Why we've never been sued for medical malpractice


By:Ralph D. Caldroney, MD
The doctor who has never been sued is a rare breed whose numbers are dwindling. I know this because I've served as an expert witness for the defense for more than 10 years, with increasing frequency. My legal experience has broadened my insight into what patients and plaintiffs' attorneys consider to be grounds for a malpractice action. It has also made me question why our six-doctor internal medicine/rheumatology practice has never had a malpractice claim filed against it in almost 30 years of existence. Is it just blind luck?
I've reviewed too many cases in which competent, knowledgeable physicians were sued because of patients' unrealistic expectations to deny that luck is a major factor (knock on wood!). But I can also say with certainty that we've created a system with multiple fail-safes that lowers our risk.
You can do it, too. Here are the major components:
Document, ad nauseam. The most common trigger for a malpractice case against a primary care doctor is failure to diagnose. I doubt that our diagnostic acumen is any better or worse than the norm, but I know we spend considerably more time and effort than most of our peers in documenting our thought processes. We pay extra for the luxury of in-house transcription. In return we get legible notes with minimal turnaround time. This allows us to individualize our notes much more than is possible with the boilerplate that emanates from many electronic health records.
As an example, the note that reads "chest pain; plan stress test ASAP" will not hold up in court if the patient suffers a major cardiac event in the interim. Compare that to my appraisal of the patient's chest pain: "I doubt it's ischemic, but in light of the multiple cardiac risk factors, we'll proceed with a stress test ASAP; in the interim, if the patient's symptoms intensify and/or he develops symptoms at rest, we're to be notified immediately." We follow this with the details of any medications we've prescribed and tests we've ordered. Remember, the rule in court is, "If it isn't written down, it wasn't done."
We also attach color-coded, task-specific adhesive messages to charts to document prescription renewals, patients' questions, and our instructions. We record the time the message was generated as well as the time we responded to it and what we recommended (i.e., "Please come back to the office for further evaluation").
Review everything in the chart. We have a rule: Absolutely nothing goes into the permanent chart until a physician has reviewed and signed off on it. That means all notes, labs, radiology reports, communications from consultants, and hospital reports must be initialed. We do this to ensure that an abnormal mammogram or PSA, for example, does not go unattended.
Communicate with patients. This sounds trite, but it's incredibly important. We make a tremendous effort to have incoming calls answered by a person, not a machine, and to respond as quickly as possible. Usually we return a call within a few hours—but not before the entire chart is pulled and placed in the doctor's message stack. This takes a little more time, but having the chart on hand when the call is returned heads off a lot of problems.
We also write letters to new patients and to established patients who come in for their annual exam. This provides both written reinforcement of our plans for treatment or follow-up and documentation in case our actions are challenged.
Be available. We typically see patients on the same day for urgent problems; and, even on heavily booked days, we try to work in those with nonemergent conditions who call and ask to be seen as soon as possibleMoreover, we provide both inpatient and outpatient care, which seems to be a dying combination in primary care. This sense of commitment serves us well in another sphere that plaintiffs often mention when asked why they sue—a feeling of abandonment. This isn't to disparage hospitalists, who can be a godsend to a busy primary care physician. However, patients and their families usually want their doctor, whom they know and trust, to be available instead of an unfamiliar hospitalist, no matter how capable he may be. The trade-off for us, of course, is the grind of call, but I'd rather spend an evening in the ED than a morning in court.
Triage. We triage as much as possible "in the flesh," not via phone. That is, we prefer to see patients before sending them to a specialist or to the ED (except in a true emergency, of course). While this leads to busy schedules and grumbling from patients, it's good medicine and can provide a good defense.
Plaintiffs' attorneys like to argue that the magic of a referral would have avoided the adverse event. While I question this bit of wisdom, it's often what laypeople expect. So we're liberal with referrals, even when we recognize that they're done for peacekeeping purposes and to satisfy a family's desire for a second opinion.
Triage also extends to patients who push for perennial long-term prescription refills without being seen. We politely but firmly insist that such patients come into the office at least once a year. Again, this isn't just good medicine but also a way to avoid trouble. Triage extends, too, to our decisions to hospitalize. In general, we err on the side of caution. While this involves a considerable hassle factor (especially with health plans' hospital authorization processes), it reassures patient and family that we're doing everything we can.
Stay current. Peer pressure, unspoken but evident, makes us stay current, not just within our practice but within the referral network at our tertiary care hospital. If you don't know what the standard of care is for your community, you can't strive to attain or surpass it. We're diligent about CME, too, and we educate each other and the staff about emerging trends. We do not let insurance companies tell us what's expected as to the care we deliver. Being proactive rather than reactive requires many extra hours of nonreimbursed time and effort, but it has saved us more than one afternoon in a deposition with an aggressive plaintiffs' attorney.
Practice health maintenance. While it seems evident that a patient who's 5 feet tall and weighs 222 pounds, smokes two packs a day, and can out-drink a very large fish can't help but be aware that his lifestyle is high risk, I've been amazed at how many plaintiffs' attorneys and jurors assume that it's our responsibility to be the lifestyle police. You must document your efforts to alter unhealthy habits, no matter how futile and repetitious you think they are.
We also encourage patients to undergo screenings and procedures with proven benefit: colonoscopies, Pap tests, mammograms, etc. Admittedly, some routine interventions, such as PSA screenings, lack proof of survival benefit. But we order them because patients consider them part of the standard of care. And, like many practices, we use a health maintenance flow chart to remind us of what has been done and what's due.
Weed out bad apples. In my experience, patients and families whom no one can make happy are the people most likely to sue. So on occasion we dismiss them. Yet "firing" a patient should be done tactfully, selectively, and infrequently.
In the chart, document your reasons for letting a patient go, using neutral, noninflammatory language. Keep the dismissal letter as "plain vanilla" as possible, and include an offer to transfer records and assist in finding a new physician and a guarantee that you'll provide emergency care for a specific length of time—usually 30 days.
Consider extrinsic factors. With my legal experience, I now pay more attention to the quality of the legal representation our malpractice insurer provides than to the cost of the premiums. I want a carrier that's loath to settle and will vigorously defend valid cases.
I could enumerate many other extrinsic factors, such as the quality and scope of your area hospitals and the local malpractice climate. However, controlling your internal environment and adopting a defensive position within your own practice will yield far more gains.
As you probably realize by now, our system doesn't come cheap. Part of the cost is paying for quality staff in adequate numbers. We likely exceed the norm for a group our size; consequently, our overhead is higher than that of many of our competitors. Much of the price is paid indirectly, through those extra, unreimbursed hours spent on documentation, communication, triage, patient management, and self-education. These may be a drain on our time and energy, but they've helped us avoid legal entanglements. Even so, I'll knock on wood again.