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.
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
Physician Skills/Continuing Medical Education (CME)
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.
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.
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