Minimizing the risk of medical malpractice

Jay A. Fradkin is an attorney with Jennings, Strouss & Salmon, P.L.C.

Jay A. Fradkin is an attorney with Jennings, Strouss & Salmon, P.L.C.

There is, of course, no way to eliminate a medical practice’s risk of being involved in a malpractice lawsuit. There are, however, a number of ways to minimize the risk of untoward events and put your practice in the best possible position to defend against a medical malpractice lawsuit. Below are some tips from the perspective of a medical malpractice attorney with over 30 years of experience defending claims against medical practices:

Do your best to ensure the patient does not feel like either of you are being rushed through an appointment:  Everyone is busy; however, communication is probably the number one factor in good doctor-patient relations. It is important to impress upon patients that you are have the time to listen and respond to their concerns. This is not only important in providing appropriate care, but it is also important in the event of a less than desirable outcome. A patient may be less likely to file a malpractice lawsuit against a doctor who they felt made time for and listened to them, even if they are not happy with the treatment.

Practice good documentation and follow-up procedures:  Although the “standard of care” does not require any particular method of documentation or follow-up procedures, poor practices in either or both areas can lead to poor outcomes, as well as less defendable lawsuits. Keep clear records, preferably in a “SOAP” format. If feasible, dictate or type rather than handwrite your records for clarity. Stay away from “template” medical records, particularly those that “default” to repetitious notes from one visit to the next, which may carry limited credibility as to what really happened during a visit. Be sure to always document informed consent discussions, as well as a patient’s refusal to follow recommendations for testing and/or treatment. Although not necessarily always required by the standard of care, implement some type of “tickler” system for at least the most important diagnostic tests to ensure that either the patient has followed through with getting the testing, and/or that your office has received the test results that have been ordered. At a minimum, advise patients to contact your office if they have not received test results within a certain time period, and be sure to document that the instruction was provided to the patient.

Send reminder letters to patients:  Again, although not necessarily required by the standard of care, a good practice is to send “reminder” letters or notices to patients that they are due for a follow-up appointment or routine medical tests. An automated system with a number of form letters that fit the appropriate reminder can easily be created along with a system that “flags” those patients for whom a reminder is due. This is another way to attempt to avoid patients “falling through the cracks,” and also makes it much easier to defend a malpractice lawsuit for an alleged failure to “follow-up” with a patient.

Never change a medical record after the fact:  Experience has shown that, for some practitioners, the urge to go back and make the medical record “better” after a poor outcome or, even worse, after a legal claim or suit is filed, is irresistible. We have seen everything from cross-outs, white-outs, “write-ins,” “re-written” records, and “addendums”; all efforts to “clarify” what “really happened” at that (now) all-important office visit during which the (alleged) informed consent conversation, the appropriate (but rejected) treatment recommendation, etc., purportedly occurred. Suffice to say that such a practice is not only professionally inappropriate, but it can make a bad case worse, and a defendable case virtually indefensible in front of a jury. It can also jeopardize your insurance coverage, if not for the case at issue, certainly for future insurability. Simple rule: it is better to live with a less than ideal medical record than a falsified one, so leave it alone!

Do not ignore bad patient outcomes:  There is a widely-held belief that one of the main reasons that many lawsuits are never filed, even after terrible outcomes, is because the physician communicated appropriately with the patient or family in a timely fashion, acknowledging the event, showing empathy for the outcome, offering any possible assistance to the patient or family, and, in short, showing a “human” response to the patient’s misfortune. Conversely, it is striking the number of times we observe in medical malpractice lawsuits that the physician never communicated, or even attempted to communicate, with the patient or family after the occurrence, giving the impression of a less-than-caring physician. Many plaintiffs in such cases have been heard to say that the main reason they sued the doctor is that “he never called to see how I was or to say he was sorry for what happened.” Showing empathy will only serve to minimize the chances of a suit, and it will not be used against you should the matter proceed to court; it is not an admission of liability, it is simply the human thing to do, and any jury will understand that.

Keep in mind that, as medical professional, you may be sued regardless of how carefully and competently you practice medicine, or how humanely you treat your patients; however, there are ways to decrease the likelihood that you will be sued and, if the inevitable happens, will give your attorney a much better argument that you are not liable.

Jay A. Fradkin is an attorney with Jennings, Strouss & Salmon, P.L.C. He is chair of the firm’s Healthcare Litigation Department, and a litigator with extensive trial experience in the areas of medical and professional malpractice defense, products liability, personal injury defense, and insurance defense. For more information, visit www.jsslaw.com.