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Essential Keys To Preventing Malpractice Lawsuits

Improper documentation, sloppy record keeping or bad communication with patients can trigger a malpractice lawsuit. Accordingly, this attorney presents pointers on ensuring due diligence and keeping yourself out of the courtroom.

As an attorney representing victims of medical malpractice in the New York City area for 35 years, I have seen my share of podiatry malpractice cases. Notwithstanding all of the podiatric education for malpractice prevention, I see the same mistakes — sometimes by the same practitioners — happening over and over again. So I have no hesitation sharing some of my experiences in this area because if history is any measure, the same mistakes will continue and dissatisfied patients will keep calling me.

The typical path of a podiatric malpractice case follows this sequence. The patient has a bad result or is angry, frustrated or upset over a bad result. The patient (or family or friend) contacts and retains an attorney who has experience in podiatric malpractice litigation. The attorney conducts his or her own review of the relevant X-rays and records. Last, if the attorney determines that further investigation is justified, an expert podiatrist reviews the material and opines that the claim has merit. Once the allegation passes these hurdles, a suit commences and you are now in litigation.

Once the case starts, you leave all decisions, defensive strategies and tactics to your attorney but if you know what triggers the sequence of events leading to a suit, you might be able to influence the sequence and avoid a lawsuit entirely.

The sequence of events I have just outlined revolves around the patient and the patient’s attorney. Here are some things to keep in mind to avoid triggering some of these events.
 
Create A Good Relationship With Your Patient
Once there is a bad result, the filing of a malpractice suit starts with the patient, perhaps prompted by a friend or family member, consulting an attorney. However, the starting point is the patient who either believes he or she has a bad result (or the friend or family member who in turn suggests seeing an attorney). The easiest way to minimize the filing of a lawsuit is to have that kind of relationship with the patient so neither the patient nor the friend or family will think there is a reason to speak to an attorney.

Clients often call and tell me that their podiatrist never explained something, ignored what they felt was an unexpected result, did not spend enough time with them or just kept saying “give it time, these things can take months or more to heal.” When I hear this, it tells me that there is no longer a good relationship between the patient and the podiatrist, assuming one was even there from the beginning.
All of you have probably learned how to have a good relationship with the patient. First, get to know your patients beyond the immediate foot complaint they come to you with. Ask about their job, their children or what their spouse does for a living. Ask about the patient’s physical activities and interests, which will also help in treatment planning. If you have a patient whom you like and who likes you, there is less of a chance that he or she will want to bring you to court.

How far should you go to have that nice relationship with your patient? Should you engage her or him via email? Should you friend him or her on Facebook or other social media? There is no hard and fast rule I can think of for emails and social media except this one: be careful. Your patient hears what you say in the office. Everyone can hear what you say online and it will be preserved and resurrected if needed. If you want a rule to follow, I would say emails are fine as long as you are careful and accurate, and do not use them as a substitute for an office visit. I would say “no” to social media sites such as Facebook and Twitter.
 
Educating The Patient On Post-Op Expectations
A common reason for patients calling me is that they had unrealistic expectations from surgery. I often find myself speaking to potential clients who are telling me they still have pain after surgery or that the toe is stiff. When they tell me that the surgery was only a month ago, I know that while this may be the beginning sign of a bad result and possible malpractice or a perfectly normal postoperative course, the patient clearly did not receive proper education as to what to expect after surgery. I would not take on a case if this were all I had to go on. There is not enough to justify my time and money in this circumstance. Even though a careful attorney will not likely accept a case under this scenario, by not monitoring your patient’s expectations, you have now put an attorney at the patient’s beck and call.

How do you monitor the patient’s expectations, particularly in regard to surgery? I find that while most podiatrists very quickly tell the patient the good, such as relief from pain and deformity and the ability to wear a stylish shoe after surgery, many are a little shy on explaining the downside, such as the short- and long-term disability to be expected and the limitations of surgical correction of deformities. So how much do you tell the patient on the downside? This ties in with informed consent but suffice it to say here that you should make the patient aware of the short-term issues and the long-term (permanent) conditions that can result from the surgery.
           
Tell The Patient When There Is A Bad Result
Perhaps you performed what you thought was a standard Austin/Akin bunion correction, performed it the way you always do with no intraoperative complications and, at least on the operative table, obtained a good reduction of the deformity. Three weeks later, perhaps when removing all of the dressings, the patient notices a wide space between the big toe and second toe and says “Dr. Clinton, I knew my big toe would not be touching my second toe anymore but it looks like there is a large gap between them and it looks funny.” You just ended up with a hallux varus and now the patient notices it. What do you do?

A hallux varus occurring this soon after surgery is clearly a bad result (and in my view is almost always the result of a surgical error or miscalculation). When the patient meets me for the initial consultation six months after surgery and the varus is still obvious, there is going to be little stopping me from taking on the case. Can you do something to minimize the likelihood that patient will look for an attorney?
First, the worst thing is to ignore the varus or tell patients it is not really a problem, or that it will resolve on its own. The best thing to do to is to admit to result and treat it. If you have a good relationship with the patient, be honest with the patient and make him or her a partner in the treatment plan. Then that patient may not see the need to contact an attorney, especially if he or she understands there is an option for surgical correction of the varus.
 
Maintain Accurate And Complete Medical Records
Once I accept a case and receive a copy of the medical records, there are many things I look for before I consider contacting an expert.

I look for poor documentation, little or no history information, standard and non-specific examinations, and then a diagnosis for which there is little backup to support it. I look at the forms filled out for the initial presentation, especially what the patient wrote as the reason for the visit. I look for some semblance of the pedal history, especially if there were prior treatments. I look to see if you documented the types of physical activity the patient enjoys. I look at how you documented your examination, especially for the specific areas of chief complaint. If you took X-rays, I look for your notes on your evaluation of the X-rays.

I want to know if you recorded details as to specific measurements for surgical planning at this first visit and if you did, then I would consider that you bypassed conservative care and were determined to operate on the patient. I want to know if you merely paid lip service to non-surgical treatments or if you really tried to help the patient avoid surgery by going through a period of conservative measures. If the patient says he or she tried various modalities in the past, I want to know if you made an effort to find out what they were or if you tried your own modalities.

Having those details in your notes says to me you were not doing your surgical planning at the very first visit. Conversely, if you were planning surgery with only one preoperative visit (i.e. the initial visit), you have now added to my interest in the case.

When I see thorough “new patient” documentation, as a plaintiff’s attorney, it shows you gave some thought to this individual and her needs. Here is an example of a new patient entry that I enjoy seeing but that you should avoid:

A patient presents with bunion pain for two years. He wants surgery. The exam revealed bilateral bunions/hallux valgus. The surgeon planned an Austin/Akin bunionectomy and had the patient return in one week for surgery.

When I see a well thought-out and detailed office charting, I know I may be up against a podiatrist who will be no pushover. Careful charting may not change my mind in taking on that case if the malpractice is obvious. However, for those borderline cases, good record keeping on your part can make the difference in my decision to take a patient’s case.
 
The Pitfalls Of Over-Reliance On Templates, Forms And Standardized EMR
You all know of optimizing office practice by using templates, forms and electronic medical records (EMR). Software programs produce a record from standardized templates or get “pre-populated with content.” What I see is a lot of boilerplate medical documentation.

What increases my enthusiasm for a potential case is generic information that is clearly computer generated and repeated every visit with little or no detailed information for this patient. In one egregious case, the patient had a left foot bunion correction while most of the pre-populated content referred to a right ankle sprain and this was for almost every visit. The podiatrist just ignored all of the pre-populated content and used a fill-in-box at the end of the entry for “free hand” typing of the details of the visit. What she typed in free hand was completely lacking in details with most entries saying nothing more than “dressing changed, healing normally, return 2 weeks” or something similar.

If I read a record and it contains very specific information for the patient, even if there is obvious boilerplate information interspersed, that tells me the podiatrist made an attempt to document his or her treatment of my client. In many cases, a well-documented record is better for the defense than for the patient.
 
Ensuring Appropriate Imaging And Photographic Documentation
Not every patient needs three views with full weightbearing X-rays in angle and base of gait, but if you are doing bunion surgery, for example, you need to take these X-rays. Taking the shortcut by taking two views, partial foot non-weightbearing or just poor quality X-rays is something I look for to build my case. Not taking a postoperative X-ray when the postoperative course is not going as expected is also something that is helpful to the patient’s case.

A hammertoe case is a perfect example. Consider a patient who comes to me complaining of a bad result from hammertoe surgery and also tells me she does not understand why she even needed the surgery since she did not think she had hammertoes. What convinces me she is wrong would be your preoperative, full weightbearing X-rays in three views, clearly showing hammering of the digits. Absent that and absent photographs proving or not proving the existence of hammertoes, I usually believe the patient has a good claim of unnecessary surgery.

More and more podiatrists are taking photographs pre- and postoperatively, and I think this is a good idea for the podiatrist. However, if you take photos, then you have to be consistent at least with the same patient. I have seen cases in which there was bilateral surgery yet the podiatrist only took a postoperative photograph of one foot — the good result — but did not take a photograph of the other foot — the bad result.
 
Do Not Alter Your Records
All medical professionals learn not to alter or change their records. Electronic medical records and related software usually have a function that prevents the alteration of a note and forces the user to instead create an addendum with the date and time of the addendum. Although I expect to see fewer paper records, I still see handwritten records on standard “medical” or lined paper. These are tempting to alter or add to the existing record. Don’t do it. Even if the patient and/or the attorney are unaware of it, or are aware and cannot prove it in court, your attorney will likely know. That in turn could influence how he or she handles your defense and how your liability carrier adjusts the claim.

Best advice: do not even think of altering your record.
 
Obtaining Patient Consent: What You Should Know
Most if not all jurisdictions allow recovery for consequences from surgery if it occurs without informed consent, even if there was no malpractice. While many attorneys believe it is hard to win “lack of informed consent” cases, I disagree. Getting the patient’s consent on the day of surgery leaves open numerous arguments based on the fact that the circumstances of the moment do not allow for a meaningful discussion and thoughtful reflection by the patient. However, consent is usually more complicated than just getting written consent an hour before the start of surgery.

One will usually document consent prior to the surgery date. If not, it is better for the patient’s case. When the physician documents consent before surgery, what I like to see and what you should not write is only the briefest mention of consent (i.e. “RBA discussed”).

On the other hand, it will be hard for patients to successfully argue they did not know what they were agreeing to when they signed the consent form at, for example, the last office visit prior to surgery. Some podiatrists also give the patient a copy of the consent form, fully executed, to take home. It will be very hard to argue there was a lack of informed consent when this happens, especially if the consent form enumerates the potential risks and complications.

Consent forms should also be legible. As a patient attorney, there is nothing more satisfying to me in a lack of informed consent case when the “description of the procedure” in a consent form is in medical terms, and, as is often the case, handwritten in a scrawl no one can decipher except the author. Here is an example of language I like to see in my cases: “bunion correction with Austin, internal fixation, arthroplasties 2-5.”

Should your consent form list the potential complications and risks of the procedure? Many forms used do not while others list as many as 20 such outcomes, all generically phrased with no specificity for this patient. The best case for the patient is the form with no risks enumerated but listing 20 generic risks would be better for the podiatrist, even if some do not apply. I would suggest circling the most important or the most common risks on these forms.

Diagrams of the feet accompany many consent forms with handwritten markings added to show where on the feet the surgery will happen. In these cases, I cannot build a strong case on the argument that the patient did not understand which joint you were operating on when the diagram clearly shows the exact joint or location you plan to address.

In regard to informed consent and avoid lawsuits, here are some key bottom line points:
• Get written consent prior to the day of surgery.
• Describe the procedures in non-medical terms and in legible and understandable language (typed instead of handwritten is best) and list potential complications.
• Use diagrams.

To make a consent case even harder for the patient to win, I would advise providing the patient with a copy of the fully executed consent form and having the patient initial the original to acknowledge receipt. If you do this, you will make it very hard to argue there was a lack of informed consent.

Remember this. By the time I am reading your record to determine if there is enough evidence of malpractice to file a lawsuit for my client, the patient has already had the bad result, left your care, spoken to and then retained an attorney, and you have already sent your records to the attorney for review. I have outlined several tips for you to look for to hopefully break this chain of events and perhaps avoid a malpractice suit.
 
Mr. Karam has a law practice in New York City. His focus is representing plaintiffs in medical malpractice cases.

For further reading, see “Proactive Pointers For Preventing Malpractice Lawsuits” in the September 2010 issue or the DPM Blog “Dead Men Do Tell Tales: When Neglecting Family History Leads To A PE-Related Fatality And Malpractice Lawsuit” by Allen Jacobs, DPM, FACFAS at http://tinyurl.com/3gtxzzl .

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Lawrence M. Karam, PC
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