem. If a hospitalist is caring for a patient on the floor, and the patient has a problem, do not only talk to the nurse about the patient but also see and examine the patient. Many malpractice cases arise from the patient complaining of pain, fever, vomiting, dyspnea, diaphoresis, weakness, change in mental status, or bleeding, and the doctor does not see the patient for hours, if at all. Defending these physicians in court is difficult. It is easier to defend a physician who cares, empathizes, and interacts with their patients.
- Respond quickly to a medical emergency and document these times: These simple acts, response time to the emergency, the time the clinician began to care for the patient, and recording vital signs often are not documented during an emergency.
- Know the community standards and follow them: Do not cut corners under any circumstance. If a test is required, get it. The cost of an expensive test is cheap compared to the financial and emotional costs of a lawsuit.
- If the patient fails to respond to therapy, look at the patient again and treat with another agent, or refer the patient to a specialist: This is one of the most common threads we see in malpractice cases; if the therapy does not work, change it, or get some help.
- If you order a test, make sure you see the results and interpret those results: Do not depend on nurses, mid-level providers, or medical assistants to interpret tests you order. Look at the results, including all imaging, even if the radiologist reads it. If there is a question, call the radiologist or consultant about the test. Never allow a test to be entered into a chart or electronic medical record without seeing it.
- Postoperative fever is almost never viral: Many lawsuits included a postoperative fever attributed to a virus until the patient died from abscess and sepsis caused by the operation. Always find the source of a fever.
- Always think about the worst-case scenario: What is the worst thing this patient could have? Anchoring bias or focusing on one diagnosis can lead to the wrong diagnosis. Keep an open mind, consider the worst possible thing the patient could have, and rule it out with exams, tests, or referrals.
- Team treatment of the patient needs a captain or someone who will gather all the data and be in charge of treating the patient: Multiple malpractice cases stem from no one directing the care of a complicated patient, particularly hospitalized patients. This is particularly a problem when a patient has subspecialty surgery and develops a medical problem after surgery.
- Never skip monitoring vital signs during procedures, particularly if the procedure occurs in the emergency department or on the hospital floor.
- Coumadin is a particular problem in many malpractice cases: If your patient is on coumadin, get the INR checked at a coumadin clinic, if at all possible.
- Involve consultants if needed: Doctors can not know everything; hence, they should not be afraid to get help by consulting experts in another field. Document the discussions. There is a saying in the medical malpractice defense world, “the best doctors are the ones who call for help when they need it.”
- Explain to the consultant precisely what you want him to do for the patient and record the exchange.
- Often, it is worthwhile to get a fresh perspective on difficult cases: Let go of ego; it gets in the way of seeking outside advice.
- Midlevel providers (MLP) are an integral part of medicine, but they work under a physician’s license. The physician is responsible for the care delivered by the MLP. If a lawsuit is filed, the plaintiff will focus on the supervising physician, based on the legal doctrine respondeat superior.
- Communicate well: Talk directly to not only your patients but also their families and other interested parties. Explain your thought process. Ask them if they have any questions. If this is done and documented, the physician often wins the lawsuit.
- Talk directly to consultants: Call them directly and discuss your concerns with the patient. Do not rely on the medical record or electronic medical record (EMR) to relay concern for the patient. Write in the chart that you had those discussions and what you said. Many lawsuits arise from one excellent physician having no idea what the other consultants are doing on the case because they do not talk to each other. All the physicians involved get named in the lawsuit, and many cases can be avoided if the consultants had picked up the phone and talked to each other. This is a repeated theme in medical malpractice lawsuits.
- Weekends, holidays, and nights are a particularly treacherous time for physicians because of a lack of communication: Many lawsuits are filed because the physician covering the weekends, holidays, or overnight failed to communicate. Turnover and checkout should be thorough and complete.
- EMR is a ubiquitous form of documentation, and a practitioner should be well-educated about EMR. It has benefits and problems.
- Do your charts on time. This is critical. Plaintiff attorneys ask for the timed history of when the chart was completed, and this is recorded on every EMR. A common question is: “So doctor, what did you eat for dinner two nights ago? Oh, you don’t remember? So how can you tell me and the jury that you remember this patient when you completed the chart 6 days after you saw the patient?"
- Do not “cut and paste” in the electronic health record. This reveals to the jury that a clinician did not care enough to type personal impressions of the patient or gives the impression that the doctor did not see the patient at all. Clinicians must document what they see in detail. Detailed work helps tremendously if something bad happens to the patient.
- While costly, medical scribes help with efficiency, documentation, and productivity.
- Templates and macros are not good. If you use them, edit them 100% of the time to meet your specific encounter with the patient. If your macro or template contradicts a previous note or entry, the jury will think the doctor is lying. Plaintiff attorneys can uncover templates and macros.
- If you use a macro for the patient's differential diagnosis, make sure you have ruled out or explained every disease listed in the macro or explain why you did not rule it out.
- Patient noncompliance with physician-recommended testing or treatment is an emerging problem. Suppose the patient refuses a test, imaging, or treatment; document in detail that you discussed the potential consequences, including death, of noncompliance. Medication noncompliance is a particular issue.
- Pay attention to medication alerts in the EMR. We have seen multiple cases where a medication interaction/allergy alert has fired, and it was repeatedly ignored, resulting in a poor patient outcome.
Physician Skills/Continuing Medical Education (CME)
- Treat nurses and allied healthcare providers with respect. Many malpractice cases have been won or lost based on the statements of nurses and other providers. Support is vital.
- Keep up with medical education and skills in your field through CME or CEUs. Do not let board certification lapse. The first thing a plaintiff attorney asks about is schooling, training, and certification.
- Never use social media in patient care, particularly Facebook. This is considered an extension of the patient’s chart. The government vigorously pursues HIPAA (Health Insurance Portability and Accountability Act of 1996) violations.
- Be extremely careful about providing medical care to friends and family members. You must have an established medical relationship with the patient.
- Never change a medical record after the fact, particularly after an adverse event with a patient. If a pertinent fact comes to mind, clearly state when you remembered the fact and entered it into the chart as a “late entry.”
Protocols and guidelines help because they are approved by large numbers of doctors from different fields. Explain when you chose not to use the protocol or guideline. It is fine to deviate from established protocols; however, always explain the medical reason for doing so.
What should I do if I am sued?
Step 1: Inform your medical malpractice insurance carrier or risk management division of your hospital. Take a deep breath, understand that there is over an 82% chance that you will prevail at a trial, and remember malpractice is just a cost of being a doctor, and in many instances, you have done nothing wrong.
Step 2: Research your attorney options and remember to educate them on the case, and be honest with yourself about the quality of care you provided to the patient. Remember, do not discuss the case with anyone besides your attorney; you are protecting your reputation and not others.
Step 3: Ensure your attorney has the basic medical information that the plaintiff's attorney will have.
Step 4: Do not access the medical records until directed by your insurance carrier or attorney.
Reports indicate that medical malpractice-related costs are almost $60 billion, or between 2% to 3% of annual healthcare spending. This total does not include all the medical costs incurred from defensive medicine, such as unwarranted tests and treatments to avoid lawsuits.
Often, there are situations when a malpractice claim is necessary. The reasons might be beyond the clinician's control; nevertheless, most malpractice cases arise from preventable events. People commonly believe that all malpractice cases stem from gross errors, yet, in truth, many times, mistakes are simple. A clinician-patient relationship should be founded on understanding a situation and managing details that can be controlled to avoid complications from unexpected events.
Enhancing Healthcare Team Outcomes
The crux to avoiding or defending against malpractice is the execution of medical duties following established guidelines and practices, keeping detailed, accurate, and meticulous records ("If it is not recorded, then it never happened"), and maintaining open communication channels between all members of the healthcare team so that problems can be prevented before they occur, or addressed promptly when that is not possible.