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Malpractice Risk Mitigation

The information in this article is adapted from a great talk by Phil Eskew, DO, JD, MBA. I’ll link one of his YouTube videos below. I extracted the salient malpractice risk mitigation points to help me make better clinical practice decisions.

Let’s start with a bigger overview of malpractice risk and how a medical lawsuit is born. I’ll weave in data and articles from other sources to help you avoid getting sued.

High-Risk Cases

Let’s start with the obvious, certain clinical presentations share a great bulk of malpractice claims.

Here are the top 5:

  1. chest pain – missed MI
  2. abdominal pain – appendicitis
  3. headache – intracranial bleed
  4. pediatric fever – meningitis/sepsis
  5. intoxicated patients

These top 5 are followed by wounds with missed foreign bodies and missed fractures.

Alternatively, if you prefer the “big three” model, review this article regarding 1. vascular events, 2. infections, 3. cancers.

I have outlined a summary of the “big three” below.

Top five misdiagnosed vascular events: (1) stroke, (2) myocardial infarction, (3) venous thromboembolism, (4) aortic aneurysm and dissection, and (5) arterial thromboembolism.

Top five misdiagnosed infections: (1) sepsis, (2) meningitis and encephalitis, (3) spinal abscess, (4) pneumonia, and (5) endocarditis.

Top five misdiagnosed cancers: (1) lung, (2) breast, (3) colorectal, (4) prostate, and (5) melanoma.

Here is a free CME from the Doctors Company on how to avoid missing acute MIs.

Avoiding Malpractice

For my mindset, it hasn’t been helpful to try to desperately avoid malpractice. Statistically, I will get sued one day, so I would rather focus on malpractice risk mitigation strategies.

But the other side of the stats is that most payouts are covered by malpractice and are in the $150,000 range. These are the cases that go to court.

If we look at all the cases including the ones where the clinician and patient settle (which may not get reported), the average probably would be closer to $10,000.

Physician Behavior

It has been consistently shown that the poor outcomes of the patient have less to do with malpractice than how the patient perceived that clinician.

The next level to this is how well you documented the patient’s care. The quality of documentation alone can deter an attorney from taking the case.

1. Poor Communication

You don’t need to kiss a patient’s ass, but if you feel that the patient’s attitude or demeanor leaves you feeling defensive, it’s better to send that patient to the ER.

Be kind, patient, and understanding, and don’t lose your cool. Don’t be short or give the patient the impression that you are pissy.

Spend more time getting the history or performing the physical exam. Spend more time educating the patient on what they can do for themselves or their disease process or treatment effects.

Good communication also means that you can pick up on the patient’s disappointment cues. Address them. “I get the sense that I may not be explaining it well or that you were hoping for a different outcome. Can we talk about that?”

2. Documentation

The advantage of dictation is that you’ll spend more time talking to the patient and use more words to describe your medical decision-making.

As you guys know, I use Google’s built-in dictate function. Dragon is another popular option. Adequate visit documentation is at the heart of my malpractice risk mitigation strategy.

Failing to document family history or current medications is high-risk documentation behavior. Spend time to gather this and put it into your note. Obviously, more important for the high-risk cases discussed above.

Your medical decision-making should be explained. Why did the abdominal pain patient get a gastroenteritis diagnosis and not appendicitis?

Clinical practice guidelines are community-accepted guidelines for particular patient groups. The Canadian Head CT Rules are a simple example. Reference these in your MDM.

Remain broad when you can. If a patient has a headache, then don’t use a diagnosis code of sinusitis but instead use a “headache” ICD-10 code. And spend the time documenting that the patient needs very close follow-up and the diagnosis isn’t clear, but you suspect it’s sinus related.

3. Follow-up

To decrease malpractice risk be very clear and document any follow-up. What should the patient look for? Inform them how to take their medications and give the patient very clear discharge instructions.

Your patients should understand what their diagnosis is and what you ruled out.

If there are any pending labs or studies or referrals be very clear about these. A patient who has a referral to ortho but didn’t realize you put that into the system or forgets about the appointment and has a bad outcome will be an upset patient.

I am always reluctant to order a test or a medication because I know I am liable for everything regarding that test. Even if the patient doesn’t perform the test I am liable.

By the time I order a test I want to be committed and have a system in place to ensure the test is done, and the patient has a follow-up with me regarding the results.

4. Against Medical Advice

Even in the telemedicine space patients will perform actions against medical advice. This needs to be documented, and risks should be clearly explained to the patient.

If my type 1 diabetic patient with a blood sugar of 450 doesn’t want to go to the ER because she has to feed her cats, she deserves to know that she could die overnight because of DKA.

I should also tell her what she can do at home and what alternatives she has if she refuses to go to the ER. Don’t think of AMA as a disobedient patient but consider it what you can do for that patient to minimize harm.

Physician Reporting

The physician has to be sued or reported to have had a bad outcome for a malpractice claim to come to life.

The best way to mitigate this risk would be to run your own practice. Because a hospital group or an insurance company is more likely to report you than your patient.

Another level to this is that in a smaller private practice such as a cash pay practice your patient has more time with you. They likely find you more patient and pleasant and are less likely to report you or sue you.

Medical Malpractice Case Requirement

The classic 4 requirements for a medical malpractice claim are:

  • duty
  • breech
  • causation
  • damages

These have to be met for a medical malpractice case to be born.


Should you get deposed, hopefully, have a good enough attorney who will practice the deposition with you.

If not, the advice is to keep answers short. Don’t elaborate because you are just giving their attorney more arsenal.

What you say or don’t say in deposition rarely will get the case thrown out or avoid going to trial.

Also, speak to the camera because this is played for a jury later. Maintaining your eyes on your audience will more likely get you to say the right things and avoid being reactive.


It’s far cheaper to go to arbitration than go to court. Malpractice risk mitigation starts with planning ahead.

Most physicians don’t know this but you are legally allowed to sign a contract with a patient to go through arbitration. Historically this has held up quite well in courts.

If the CT with contrast I ordered for the patient who is allergic to contrast caused an ER visit and several days off missed work, then I can compensate that patient. Here is $5,000 for your headaches and I apologize for what happened.

The contract needs to reference the Federal Arbitration Act and it doesn’t need to be too extensive.

To make it even more enforceable, you can offer your patients 2 different contracts to sign. The first one will charge a higher office visit ($800) but allows them the right to sue you.

The second option will be a much more reasonable price ($150), but the patient must agree to arbitration. Simple.

Medical Malpractice Caps in the US

As a basic overview of tort reform which we hear about a lot. Let me simplify it.

Some states will limit non-economic award limits. That’s the pain and suffering you hear about in popular media. California, for example, caps this at $400,000.

Economic suffering isn’t capped and is not under tort reform.

States Requiring Malpractice

The following states require you to have malpractice coverage. For other states, it’s up to you if you want to cover malpractice.

  • CO
  • CT
  • KS
  • MA
  • NJ
  • RI
  • WI

Remember, if you contact third-party payers you might still have to carry malpractice insurance in other states.

Charity Care

On occasion, you might take care of a patient pro bono. Do not give these patients the same contract as your cash pay patients.

Having a separate contract that clearly highlights that you are doing the work as a charity offers you malpractice risk mitigation because you fall under the Good Samaritan law of your state.

Create a separate folder or panel for your charity cases to show you have a lower panel size. You will benefit from malpractice immunity and save on malpractice insurance costs due to lower panel size.

Be public about your charity work. Most attorneys don’t want to battle a doc who is involved in their community.

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