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.

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