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There are some things in life that just cannot be avoided. Death and taxes many consider to be the most certain, getting struck by lightning for the unlucky few or, for healthcare providers, being sued. More than 17,000 malpractice lawsuits are filed annually in the U.S., the average physician can expect to be sued once every 7 years, and one in 14 doctors is sued every year.
Granted, only 3% of lawsuits actually end up in court, and some specialties more than others seem to be lawsuit magnets. For example, a plastic surgeon has a 99% chance of a malpractice lawsuit by the time he/she is 65. One can be a “perfect” doctor and still get sued, and the effects on the physician and their family can be truly devastating. The emotional and financial toll can be daunting, not to mention the time away from practice, possible damage to reputation, and potential sanctions from state or specialty boards and insurance companies.
There is good news, however. As with any endeavor that carries risk — medical practice certainly being no exception — there are changes in behaviors, certain steps that can be taken, that can mitigate the chances of being sued.
In December 2013, Medical Economics published an article by Susan Kreimer that outlined six simple steps a provider can take in minimizing the risk of lawsuits. These primarily involve communication, documentation, follow-up, bedside manner, education, and consistency. Obviously, there will always be overly litigious, lawsuit-happy patients, and we will forever experience system failures that are beyond a physician’s control. “Stuff happens” might be the family-friendly term for unavoidable mishaps.
However, many of the factors identified are, in fact, under the provider’s control. Research has broken down these factors into percentages. The reality is that problems in clinical judgment, lack of technical skills, poor communication, and faulty documentation are all within the doctor’s control. Put together, these factors comprise the majority of causes contributing to patient injury. Patient behaviors and system failures make up only 34% of the causes.
Documentation of patient encounters is one factor entirely under the provider’s control. Many physicians are choosing alternative ways of documenting in real-time through the use of medical scribes and even by incorporating new technology such as Google Glass. There are serious problems with using the traditional way of interviewing, examining, or performing now, followed by retroactive documentation, either by hand or dictation. A busy doctor simply cannot recall every detail or even decipher which details should be included and which ones are irrelevant and could be left out. It is critical that certain details not be left out, which could later help cover the physician in the event of a poor outcome. For example, one should always explain the why of any clinical decisionand explain why alternative ways were not chosen in a particular case.
So what is the six-step program a provider can practice daily to help avoid a malpractice lawsuit?
1. Improve communication with your patients. Learn to listen, and do not assume anything. Always give the patient a chance to ask questions and then carefully answer those questions in a layperson’s language. Use an interpreter if necessary. Ask the patient to summarize what they have understood about the interview and their care.
2. Always provide informed consent and ensure the patient understands completely the benefits and risks they are about to take with a given procedure.
3. Keep up with best-practice standards through continuing medical education, choosing courses and programs that would be of help in your particular area of expertise.
4. Always follow up with any procedure results or specialist referrals.
5. Keep your office, practice, or organization policies and procedures as consistent as possible, always making sure new employees are trained accordingly and that everyone is on the same page with any changes made.
6. Never, ever avoid an unhappy patient who is complaining about something or one whom you may find unpleasant in some way. There is no better way to ask for a lawsuit than making a patient who is perhaps already unsatisfied or disgruntled even angrier by letting them feel ignored by you or your office staff.
Again, these steps are certainly not a guarantee a physician will never experience a malpractice lawsuit; however, studies have clearly shown that providers who are “nicer,” more attentive and engaging, more concerned, more thorough with documentation, and up to date on their specialties stand a better chance of staying out of court.
Sadly, we do live in a litigious society, perhaps the most litigious than any other nation. In the U.S., the belief is often, “It’s always someone’s fault,” and “Somebody’s got to pay.” Rising malpractice claims along with the attendant rise in malpractice premiums have caused physicians to react by practicing defensively — e.g. over-ordering procedures and over-admitting to hospitals — which does nothing but cause serious strain on an already-overburdened healthcare system. Additionally, it has caused a wave of doctors choosing to go “bare” — i.e. without any malpractice insurance at all, as a way to avoid becoming a target, since patients and their attorneys are often actually going after the deeper pockets of the insurance company. OB-GYN is the pioneer specialty in practicing bare.
This post is not meant to scare anyone as much as to empower healthcare providers. Many doctors feel powerless regarding the issue of malpractice lawsuits, calling on Congress and state legislatures for malpractice reform. While malpractice reform is most definitely needed, there are changes within an individual’s power that can go a long way in reducing the risk of being sued.
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