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Legal Matters   The Lawsuit Antidote Preventive care goes a long way—in medicine and in law. By Jeffrey Segal, MD      Unique Opportunities, May/June 2008 Nothing is worse than having the first appointment of your day interrupted by an unexpected— and unpleasant—surprise. Instead of the child who is running a fever or the middle-aged man who’s concerned about his blood pressure, you are faced with a sheriff serving a summons. And instead of speaking with a patient about what he or she can do to feel better, you are faced with a lawsuit. Not good. Now, you need to do something to feel better. Here’s a suggestion: Consider that preventive care in the legal world works much the same way as in medicine. Try adopting some common-sense methods, an “eat-right-and-don’t-smoke” model addressing the legal system. This will work to keep lawyers out of your office—and out of your life. Think of it this way: The better care you take of yourself legally means the greater your chances of swearing off lawyers forever; the same way that taking care of your body may well mean that you can avoid some medical interventions. Here are 12 suggestions that we’ve gathered from the trenches. Some might not apply to your specific situation, but many will: 1. Return pages from your answering service with your cell phone. People who sue frequently allege the doctor did not call them back in a timely fashion, or even at all. If you call from a land line, there is no record of the call being made. Call from a cell phone and a record is created. Won’t patients abuse the privilege and call you directly on your cell? Generally, they won’t. 2. Now that you’ve called the patient back, document what was said. It is too easy to give advice and ignore the paper trail. If you use an electronic medical record, log-in, and record. If you have access to call-in transcription service, use it. If not, create a separate voice mailbox on your office phone to be used for transcription of after-hours messages. 3. Guarantee to patients they will receive lab and radiology results in a specified time period or their office visit is free. That’s right. If you tell the patient they will hear from you regarding their results, they will never assume that no news is good news. This is a frequent source of litigation, particularly if the test reveals something such as cancer. The doctor often assumes the staff sent information to the patient. The patient assumes the absence of information is positive. Tie your office manager’s bonus to how frequently such refunds are tendered, and you will find information gets transferred with near 100 percent fidelity. 4. Be a stickler against patients’ smoking. It is well known that smoking interferes with wound healing. Don’t uniformly assume that patients who have a history of smoking have kicked the habit, even if they tell you otherwise. Explain the risk before the operation, then have the patient sign a document which addresses the risk. That document will also be an affirmation by the patient that they have indeed stopped smoking. Then, before surgery, perform a urine cotinine test with the rest of the lab work. If they’ve kicked the habit, the test will be negative. If the test is positive, think about rescheduling. 5. Document what you did NOT do. Although it sounds counterintuitive, there are times it makes eminent sense to document what was NOT done. Sometimes, there is extensive literature explaining the merits of following a particular algorithm for a particular condition, but, for a variety of reasons, you might choose to forego such treatments. The default assumption by a plaintiff’s attorney will be “that if it was not documented, you were unaware of such standards for treatment, and you didn’t even think about it.” But, if you document your reasoning for avoiding such an established treatment, because in your judgment, in this particular case, the risks outweighed the benefits, you will sidestep the allegation that you breached the standard of care. It takes two minutes to document. If you address it upfront, it’s an explanation. If you address it after the fact, it’s an excuse. 6. Think twice before you send a patient to collections for a $22 balance. First, you will never collect the $22. If the carrier has paid the physician hundreds or thousands, and the patient had an untoward result, the threat to send to collections might not be the best way to engender good will. Patients generally like their physicians. They do not want to sue their doctor--but no one wants to be sent to a collection agency for $22. 7. Speak ill of your colleagues at your peril.

It is a competitive environment out there. It is too easy to take a verbal swing at your colleagues. Avoid the temptation. “What goes around comes around.” Or, as Mark Twain said, “When I was a boy of 14, my father was so ignorant I could hardly stand to have the old man around. But when I got to be 21, I was astonished at how much the old man had learned in seven years.”  Over time, most physicians learn to avoid casting inappropriate aspersions on their colleagues. Obviously, if a colleague is a true danger to the public, the correct thing to do is speak up, but, the proper venue is not in an examining room with a patient, but in private with the appropriate authorities. 8. Accept patients who bad-mouth their previous doctors at your peril. It is all too easy to be enticed by a patient who flatters you beyond belief; particularly when you are contrasted to all of the “incompetent” physicians he has seen previously. This is a red flag. Remember that some or all of the “incompetent” physicians were flattered in the past, just like you are now. If you are not careful, you could join that list. Odyssius, beware of the Sirens. 9. Check the patient. Check the side. If you operate on a patient, verify with a belt-and-suspenders approach that the patient about to be wheeled in is indeed the correct patient. Verify the side with the pathology is indeed the side that will be prepped and draped. Have another person go through the same drill. Protocols should be in place at every facility where you work. Perform these protocols religiously. If you do not, and surgery is performed on the wrong patient or the wrong side, you will burn. It might not matter whether or not the patient was even harmed. There is a famous case in Florida where a patient was scheduled to undergo an amputation of one leg and the surgeon removed the opposite leg. In this particular patient, he had bilateral vascular pathology, and the consensus (agreed to by both patient and physician) was that both legs would eventually be amputated, but in a staged fashion. So, the long term treatment plan was unchanged. Try to guess the result. The point is, get the patient right and get the side right. 10. Have a back-up plan for getting the right level localized. As a spine surgeon, I was charged with matching the pathology on an imaging study to the anatomical level in the operating room. While MR can penetrate the heaviest of individuals, the localizing X-ray in the operating room often fell short. Have you ever tried to localize C6-7 when a patient’s massive shoulders and thick bull neck allow a lateral view no lower than C3-4? It’s a drag. The solution: plan ahead. Large patients, a theme for this century, can be imaged with an AP view. A longer incision can be made and then one can count down from what can be imaged. Or, if you cannot be reasonably sure, and the case is elective, stop and come back another day. The point is, it can be hard to nail down the correct level. But, if you keep more than one tool in your tool kit, you will rarely, if ever, fail. 11. Charting: Speak ill of your patient at your peril. Resist the temptation to pepper the chart describing your patient as “hysterical,” “histrionic,” or “crazy.” If you are wrong, you will pay dearly. Even if you are right, you may pay dearly. Keep it professional. 12. Never, never, never alter the record. If you alter the record after you have been served with the lawsuit, your defense attorney will develop an ulcer. Resist the urge to clarify the record. As noted earlier, documentation before there is a problem is considered an explanation. Documentation addressed after there is a problem is considered an excuse. n Jeffrey Segal, MD, is a board-certified neurosurgeon and the founder and CEO of Medical Justice Services Inc., a firm that provides doctors with a proactive way to deter and defend themselves against frivolous medical malpractice lawsuits. He may be reached through www.MedicalJustice.com. The comments in Remarks are solely those of the author and may or may not be shared by UO or it’s advertisers.