Staying Claim-Free During The Malpractice 'Crisis'
I received a letter last week about another crisis approaching podiatry. The letter was from my insurance company and it warned that premiums were going up because of the malpractice crisis. In my mind, malpractice isn’t a crisis until I become a defendant. In 27 years, I have not had that pleasure. Yet.
I review closed claims for my state podiatry licensing board. I have not noticed an increase in the number of claims but the settlements and jury awards are climbing like a homesick angel. Twenty years ago, a $75,000 settlement was shocking. The last case I saw had a $1.3 million jury verdict against a DPM. That got my attention.
In the ‘70s, claims were filed against doctors. The insurance companies did not want to mount an expensive defense so settlements were made. Attorneys flocked to this golden goose. Nuisance claims were not unusual. We had a crisis. Premiums went up. Doctors demanded a good defense effort and things cooled down for a few years. The premiums remained high.
There are fewer attorneys seeking medical malpractice cases these days. Back in the ‘70s, they advertised on billboards, buses, in newspapers and took out giant phone book ads. Now you mostly see ads for attorneys seeking medical product or medication liability cases.
The reason that the awards and settlements are going up is that the attorneys are very good at what they do and they only have interest in cases with merit when a large settlement is likely.
I’m not sure that what we now have is really a crisis. It may be more of a wake-up call. The message is clear that if we commit malpractice, it will likely cost some significant money. When the award exceeds the limits of your policy, the rest comes out of your pocket. I know a family practice doctor who has the name of a former patient on every piece of property he owns. The patient had a less than satisfactory vasectomy and the award exceeded the good doctor’s $300,000 limit.
Why am I claim-free? It’s not because I’m the most skillful podiatrist in the world. My surgical skills are adequate and I occasionally make errors or misdiagnose problems. I have stayed claim-free by following the 300 percent rule. I am 100 percent honest with my patients. I practice within the scope of my training and experience 100 percent of the time. I try to be 100 percent compassionate when my patients are suffering, especially if an error on my part has added to their pain. That’s 300 percent.
Dr. Stephen Hennessey is a vascular surgeon who shares my office. He has been in practice over 15 years and is also claim-free. He uses the 300 percent rule also. The compassion part is the difficult one. Many of his patients are in a high-risk category and some die of the conditions he is attempting to treat.
I once saw Steve leave an exam room in tears. He had just told a young woman and her husband that her breast cancer was metastatic and her chances of survival were low. His nurse also left the room in tears.
When a patient and her family receive such terrible news, the doctor’s compassion or lack of it is well remembered.
As podiatrists, we may never have to deliver devastating information to our patients, but we still need to show compassion. If our patient is dissatisfied with a result, we need to show genuine concern and spend extra time listening to the patient. Patients always remember that.
The 100 percent honesty part is easy. I give my patients options in their choice of care and information on the options. I let them choose what seems best for them. If what they need is outside of the scope of my training or experience, I refer them to an appropriate specialist. When I can handle their problem, I explain the limitations and risk factors of the operation. I’ll even discuss my experiences with patients who have had complications. Those who demand a perfect result leave my care after this discussion.
I shouldn’t take pleasure in this but several have gone to other surgeons and then have asked me to testify in their malpractice actions when things didn’t turn out as they expected. I always decline. I figure they had a chance for my services.
So why do we have to call this malpractice thing a crisis? It is simply the way things are and we need to adapt by using the 300 percent rule for dealing with patients. I think I’ll stick with managed care for my podiatric crisis. I’ve grown emotionally attached to it.