Do Your Part
Good doctors need to be “good
insureds” to receive the
maximum benefit from their malpractice policy investment.
maximum benefit from their malpractice policy investment.
Just as your patients’ health is
best assured when they take positive, pro-active roles in
prevention, treatment, and recovery, it is extremely important
that you also take pro-active steps to prevent, mitigate, and
lessen the likelihood of losing malpractice claims and
lawsuits.
The premiums you pay
for your malpractice policy are for future
service—assistance when you find yourself involved in a
medical malpractice claim or lawsuit. Those three
elements—prevention, mitigation, and minimization of
damages—will give you the most value for your medical
malpractice investment. Although most physicians do not see
their premiums as an investment, I submit that it is an
integral part of an investment strategy called risk management.
You are maximizing the return on your investment of hard work
by minimizing the risk of losing all or part of those returns
due to a malpractice claim.
Most insureds think of
risk management solely in terms of prevention. While prevention
is certainly a key element of the risk management process, it
is only one part of the strategy.
All physicians like to
think they will not be sued for malpractice. However, the
quality of your practice does not totally insulate you from
litigation. I represented a group of world-renowned
cardiovascular surgeons—their practices set the standard
of care. Yet, at one time or another, each and every one was
named in claims and lawsuits. These claims rarely were for
culpable errors but rather for unrealized expectations and
failure to achieve results only “higher powers”
have the ability to achieve. The point is that no physician is
immune from claims and lawsuits. Therefore, mitigating and
minimizing damages are also extremely important aspects of risk
management.
What follows are
suggestions on how to be a Good Doctor from from an insurance,
law, and risk management perspective.
Prevention
Good Doctors think of their patients as
customers, says Layton (Butch) C. Severson. Severson is the
founder and principal of LC Severson Co. Inc. a Columbus,
Ohio-based claims and risk management consulting company. He
believes that bad customer relations causes more lawsuits than
negligence.
He offers these customer relations tips
for Good Doctors:
1. Good
customer relationships begin at the front desk with the
receptionist. The patient has a right and expectation to be
able to contact the doctor within a reasonable time.
2. The billing
department needs to keep the doctor informed of any complaints
or questions regarding billing. A disgruntled patient, right or
wrong, is a lawsuit waiting to happen, and the first indication
of an error, real or perceived, may well be a refusal to pay
the bill.
3. Courtesy
and patience can be rare commodities at times but they always
pay big rewards.
4. Honesty
is always the best policy. While the Good Doctor knows when to
withhold certain detrimental information from the patient,
disclosure is usually the best practice. When certain
information needs to be conveyed to family members or care
givers, be sure to obtain permission from the patient and
document the consent.
5.
Respect confidentiality. Not only is it the law, but lack of
confidentiality can also be extremely damaging to the patient.
The entire office staff needs to be sensitive to
confidentiality issues, as well as laboratory and other patient
care providers.
6. Avoid
office delays. A patient who has to wait more that 30 minutes
for a scheduled appointment will not be the best patient when
they are finally seen—their vitals may not reflect their
true health and an angry patient is rarely a good listener.
7. Call
backs should be made promptly and notes should be entered into
the patient’s chart summarizing the discussion. Any
problems should be called to your attention.
8. Lab
results should be communicated to the patient promptly and a
hard copy of the results provided to the patient.
9.
Follow up with outside testing agencies for lab results.
Maintaining good
customer relationships does not mean, however, that you must
accept or retain any patient, regardless of the patient’s
demeanor and behavior. (Remember when Elaine in the
“Seinfeld” television comedy became a
“problem patient” and couldn’t keep a
doctor?) Terminating a patient should be done over a reasonable
length of time and in writing, with proper documentation.
Mitigation
When a malpractice claim or suit occurs,
it is crucial that you have a good medical record to document
and substantiate your treatment plan. These are also practices
Good Doctors follow to help prevent claims and lawsuits and
mitigate or reduce damages:
4 The
medical record is THE only record of what is done or not done
in the care of a patient—if it is or is not in the
medical record, it did or did not happen. Proving otherwise is
extremely tenuous.
4 Use
the documentation techniques and guidelines that your medical
specialty protocols demand.
4 Keep
the medical record up to date. The time of a request for a copy
of the medical record is not the time for adding late notes. If
the patient has to be transferred or an on-call physician needs
to review the chart, there must be an accurate, current picture
of this patient’s condition in the record.
4 Writing
legibly is mandatory, not only in charts but also
prescriptions.
4 Good
Doctors and their staffs know that the medical record becomes
the prime document in a medical malpractice lawsuit and should
never be altered. Write, date, and sign additional notes to
correct errors.
4 Never
include billing notes in the physician progress notes.
4 Enter
only factual information or medical opinion—it saves
later embarrassment and criticism by plaintiffs.
4 You
may receive requests or court orders for medical records. Many
requests for medical records are for other than medical
malpractice actions. However, you need to comply with all of
these in a timely fashion. Make certain that you copy what you
send in the event more is added to the chart later—you
know what was sent.
John Kerr is an attorney
and the vice president of risk management for PrimeCare Medical Inc., a Harrisburg, Pennsylvania-based correctional
medicine provider. He advises physicians to be thorough in
their diagnoses and treatment. While he should avoid the
defensive medicine tactic of ordering redundant or unnecessary
tests, the Good Doctor should be very aware of the standard of
care and be certain enough to defend every decision at a
deposition, if necessary.
Kerr adds that the
Good Doctor is not afraid to consult other physicians who may
have more experience or expertise in a given area. He also
emphasizes documenting your treatment decision in the medical
record as soon as possible after seeing the patient. It makes
the treatment decisions easier to defend.
Minimization
Sometimes bad things happen or someone
thinks something bad has happened. At some point, even the Good
Doctor gets that dreaded telephone call or claim letter from a
patient or her attorney, or is served lawsuit papers by the
process server alleging malpractice. Or, the Good Doctor may
become aware of an untoward event or unexpected adverse
outcome. The Good Doctor’s job now is to minimize the
potential damages resulting from the allegation or event.
If you are presented with a claim or
served suit papers, do not, under any circumstances, talk to
the plaintiff’s/ insured’s attorney about the claim
or lawsuit. Do three things immediately:
1.
Consult your professional liability policy for the protocols to
follow in the event of a claim or suit. Even an incident,
occurrence, or untoward event may require certain actions on
your part. While a Good Doctor will have read the policy before
it was purchased, it pays to review it again. Every policy
contains a section, usually called “Conditions,”
which has a subsection called “Insured’s Duties in
the Event of a Claim or Suit.” It will tell you what you
need to do. Failure to comply fully and in a timely manner may
jeopardize your defense and malpractice coverage.
2.
Contact your malpractice carrier or broker as soon as possible
and report the claim/suit to them in accordance with policy
protocols referred to above.
3.
Secure the medical records of the patient involved and avoid
any temptation to alter the record. An otherwise defensible
lawsuit is a lost cause if there is any evidence of record
tampering or concealment of facts material to the case.
Your insurance carrier
will assign a claims representative to work with you on the
claim and will be available to answer any questions you have.
That person is a trained professional who will communicate with
the defense attorney and others involved in your case. Remember
that the defense team is provided to defend you in the legal
action—they need to be dealt with openly and honestly. If
you have questions, do not hesitate to ask for clarification.
If at any time you feel uncomfortable with an aspect of your
defense or a member of your defense team, you must communicate
that to the carrier in an appropriate and professional manner.
Should you become
aware of an untoward event, or possible untoward event, you are
legally obligated to fully disclose those facts to the patient
and/or her family. Severson advises that, if afforded the time
(as opposed to, for example, where a death occurs during
surgery), that you step back and reflect on the facts and
circumstances. Discuss the issue with a colleague, the hospital
risk manager, or your insurance carrier claims or risk manager.
After a calm, rational evaluation, then full, truthful, factual
disclosure and even an apology is
appropriate—”I’m sorry this occurred. How can
I help?” Note: A confession—”It’s
my fault!”—is not appropriate, even if you are
convinced that you are at fault.
Many physicians fear
the legal process and lawyers and tend to fight the system,
says Kerr. He observes that many health-care providers do not
understand the process. Often they even fear the defense team
whose job it is to protect them. In depositions, it is
important that the Good Doctor not be intimidated by the
plaintiff’s attorney. Confidence in your medical
decisions and the abilities and experience of your defense team
will enable you to act from a position of strength. A rule of
thumb is to present yourself as if your every word and action
were in front of a jury or would end up on the front page of
your local newspaper or television news program.
An experienced medical
malpractice defense attorney and in-house counsel for a medical
malpractice insurer adds that a Good Doctor must actively
participate in the defense of his case. This means 1) returning
phone calls to the defense team promptly, 2) making yourself
available for meetings, especially pre-deposition conferencing,
irrespective of how much experience you have in being deposed.
Pre-deposition counseling is critical to the case and similar
to a pre-op work-up—no one wants any surprises! It is
also helpful for you to share with your defense team any of
your observations about the case that are not in the medical
record.
What if the Good Doctor
does everything that the carrier requires of him and the
insurer wants to settle a claim against the Good Doctor?
Medical malpractice statistics peg verdicts in favor of the
defense as high as 80-90 percent of lawsuits. However, settling
a claim or lawsuit may sometimes be the best solution, as
painful as that may be. Some settlements are made because there
is some culpability on the part of the provider. Settlements
are made that do not necessarily correlate with the degree of
fault (nor are the amounts paid in those settlements). The
insurance carrier may fear that a jury may find in the
plaintiffs favor in spite of an absence of negligence on the
Good Doctor’s part, or defense expenses may be too high
to make continuing to fight a less-than-meritorious case pay.
While some medical malpractice policies state that the carrier
may not settle a claim or suit without your consent, that
consent may also not be unreasonably withheld (the lack of
consent frequently has consequences). Sometimes it is necessary
to make a business decision that is adverse to your pride, your
practice record, and what seems fair. It may be that the
ultimate price of being a “Good Doctor” is knowing
when to cut your losses. g
Richard
Vento is the president of
Medical Risk Management Services, Inc., a malpractice insurance
wholesale brokerage and consulting firm in Jamison,
Pennsylvania. Reach him at rvento@medriskman.biz
