A malpractice defense attorney explains how to prevent a lawsuit

Medical malpractice attorneys that defend physicians have seen the gamut of issues that come up when a physician faces a lawsuit. So what should a physician do when dealing with such a career crisis? What should they avoid doing? Medical Economics® sat down with Fred Cummings, JD, a medical malpractice attorney in Phoenix, to discuss proactive strategies for preventing a malpractice lawsuit. The following transcript was edited for length and clarity.

Medical Economics® (ME): How likely is a physician to face a lawsuit during their career?

Fred Cummings, JD: Statistics really vary. I’ve seen statistics that show that as many as one-third to a little over half of physicians can reasonably anticipate facing a lawsuit sometime in their medical career. And for those who have been sued, about half of them will get sued again.

ME: Can you talk about some of the top reasons that physicians are sued?

FC: Generally, the largest reason why physicians are sued is because of either a failure to diagnose a condition or there was an unexpected complication from surgery — or even just any type of poor outcome may lead a physician to be sued. In general, for a primary care physician, failing to refer a patient up to an appropriate specialist is (often) going to get them in trouble. I often will lecture to physicians and say the primary reason physicians get sued (is because of) poor documentation. So it’s the outcome that motivates a patient to sue, but its documentation that motivates the attorney to bring that lawsuit.

ME: One of the things many physicians are concerned about is lawsuits resulting from errors with the EHR (electronic health record) system. Can you talk a little bit about what some of the problems are with EHR, as well as some of the potential risks they involve?

FC: EHRs themselves do not cause a lawsuit. However, poor application of that tool can cause a lawsuit. Training is a big issue with individuals for electronic medical records, and not knowing exactly how they work and what they’re supposed to do. Then sometimes they’re not set up as a traditional chart. For example, there is no section that indicates that the tests that came in was reviewed. That’s another aspect of it.

Another factor is the repopulation of charts from prior visits, which is the copy-and-paste method of electronic medical records. That’s a huge problem both in a primary care office and a hospital. I’ve seen electronic medical records take the hospital chart from 100 pages to 400 pages because of repopulation.

The other aspect of electronic medical records that get physicians in trouble is that physicians tend to rely too much on the drop-down box method that you find a lot in EHRs, and the only record is positive, the patient was nice during their exam, but it does not spend enough time saying what the negative findings are. In a lawsuit scenario, sometimes that’s interpreted as you didn’t check. And I know every physician has heard: ‘If it’s not documented, it didn’t happen.’ Right? That includes recording the negative outcomes, and that’s a big thing for electronic health records. The other aspect, of course is information that’s not correctly documented — incomplete medication lists or not having your electronic medical record set up so that there are warnings if you prescribe one medication and then prescribe another medication that may be contraindicated. Of course, a hospital has that system, but now we’re finding that physicians are supposed to also have that in their bailiwick of their electronic medical records so that they can provide patient safety. It’s all about patient safety.

ME: In your experience, what are patients really looking for when they sue for malpractice?

FC: Physicians are sometimes surprised to find out that patients aren’t solely motivated by money. I think there is somewhat of a misconception that it’s a jackpot mentality, that patients will sue because they can get a lot of money. However, the fact of the matter is, especially in the medical negligence field, there are so many barriers to being able to bring a successful lawsuit that that really is not the primary driving force for people when they have to then overcome those barriers. A lot of times, patients just want to know what happened.

And it’s partly because the physician has not communicated what has happened, why it’s happened, or given a reasonable explanation, so they feel they have to seek answers. Another reason can be solely just so that whatever has happened to them doesn’t happen to others. Then there are some more surprises — rising motivations including revenge, getting back at the physician. ‘If they did this to me, I want to make sure they don’t practice again.’ Those types of things. Those patients are quickly disillusioned by the system because we generally do not take such actions in a civil lawsuit, of course. But a lot of times, patients just simply want to find out what went wrong.

ME: What are some communication techniques physicians can use to prevent the risk of a malpractice lawsuit?

FC: Communication is essential. That is really the root of all relationships, isn’t it? And no more so than a physician-patient relationship. Sometimes, of course, and especially in a primary care setting but really in all settings, the pressure to document and listen to the patient is overwhelming. Patients will often complain about the fact that the doctor never looked at them. They’ll say things like, ‘He was spending the whole time on his computer. He was saying he was trying to input what I was saying, but he never looked at me. Then he didn’t really explain what he was doing. I didn’t feel like he listened to me.’

I can tell you, especially in the primary care field, that if a patient feels like they’ve been listened to, that you heard their complaints and you then explained why they were feeling what they were feeling and what you were going to do about it, you create a bond. That’s how you do it — by communication. Make them feel that they’re part of their health care.

ME: You spoke earlier about how documentation is one of the most important things to prevent a lawsuit. What are some of the common mistakes physicians make when it comes to documentation?

FC: Firstly, it’s to document in and of itself. Do not abandon your tried-and-true principles of the SOAP format (subjective, objective, assessment, and plan) because your EHR doesn’t seem to fit quite as well. Even in the comments section, you want to make sure all those things are there. Why? Because somebody down the line — a lawyer or other physician — needs to know what your thought process was. Sometimes just putting down the bare bones will create a false impression in the record.

The other thing physicians often don’t do is pay attention to what they’re putting down. They don’t check their dictation and then don’t notice that words are missing. Sometimes they’re very critical words. And this is very true for EHRs, boilerplate templates that they have already prepopulated the chart with because this is a routine thing they do all the time, or it’s a condition they treat all the time. It’s like a cookie-cutter. The problem with that is, as we know, patients aren’t necessarily the round peg that will fit into that square hole, right? So that’s where physicians (often) get in trouble, by not individualizing the patient’s chart. And then every other aspect of charting that you’ve heard from before still exists today, which is that charts are incomplete. Medications are not all written down in the correct amounts or include what the patient presently is taking. Patients’ medical histories aren’t recorded. Essentially, the patient chart is your documentation of your interaction with this patient and your understanding of the patient’s health care. If something is missing, then that’s going to get exploited later.

ME: If you’re facing a lawsuit, what are some of the things you should do right away to try to mitigate your risk? And what are some things you should not do?

FC: Certainly, one thing you don’t want to do is ignore it. I have had physicians who, on day 23 — three days after they’re supposed to answer the complaint — call me and say, ‘I got this complaint, but I don’t know what to do with it.’ What happens is not necessarily good for the physician. You don’t want to ignore the fact that you’ve been sued. If you have medical negligence insurance, contact your insurance carrier. That is a requirement of every insurance policy out there.

You should also marshal your records, all the records that relate to the patient, not just the ones that you think they may be complaining about. You don’t want to change the record, modify the record, or add to the record — keep the record as it is.

You (also) don’t want to talk to everyone about the lawsuit, how you feel wronged by it, how the patient is wrong and you are right, and what’s wrong with the legal system today. Just talk to your insurance carrier, your lawyer, and your spouse. That’s it. The reason is because anything you say — sort of like we hear in crime shows — can and will be used against you. That could cause people to go out and interview people you’ve talked to and find out what your present state of mind was. Did you make any admissions? That’s what you want to avoid.

ME: One of the things we hear about often is that physicians practice defensive medicine to try to prevent lawsuits. Does defensive medicine actually work? Does it actually help prevent a lawsuit?

FC: If by defensive medicine you mean ordering that diagnostic test or recommending your medical treatment that may not necessarily be the best option but is an option that serves the physician and hoping they don’t get later sued for malpractice. I would say studies are mixed on this.

Believe it or not, there is some evidence to suggest that defensive medicine, in fact, works. However, there are downsides to that. Let’s just talk about things that aren’t legal, the medical ethics of it. If you know you’re doing a test (that) might not be necessarily indicated but you just want to make sure you’re protected, that is not medically ethical to do.

You also might not be solving the problem, (because) by ordering the test or a medical procedure that you have recommended for the patient, you are now subjecting the patient to an additional risk of harm. That may later come back to bite you. That scenario where you’ve ordered a test that you think might not be really necessary, but you need to make sure you’ve got your butt covered, and then something happens. Now the motivation and reason for the test is going to be an issue, as well. So now the doctor is putting profits over patient care, and that is a deadly argument in a jury trial.

I certainly understand why defensive medicine is practiced. Yes, sometimes it has been successful, but you’re really increasing your risk of having a malpractice suit brought against you — one that may not be defensible.