Top 6 ways to avoid malpractice

For many physicians, no matter their specialty, the one thing that keeps them up at night is fear of medical malpractice lawsuits. Elisabeth Madden, partner at Lynch, Gilardi & Grummer law firm in San Francisco, is an attorney with more than 20 years’ experience defending healthcare providers. During the 2013 Vegas Cosmetic Surgery and Aesthetic Dermatology meeting, Ms. Madden co-hosted a session about the top ways to avoid medical malpractice lawsuits.

• Accuracy and completeness of charts. “What is most important to me at that point (of trial) is the patient’s chart and documentation of the patient’s chart,” Ms. Madden says. “By the time the case is getting to trial or anyone is testifying, it’s not usual for two years to have passed, so that record really becomes the core piece of evidence for the doctor and the practice.”

• Don’t admit liability. “Litigation is extremely time consuming and draining and stressful on a practice,” Ms. Madden says. “Sometimes in order to avoid what appears to be an oncoming lawsuit or complaint, a physician will offer a refund. I would caution a physician against offering refunds … unless they have consulted with their professional liability carrier.” 

Offering a refund could be considered an admission of liability, Ms. Madden says. “So many times, it has nothing to do with the patient’s care, it’s just that that doctor doesn’t want to get involved in a lawsuit. It will be played back later as an admission of liability.”

• Lack of communication and adequate follow-up. “For example, not reporting back to a patient or doctor on a lab test or X-ray. It’s important for an office to have system in place for how are test results are communicated and what is your process in the office for handling that,” Ms. Madden says.

• Bedside manner. “Again it’s a communication issue. A patient will feel that they’re not being heard or listened to,” Ms. Madden says. “It leads to the lawsuit. The physician’s reasons or decisions may be within the standard of care and application but if they’re not communicating to the patient, that can lead to a misunderstanding and a lawsuit. It’s a breakdown in communication.”

• Managing expectations. For plastic surgeons, don’t build up someone’s expectations beyond what is deliverable, Ms. Madden says. “Keep a patient’s expectations realistic. Dermatologists do this, too, sometimes within the course of selling it (a procedure) you can oversell it. They cannot step out of their role as physician first.”

• Informed consent. This is very common to see a lack of informed consent, Ms. Madden says. “That’s another place where documentation is important - where you have a patient sign-off that they were informed or given an opportunity. Most physicians nowadays schedule time so that a patient can have any questions that are raised addressed. If such a meeting occurs, document it. If there is literature that you can give the patient, that’s great. If there’s a website, that’s great. The more information they have before the procedure, the more difficult it will be for them to later claim that they didn’t know.”

“In our experience, most medical malpractice cases will end in a defense result,” Ms. Madden says. “Generally you can have a good outcome in a medical malpractice case. Just because you’re sued, it doesn’t mean something negligent occurred.”

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