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Medical Malpractice Risk Mitigation

The information in this article is adapted from a couple of great talks by Phil Eskew, DO, JD, MBA, and other attorneys in the medical malpractice space. I’ll link the YouTube video of it below. It dives into a few more DPC-specific issues, so I divided it to extract the salient medical malpractice risk mitigation points.

Let’s start with an 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.

Malpractice insurance is low on the list of things that will protect you against a malpractice suit.

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

Wounds with missed foreign bodies and missed fractures follow these top 5.

Alternatively, if you prefer the “big three” model, review this article regarding

  • vascular events
  • infections
  • 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.

Check out the DocDigital Online Course – Launch Your Virtual Practice in 8 Weeks with me, Dr. Mo!

Avoid Getting Sued

In my opinion, it’s not productive to try and avoid a malpractice suit as a primary care doctor. The statistics show that most of us will face a lawsuit at some point.

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.

Failing to document family history or current medications is high-risk documentation behavior that could lead to a lawsuit. Spend time gathering this and put it into your note. Obviously, this is 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. 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, studies, or referrals, be very clear about these. Forgetting to input a patient’s referral to orthopedics could result in a missed appointment and a negative outcome, leading to 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 which decreases our risk of getting sued.

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 should 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 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 the following, which define negligence.

  1. Duty
  2. Breach
  3. Causation
  4. Damages

These have to be met for a medical malpractice case to be born. Of course, anyone can file a lawsuit, but it might get tossed out if these criteria aren’t met.

1. Duty of the Physician

In order to breach any legal obligation between you and the patient, you must have a duty to that patient. I have no duty to Jane Doe, whom I’ve never met.

Once I talk to, engage with, or come into indirect contact with another human being, I could be intentionally or inadvertently entering a patient-doctor relationship.

I then have a duty to that patient because, as they say, once you have a patient, you own them for life.

2. Breach

For proper malpractice risk mitigation, you must not breach your duty to the patient. For example, letting them fall through the cracks, not returning their call, or dismissing their complaints could be considered such a breach.

3. Causation

The physician’s actions need to directly or indirectly lead to the damages for which the lawsuit was started.

In an obvious case, this doesn’t have to be teased out, while in more complicated cases, the jury will determine if causation does or doesn’t exist.

4. Damages

This one may be obvious since the patient may not be able to sue for negligence if no harm took place.

However, economic damages might be quite high for a high-earning income individual and low for a laborer. These are not capped in any way.

The term tort reform in relation to capping damages only applies to noneconomic damages such as pain & suffering.

Deposition

Should you get deposed, hopefully, you have a good enough attorney who will practice it 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.

The general advice is don’t throw another clinician under the bus because that can come to bite you. And be wearing if your attorney suggests otherwise unless there is a good reason.

Arbitration

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

Most physicians don’t know this, but you can legally 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 of 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 (FAA), and it doesn’t need to be too extensive.

Two Separate Patient Agreements

In order to make it more enforceable, offer 2 contracts to your patients.

Option 1 will allow the patient to retain the right to sue you and there will be a higher visit cost.

Option 2 will be a much lower cost (your real cost), and in it, they must sign and agree to the FAA.

Medical Malpractice Caps in the US

In the U.S., medical malpractice caps limit how much money a plaintiff (patient) can receive in a medical malpractice lawsuit. These caps are set at the state level only on non-economic awards. Not all states have these non-economic caps, but many introduced them as part of tort reform efforts.

Economic Damages: These damages can be quantified in monetary terms, such as medical bills, lost wages, and rehabilitation costs. Most states do not cap economic damages.

Non-Economic Damages: These are more subjective and pertain to damages that aren’t easily quantified in monetary terms, such as pain and suffering, emotional distress, and loss of companionship.

Punitive Damages: These are damages intended to punish the defendant and deter similar behavior in the future. Punitive damages are less common in medical malpractice cases and are usually capped.

Malpractice Requirements

Malpractice isn’t mandatory in most states, meaning you don’t have to have malpractice insurance.

Disclosing to the patient that you don’t have coverage can actually decrease your chance of getting sued. And it’s just good practice to let them know ahead of time.

States requiring malpractice insurance:

  • Colorado: Requires coverage unless the physician qualifies for an exemption.
  • Connecticut: Physicians must either have coverage or prove they have the financial means to cover potential liabilities.
  • Kansas
  • Massachusetts: Requires coverage for certain specialties and procedures.
  • New Jersey: Requires a certain level of coverage unless physicians qualify for an exemption.
  • Rhode Island
  • Wisconsin
  • Florida: It doesn’t require insurance, but physicians without it must demonstrate they can financially cover potential liabilities.

Communication, Communication, Communication

In summary, by the time the patient and doctor relationship breaks down, it’s too late. Avoiding medical malpractice requires an upstream approach by communicating as effectively as possible with the patient.

  • Explain the diagnosis
  • Encourage questions (feedback)
  • Discuss treatment options
  • Explain risks
  • Discuss potential outcomes
  • Offer alternatives
  • Follow-up closely
  • Anticipate misunderstandings

When the communication channels start to break down, it would be good to go to step 2, which might involve including someone else in the conversation or terminating the patient-doctor relationship.

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