Seven Keys To Preventing Malpractice Lawsuits

By Jack Janov, Esq.

Most podiatrists may never be targeted by a malpractice claim. However, it is prudent to consider preemptive strategies to help reduce the risk of being sued and to minimize your potential exposure.

Overall, recent jury verdict data show only slight increases to the median and average jury awards in many states and many medical malpractice cases resolve without the payment of any damages. However, the highest malpractice payouts have increased for the most severely injured patients, according to a Bureau of Justice review of the 2000 and 2004 statistics for Florida, Illinois, Maine, Massachusetts, Missouri, Nevada and Texas.1

From 1990 to 2004, Missouri’s median medical malpractice payment increased fivefold while Texas and Nevada saw increases of 26 percent and 27 percent respectively. Ten percent of the cases in Florida, Maine, Missouri and Nevada had payouts of $1 million or more. Thirty-three percent of general medical malpractice cases in Florida, Maine and Missouri had payouts under $250,000.

With these statistics in mind, let us take a closer look at proactive steps podiatrists can take to prevent malpractice lawsuits and costly judgments against them.

Strive To Ensure Patient Satisfaction
All malpractice claims have a common origin: a dissatisfied patient. Good patient communication is a great first step to reduce the risk of being sued. Listening and reacting to patient complaints about medical office visits will help prevent some borderline malpractice claims.

The most commonly voiced complaints are: waiting over 30 minutes; not getting an appointment within a week; a physician spending too little time with the patient; a lack of prompt response on test results; and a lack of a prompt return to patient phone calls.2

Avoid Promising Immediate Or Optimal Results
While clinicians should strive to improve and maintain a high level of patient satisfaction, they should resist promising immediate or optimal results, or a lack of postoperative pain. In a Mississippi jury trial, a patient said her podiatrist guaranteed she would be pain free in about four to six weeks after her bunionectomy. This patient alleged she would have declined surgery had she known she would be in pain for nine months after surgery. The case was dismissed due to the plaintiff’s failure (or perhaps her attorney’s failure) to have an expert testify on whether postoperative pain was a risk associated with bunionectomies.

Try to be actively involved in your defense counsel’s selection of your expert witnesses. The frequency of bunionectomy claims observed in jury verdicts may suggest that bunionectomy patients have high expectations. The extent to which bunionectomy claims may be over-represented is unknown because jury verdict data is not comprehensive. The more common types of bunionectomy malpractice claims cite overcorrection, excessive bone removal and the procedure being unnecessary.

Practice Within The Standard of Care
Keeping your practice within the standard of care is easier said than done. While defining a standard of care can be straightforward at times, it can be elusive in other situations. A lack of consensus may exist within podiatry on the standard of care for a specific treatment. It can also vary from state to state. A specific podiatric standard of care may also lack consensus within the broader medical community. Standards of care can also vary in a malpractice trial because the political dynamics can influence whether the “least rigorous, most rigorous or something in between” standard of care applies.

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