Proactive Pointers For Preventing Malpractice Lawsuits

Alan Catanzariti, DPM, FACFAS

Malpractice lawsuits can be time-consuming, financially draining and can affect your confidence in your abilities to deliver care for your patients. Accordingly, this author reviews common factors that lead to lawsuits, how to address potential complications, identifying potential red flags and the importance of good patient rapport.

I am a practicing podiatrist who has developed a tertiary referral practice for high-risk patients. Unfortunately, managing high-risk patients can often result in a high risk of litigation. I have been sued, barraged with ridiculous questions during depositions and belittled in court. Lawsuits are often filled with emotion, disappointment and anger.

   I have also had the opportunity to review records sent by defense attorneys and serve as a defense expert on many cases. I have learned from these interactions and from the mistakes of other physicians. Defending a lawsuit is time-consuming, expensive, emotionally draining and never easy. Lawsuits can transform your career from a profession into a “job.” Practice can become miserable and uninspiring.

   Most importantly, lawsuits can leave physicians second guessing themselves or worried about being sued to the point where they no longer take on challenging cases or patients. In the long run, it is your patients who get shortchanged by your reluctance to offer them certain treatment options that might be in their best interest for fear of being sued. It therefore behooves all of us to spend the time and make the effort to avoid litigation whenever possible.

What Are The Most Common Reasons That Patients Sue?

There are certain factors commonly associated with lawsuits including:
• development of a complication;
• the perception of a poor outcome;
• economic and financial needs of
the patient;
• failure to deliver promised services;
• a missed or delayed diagnosis;
• chronic pain;
• occupational issues (worker’s compensation, disability, etc.); and/or
• negative comments from subsequent treating physicians.

   It is obviously important to understand why patients are seeking treatment. Do they require treatment for pain, functional deficits, cosmesis or disability from work? Are they unable to exercise or participate in certain recreational activities? A patient will perceive the outcome as acceptable only when you have addressed the primary concern. Otherwise you may have what you consider a good result without appreciation by the patient. The patient may become dissatisfied and consider litigation if a problem or complication should arise.

   Patients will often consider litigation as means for financial gain. This especially becomes an issue when a patient has lost his or her job, or has become disabled and unable to work as a result of treatment. The patient may file a malpractice case against you despite your having an excellent relationship with the patient. Unfortunately, patients may view litigation as an opportunity to “financially recover” from their situation. In this case, even the most minor complication can ignite a lawsuit. It is important to identify this type of patient and avoid invasive procedures that require extended convalescence.

   A delay or failure to diagnose can often lead to litigation. I have typically seen this type of lawsuit result following a delay or failure to identify a complication after surgery. Although this can also occur in other situations (such as failure to biopsy a potentially malignant lesion), it is much more common with failure to diagnose a complication after surgery.

   Patients who present with a history of chronic pain or appear to have the potential for chronic pain are not candidates for invasive procedures. You must recognize those patients who present with a chronic pain profile. These include patients with type A personalities, smokers, those requesting narcotics, etc. If surgery is the only reasonable treatment option in this group of patients, then pay close attention for signs of complex regional pain syndrome (CRPS), reflex sympathetic dystrophy and causalgia following the procedure.

   Consider immediate referral to a pain management specialist to rule out or treat a chronic pain syndrome if you have a high index of suspicion. Even if you have ruled out a chronic pain syndrome, you will have documentation that you were giving this diagnosis serious consideration. These types of patients often have narcotics requests beyond what we typically expect for most procedures. A pain management specialist can often help in this situation. Providing these patients with an endless supply of narcotics to manage postoperative pain or pain secondary to a complication can quickly develop into an issue.

   Unfortunately, negative comments from subsequent treating physicians often lead to litigation. The best way to prevent this is by having excellent relationships with physicians in your town, hospital and region. Get involved at your hospital and local associations so other physicians get to know you. Let them see your willingness to be an active member of the hospital staff or local association. Keep your practice transparent by obtaining second opinions and referring when appropriate. You especially should have good relationships with those physicians who maintain a practice similar to yours. In some cases, this may be an orthopedist (musculoskeletal foot and ankle practice) or a general/vascular surgeon (wound care).

   Most importantly, we must refrain from making negative comments about other physicians, especially when we do not have the full story. All of us have experienced less than ideal outcomes in spite of optimal care and good decision-making.

When Complications Occur

Although I have seen all of these factors resulting in lawsuits at one time or another, the development of a complication is by far the most common and most significant. Obviously, it is important to identify a complication as soon as possible. Early identification and diagnosis are critical. One observation I have made when reviewing malpractice claims is that complications do not just happen. They evolve over time. Therefore, it is important to diagnose and treat during this evolutionary phase.

   Diagnosis of a complication is just the beginning as disclosure and treatment are also important. Patients must have a thorough understanding of their diagnosis and treatment plan, which you should present concisely with confidence and empathy. The treatment plan should be specific and crystallized with reasonable timelines so a patient knows what to expect at various intervals. This is no different from a preoperative consultation in which you “bond” with a patient and secure his or her trust. Otherwise, patients may obtain another opinion if you appear unsure or are unable to provide specific answers to their questions.

   However, if you are not comfortable, are not quite sure about your diagnosis or do not have the skill set to manage a specific complication, then consider referring the patient to another physician for treatment or, at the very least, for another opinion. Keeping the situation transparent is beneficial for everyone involved. Patients will appreciate your honesty and candor, which will go a long way in preventing a malpractice claim.

   Be sure to document your recommendation for a second opinion within the medical record. Although you may make the recommendation, the patient may choose not to go for another opinion. I will also consider a second opinion when I sense a patient may be losing trust or questions my treatment recommendations. Patients must be comfortable with your treatment recommendations or they may not adhere, which might adversely affect their outcome.

   One of the questions I ask myself during my preoperative consultation is, “Will this patient have enough faith in my judgment and confidence in my skills to allow me to do whatever is necessary should a complication develop?” If the answer is yes, then I proceed to surgery. Otherwise, I recommend a second opinion or candidly tell the patient that I cannot help him or her. Unfortunately, the natural human tendency for physicians is to ignore or minimize complications, but the effects of complications will not go away. Astute patients will eventually seek another opinion when they sense their condition is deteriorating in spite of being told otherwise.

   How you manage a complication is of paramount importance. The key to managing complications and keeping the patient focused on recovery, rather than thinking about lawsuits, is to engage the complication aggressively. A complication by itself does not constitute malpractice. Rather, it is the manner in which a physician manages a complication that will determine whether a complication results in a malpractice case. Once a complication begins to develop, you must obtain all appropriate laboratory work, imaging, scans, cultures, etc.

   Additionally, it is important to make appropriate and early referrals to those specialists who might be able to provide the patient with certain therapeutic interventions that are beyond your skills. Managing high-risk patients often requires the support of various specialists. Therefore, it is important to develop a network of specialists with whom you work on a regular basis so you can call on these doctors for consultation when complications arise. The patient is more likely to have no permanent harm from a complication if you follow these recommendations. A complication or even a deviation from the standard of care will carry no weight in a malpractice case if there is no permanent injury. Always keep this in mind.

Why A Good Rapport With Patients Is Crucial

It goes without saying that the best way to avoid a malpractice case is to establish a meaningful doctor-patient relationship. Having an excellent relationship will go a long way in avoiding and defending a malpractice case.

   Patient education is also a key factor in minimizing litigation. This requires the physician to spend a significant amount of time in consultation with patients, especially before significant interventions. Educational materials can often be helpful. These can be handouts, DVDs, models, Web sites, etc. You can obtain these materials from various professional organizations such as the American College of Foot and Ankle Surgeons. In the medical records, you should document what materials you used or recommended because during a lawsuit, patients invariably forget everything a doctor said or gave them.

   You can limit liability by providing patients with a reasonable prognosis for each specific treatment you recommend. This may seem like an obvious statement but there are times when we are overly optimistic in our predictions about outcomes. You must be explicit about complications, risks and convalescence/disability.

   Be sensitive to how a patient’s job and family life will be affected by the postoperative convalescence. Discuss this thoroughly so patients can make appropriate arrangements before surgery. Unanticipated absences from work or extended convalescence that disrupts family life will often cause a patient to become angry. No one likes surprises. Like everything else, this only becomes an issue when a complication develops or when there is a poor outcome. A patient who is angry about unanticipated disability is more likely to pursue litigation should a complication arise.

Red Flags That Indicate Patients May Sue

There is a group of patients who are generally dissatisfied and angry. They are at high risk for litigation. Avoid complex procedures with a high complication rate and extended disability in this group of patients if at all possible. To a certain extent, this involves street smarts on the part of the physician and this sometimes only comes with experience.
However, common sense and sound judgment are just as important. You need to identify these patients right away and implement a course of non-operative care. Although there are times when the ideal therapeutic option in this group of patients might be surgery, initial treatment with conservative care will give you an opportunity to develop a relationship and identify a patient’s motives.

   Unfortunately, many physicians will not take the time to listen or deal with this group of patients because they are so difficult. These patients are high-maintenance, time-consuming and can disrupt a practice. Many times patients admit to seeing several physicians prior to their visit with you. Oftentimes these patients will immediately perceive you as someone who listens and cares. You might also develop some insight as to why this patient is dissatisfied, angry and unhappy.

In Summary

It is important to communicate effectively, keep your practice organized, maintain accurate and thorough medical records, and identify those patients who are likely to pursue litigation. Most importantly, avoid poor judgment. Most malpractice cases I have reviewed are the result of poor judgment, ignoring an evolving complication or operating on a patient at high risk for litigation. Do not change the things you do well or stop providing certain services to patients because you have been sued.

   Although there are not many good things about a physician being sued, a lawsuit gives us a chance to reflect candidly on our practice and our relationships with patients. If you think there are some problems, then improve and eliminate those problems. This will decrease the incidence of litigation, make you a better doctor and, most importantly, be in your patients’ best interest.

   Dr. Catanzariti is the Director of Residency Training in the Division of Foot and Ankle Surgery at Western Pennsylvania Hospital in Pittsburgh.

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