10 Ways to reduce medical malpractice exposure. (Doctors, Lawyers and Lawsuits).

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WITH HEADLINES proclaiming another medical malpractice crisis, it's a good idea to take stock of how physicians conduct business with patients.

Let's face it, in malpractice cases the trouble doesn't begin with lawyers, it begins with doctors' interactions with patients. Patients who feel well cared for and have an amicable relationship with their physicians rarely sue, even when there may be a poor outcome to some element of a care plan.

In medical practice for 38 years, I've seen the malpractice concerns of physicians rise from minimal to, sometimes, almost hysterical. The scope of our problems accelerated in the early 1970s.

I believe our risks for litigation grew as individuals dispersed away from their core family groups after World War II. The close, long-term contacts with which many of us grew up in our well-defined communities were disrupted. Trust became a victim of that dispersion. People did not have the family ties and, due to frequent moves, did not develop new ones.

That mobile pattern continues to increase today. In addition, the highly publicized scientific developments in medicine began to make the public believe that medicine could cure almost anything and expectations became unrealistic in many cases.

This combination of lost trust in physicians and publicity surrounding miracle cures played a large part in the development of the litigious society in which we live. Of course, this litigious attitude is not limited to physicians, but it hits us hard when we see our insurance premiums rise each year and our coverages reduced.

Cost of doing business

Involved in medical malpractice crisis since the early 1970s with the Nebraska Medical Association committee on malpractice, I later served as a co-author in a group that helped write the Nebraska medical malpractice statute that still exists today.

In the mid-1980s while a professor of family medicine at the University of Cincinnati, I took a sabbatical at the University of Cincinnati College of Law as a scholar in residence to study the basic elements of tort law and how they affect the medical profession. That sojourn led to continued activity in the area of malpractice for the past 16 years.

After leaving law school, I continued to practice medicine, but also worked as a consultant with a number of law firms to review potential malpractice cases. I reviewed cases for plaintiffs attorneys, defense lawyers and medical malpractice insurance companies. I occasionally served as a witness for both defense and plaintiffs.

It is my observation that most doctors practice quite good medicine, but some just don't do their jobs with care. There truly is medical malpractice out there, but in some cases malpractice suits are filed due to factual misunderstandings or poor communication.

Unfortunately, even good physicians are sometimes inadvertently negligent in the care of a patient. Most negligence is an unintended lapse or accident and not a sign of incompetence. Good doctors do get sued and this does not necessarily reflect on their abilities. Nonetheless, litigation is an unhappy cost of doing business in our society.

On the other hand, there are some doctors that I am ashamed to call colleagues. Their behavior toward patients would turn the stomach of even the most adamant defenders of the medical profession.

It is our duty to police ourselves and protect patients. We have a sworn duty to do no harm and that duty extends to preventing harm done by others.

Avoiding lawsuits

Based on my experience in the review of over 200 medical malpractice cases, I created a list 10 ways to help practitioners to avoid litigation. The list is not all-inclusive, but it does provide a number of preventive measures that, if followed, can reduce litigation risks significantly.

(1) Maintain open communication.

One of the leading causes of litigation is poor communication between doctors and patients.

Patients view their physicians as arrogant or distant when they do not make an effort to speak with them and their families.

I recently dealt with a case that centered solely on a surgeon's failure to explain to the family the complications that arose during an elderly patient's operation. The need to communicate with patients and families pertains to us all.

Remember the great French barber surgeon Ambrose Pare's admonition to all physicians; "We are sometimes to cure, often to treat, but always to console."

(2) Keep accurate medical records.

Keep clear and concise records. If handwritten, be certain the records are legible.

I went to a trial where a physician could not read his own medical records. It cost his insurance company a bundle. Use only standard abbreviations. Do not use personal codes that others cannot decipher.

The records are for the benefit of patients and the information they contain belongs to them. Keep pertinent positives and negatives in the notes.

A record needs to reflect the logical pursuit of a diagnosis and treatment plan. Remember, the records must be kept confidential.

(3) Obtain informed consent.

Every competent patient has the right to make his or her own decision about medical care.

If a procedure or treatment is beyond the usual scope of care, note in the chart that the patient was advised of the risks, benefits and alternatives to the care you provided and agrees to this particular course.

It is even better to get a signed agreement. There is such a thing as "implied consent," but if things go wrong, the patient's signature goes a long way toward mitigating the legal problems of the doctor.

(4) Examine the patient and note the findings carefully.

I have been involved in several cases associated with rectal and vaginal bleeding in which no physical exam was done. The patient was reassured that it was nothing serious.

In each case there was something seriously wrong and a lawsuit was filed.

If there is a complaint, take it seriously. If nothing is found after a carefully directed exam, the physician has demonstrated reasonable and prudent care.

(5) Monitor lab reports and have a follow-up plan.

Every lab result needs to be reviewed. Date and initial each report when you receive it. If it's abnormal, note a follow-up plan.

Note when the patient is contacted and what is said. Failure to do this is, to many courts, "negligence on its face" should the patient suffer injury due to a lack of follow-up.

(6) Consult and refer appropriately.

If a medical problem arises that is outside the usual scope of a practice, a consultation (noted in the chart) should be sought with a qualified expert. Or a referral to an expert should be made.

Failure to get help when a physician is clearly out of his or her depth can be considered a negligent act. Always note to whom, when and why a referral was made.

(7) Have a clear policy on office and hospital coverage.

All physicians have a duty to provide appropriate care to their patients. This means that the attending doctor must be available or have an equally competent associate ready to provide services at the time needed.

It is important that patients understand office hours and what to do when the office isn't open. The same applies to hospital coverages for inpatients and hospital staff coverage for ER or other in-house units.

Failure to care for a patient in need -- such as an obstetrical or cardiac patient -- in a timely manner can lead to charges of abandonment by a plaintiff.

(8) Be aware of your responsibility for the care provided by others.

Physicians are frequently responsible for the care rendered by those under their supervision. That's called vicarious liability, so be certain there is a practice policy that covers what each employee may or may not do.

Remember that all problems must be brought to the attention of the doctor because that's where the responsibility ultimately lies. Partners are also responsible for the care of their associates.

It may be smart to inquire into incorporating a practice to limit several forms of liability.

(9) Be familiar with state laws regulating medical care

Many state medical societies have booklets that provide physicians with the statutory requirements of practice in that state. Each state also has a medical board that can provide similar information.

Many doctors are unaware of their statutory duties or risks. I encourage everyone to contact their state medical associations and get a set of the rules of the game.

(10) Have a trusted lawyer on retainer.

Most physicians that I know don't have a lawyer to provide immediate support or counsel should a malpractice action arise. This should be considered another cost of doing business. It's one of the smartest things a physician can do.

A personal attorney with knowledge of malpractice law can pay off in a big way and help a doctor protect confidential information.

RELATED ARTICLE: NEW BOOK MAKES MALPRACTICE PROCESS UNDERSTANDABLE

For the past 40 years, physicians have been exposed to an ever-present and nagging fact: Any patient may sue at any time for any disappointment or unfulfilled expectation. As medical practice has become more effective in reducing mortality and morbidity, the expectations of the public as to what is possible have become inflated. In some cases, the disparity between professional reality and the expectations of critics leads to litigation and unfortunate encounters with the civil courts.

In a new book from the American College of Physician Executives, Medical Malpractice Risk Management, the authors address malpractice from two aspects:

* How to avoid malpractice claims through careful case management.

* How to deal effectively with the situation should a claim arise.

In easy to understand language and with minimal dependence on jargon, the authors, a physician executive and two attorneys, describe malpractice litigation, its processes, and the processes that can be implemented to avoid it in practical terms. This book, based on a series of educational courses conducted successfully for several years by the authors, can become a workbook for proactive responses to the threat of litigation.

$35 members, $45 nonmembers Discover, Mastercard, and Visa accepted.

Call 800/562-8088 to order a copy or for more information on the book. Or visit the ACPE Web site at www.acpe.org.

Vicente Franklin colon, MD, is founder, first director, and now director emeritus of the Bethesda Family Practice Residency Program, Cincinnati, Ohio. He is a member of the faculty of the Bethesda Family Practice Center and volunteer professor of family medicine at the University of Cincinnati College of Medicine. He can be reached by phone at 513/631-0750 or by e-mail at [e-mail].