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.

Man: NY Hospital Forced Rectal Exam


NEW YORK (AP) — A construction worker claimed in a lawsuit that when he went to a hospital after being hit on the forehead by a falling wooden beam, emergency room staffers forcibly gave him a rectal examination.
Brian Persaud, 38, says in court papers that after he denied a request by NewYork-Presbyterian Hospital emergency room employees to examine his rectum, he was "assaulted, battered and falsely imprisoned."
His lawyer, Gerrard M. Marrone, said he and Persaud later learned the exam was one way of determining whether he had suffered spinal damage in the accident.
Marrone said his client got eight stitches for a cut over his eyebrow.
Then, Marrone said, emergency room staffers insisted on examining his rectum and held him down while he begged, "Please don't do that." He said Persaud hit a doctor while flailing around and staffers gave him an injection, which knocked him out, and performed the rectal exam.
Persaud woke up handcuffed to a bed and with an oxygen tube down his throat, the lawyer said, and spent three days in a detention center.
A request by the hospital to dismiss Persaud's lawsuit was denied by Justice Alice Schlesinger, who ordered a trial to start March 31.
Hospital spokesman Bryan Dotson said, "While it would be inappropriate for us to comment on specifics of the case, we believe it is completely without merit and intend to contest it vigorously."
Persaud's lawsuit, filed in Manhattan's state Supreme Court, seeks unspecified damages. A judge dismissed a misdemeanor assault charge against him.

Demystifying malpractice risk


Dr. Gerald Hickson

Lack of information leaves physicians prone to misconceptions about their relative risk for malpractice suits, says Dr. Gerald Hickson, professor and vice chair of Pediatrics. In one study Hickson questioned a sampling of doctors who were all above the 94th percentile in terms of individual risk for malpractice suits.

“They all said their risk was average,” Hickson said.

Prone to suits year after year, these doctors thought it was simply the luck of the draw, that certain types of patients are more prone to sue and they happened to have more of these patients. These doctors were doubly mistaken, said Hickson, who has found that year in and year out the same doctors attract a disproportionate share of malpractice suits, and that six percent of doctors attract 40 percent of suits and generate 85 percent of malpractice losses.

Over the past 15 years Hickson has studied questions related to malpractice, including what motivates patients to bring suit, which types of patients are most apt to sue and which types of doctors are at greatest risk. He has found that 85 percent of malpractice claims are invalid, and that neither technical competence nor patient severity is a significant determinant of the risk of malpractice suit. “All doctors have patients who experience adverse events,” Hickson said. “What sends people to lawyers are perceptions, not necessarily medical facts.”

A central conclusion of Hickson’s research is that inability to establish rapport with the patient is a root cause of increased risk of malpractice suits. This finding resulted from Hickson’s identification of a surrogate identifier for malpractice suit risk. He recalls one day receiving a patient complaint forwarded to him by VUMC patient affairs. “I told myself Mrs. ‘Smith’ was having a bad day.”

But something in the language of the complaint gave him pause, reminding him of interviews he had done with Florida families who had brought malpractice suits against their doctors.

Hickson contacted patient affairs and learned they had five years of unsolicited patient complaints on file. Studying these files, he found that 10 percent of doctors generated 50 percent of patient complaints, and checking the distribution of complaints against the distribution of malpractice suits turned up obvious connections that have since been born out at other medical centers. (Hickson eventually arrived at three strong predictors for malpractice suits; these findings and a related editorial will appear in a June issue of the Journal of the American Medical Association.)

With malpractice insurance costs on a steep rise, Hickson and research partner Dr. Jim Pickert, associate professor of Medicine, were impelled by their findings to design a program to help medical centers lower risk for malpractice suits. They created a method to assign risk scores to doctors, and a program to educate high-risk doctors. The system involves software for coding patient complaints and running risk reports. The system is being used at 11 medical centers, ranging from a major academic health center to regional hospitals in rural Arkansas.

The system was recently adopted for use at VUMC by the Medical Center Medical Board, which has established the Patient Complaint Monitoring Committee. Risk scores will be calculated annually for all VMG clinicians and interventions undertaken with clinicians above the 94th percentile for individual risk.

• Well-regarded doctors are selected for training; they take the message about malpractice suit risk to their high-risk peers. The first intervention is strictly informative, with peers showing high-risk clinicians their risk for suit relative to VMG and to other clinicians in their specialty. Clinicians also receive a packet of the research on malpractice suit risk.

• If over the next two years the clinician’s complaint status does not improve, as a second-level intervention the department chair will be brought in to help tailor a program to identify and ameliorate the sources of patient dissatisfaction.

• As a third intervention, the institution’s leadership will have various options for corrective action as set out in the Vanderbilt faculty manual.

“Having high risk for malpractice suit doesn’t mean that you do not have outstanding medical skills,” Hickson said. “All of this in the end is about meeting patients’ needs. The better we are at collecting and using complaints, the better off we’ll be. The Chinese have a proverb: ‘In every complaint is a nugget of gold.’ Our culture isn’t always good at extracting the usefulness from complaints. We need to do better.”

Neurosurgeon shortage critical

By Jennifer CalhounStaff writer

As of Monday, Fayetteville will only have a neurosurgeon on emergency call three days a week. The rest of the time, patients who may need emergency brain surgery will be sent to UNC Hospitals at Chapel Hill.
Cape Fear Valley Health System previously had neurosurgeons on call 24 hours a day, seven days a week through an exclusive agreement with Carolina Neurosurgical Services, a group of four brain surgeons — the only ones in town.
Earlier this month, however, one of the group’s surgeons, Dr. Rene Kotzen, voluntarily gave up privileges at the hospital to lower his high malpractice insurance costs, said one of the group’s leaders, Dr. Carol Wadon.
As a result, the group told the health system it could no longer provide around-the-clock coverage of the emergency room.
“I think the problem is that the emergency room has become busier, and we have gotten older,” Wadon said. “And with malpractice going up, it’s almost impossible to keep the business going.”
Dr. Jim Hunter, Cape Fear Valley Health System’s chief medical officer, said head trauma patients in the region who need surgery on the days a neurosurgeon is not on call will be flown to UNC by helicopter or taken by ambulance.
“What I’d like the public to know is that they will get care,” Hunter said. “I don’t want to send a panic through this community that we can’t give care.”
The health system also could look into forming an alliance with other medical centers or teaching hospitals, said Joyce Korzen, the health system’s interim chief executive officer.
Southeastern Regional Medical Center in Lumberton has a similar agreement with Duke University Health System.
Beyond that, Korzen said she hopes to solve the problem by using a collaborative approach that would include recruiting neurosurgeons and working with Carolina Neurosurgical to find ways to deal with the shortage.
Hunter said the shortage of neurosurgeons is a problem that’s been going on across the country for years.
With only a hundred or so doctors in the specialty graduating every year, competition to recruit can be stiff.
In Fayetteville, it can be almost impossible, Wadon said.
“About one out of every 10 (neurosurgeons) I interview over the phone actually come here to interview,” she said.
Fayetteville’s reputation as a military town and long hours working as an on-call trauma physician at the emergency room don’t help recruitment efforts, she said.
In addition, the practice receives low reimbursement rates from Medicare, Medicaid and Tricare — the insurance plans held by about 70 percent of their patients.
But Wadon said she believes the biggest problem with recruiting neurosurgeons comes from the fact that North Carolina is one of 12 states that has not passed significant tort reform legislation. Passing reforms could reduce damages awarded to patients from medical malpractice lawsuits or cap them at $250,000. The reforms also could keep doctors’ insurance rates from rising.
With those reforms, Wadon said she believes it would offer a more hospitable environment for neurosurgeons, who pay some of the highest premiums for medical malpractice insurance.
Dick Taylor, CEO of the North Carolina Academy of Trial Lawyers, disagreed.
“We recognize that there really are issues with malpractice insurance rates, and that it is unregulated,” Taylor said. “But we also need to make medicine safer. To take away the incentive to make it safer is the wrong way to go.”
Tort reform, he said, would also bring an economic advantage to an already privileged class at the expense of people who have been catastrophically injured because of medical malpractice.
The “privileged” moniker is one that Wadon and her group members — Drs. Bruce Jauffmann and Kim Koo — take exception to.
“Every year, we wonder if we’re going to be able to stay open,” Jauffmann said Friday.
Wadon added: “People think we make millions of dollars, but that’s not true.”
With reimbursements low and malpractice insurance costs high, Jauffmann said they’ve been taking hits from all directions.
It was the combination of those hits that ultimately caused Kotzen to bow out of surgical work at the hospital, Jauffmann said.
Kotzen’s yearly malpractice insurance costs had reached the upper six figures, making it impossible for him to continue performing surgeries, Wadon said.
And while Kotzen will continue to see patients in his office, his current malpractice insurance will not cover him if he performs surgical procedures.
Wadon said Kotzen’s surgical malpractice insurance was high because of previous lawsuits in New York.
According to the New York State Physician Profile Web site, Kotzen was sued in at least three different medical malpractice cases in Kings County, N.Y., in the late 1990s and early 2000s.
One of the incidents involved Kotzen operating on the wrong side of a patient’s brain, according to a Feb. 26, 2001, article from The New York Times. Another neurosurgeon had prepped the wrong side of the brain, and Kotzen began the operation on the wrong side, the article said. He recognized his error and resumed the surgery on the correct side of the brain.
Wadon said some of Kotzen’s suits were the result of working in a state with very high rates of malpractice lawsuits where liability was spread to everyone involved with the surgeries.
With Kotzen out of the picture and no new neurosurgical recruits in sight, trauma patients in the region could be compromised, Wadon said.
And much of that comes down to whether the state passes tort reform, she said.
“We’re just the canaries in the coal mine,” she said. “This could happen with other specialties, too.”