Avoiding the Malpractice Trap

Malpractice is back in the news with the Florida Supreme Court ruling that non-economic caps are unconstitutional.  In California, the cap will probably be adjusted to cost of living increases making it at least $1,000,000 for pain and suffering.

With the affordable care act putting more financial pressures on providers, not dealing the malpractice issue at all will lead to higher costs inevitably.  One main reason malpractice claims in two high risk states like Florida and California were semi under control - it is too expensive for lawyers to take on marginal cases.  Marginal cases equal low potential return on investment (ROI) regardless of the facts.

The trick is never getting named in a lawsuit.  Even if you win, get dropped, or the case is not formally pursued, there are still legal fees and emotional distress.  Providers are instructed to view malpractice as a cost of doing business, but most people cannot separate business reality from a very personal attach on their core identities.

Suggestions to stay out of trouble that do not include more tests or defensive medicine.

1. Keep well informed about trends.  Risk Management Monthly (no financial ties) does an excellent job.
2. Be aware that the patient is judging you on punctuality, and feels their time is just as important as yours.  A good strategy is to always apologize about the wait time even if you are early.
3. Introduce yourself to the patient and their support team.
4. Find out what brought them in today aka motivation for the visit i.e. wife insisted, worried about a stroke, death in the family, etc. Responding to their pressing need eliminates the provider didn't listen to me!
5. Allow the patient to speak for at least 60 seconds before the cross-exam begins.
6. Use the data other people have collected by confirming, not by asking the same questions over and over.
7. Verbalize the battle plan and make an estimate the time frame.  If possible, have your staff in the room for this, everyone is aware of the plan.
8. Check on the patient to see 1) if their pain or comfort has been attended to and 2) to give an update to the progress of the plan.
9. Do not tell jokes.  The patient is not sure if you are laughing with them or about them.
10. Use shared decision making, if appropriate.  Critical patients and their support team want to be consulted.
11. Give the patient very specific follow-up directions with specific time durations.
12. See a patient in a recheck as a second opportunity to get it right.
13. Document a clinical course and important conversations with patient, family and consultants.
14. Be aware of the limitations and positives of your documentation system.  Remember all entries are time-stamped.  Explain why the EKG was recorded being read at 14:00, but was read at 10:00 , especially if clinically significant.
15. When patients disagree with you and want to leave against medical advice, it behooves you to personally come to an agreement on the situation.  Delegating to a staff member is a huge error.  Make sure the patient knows they can always comeback, have witnesses especially their support members in the room, and give appropriate prescriptions for needed therapy.

Avoiding being named is the key to success.  Following common sense protocols does not increase time spent, but actually speeds up process because the patient and their support team are informed.  People sue because they are mad or frustrated.  They usually cannot determine quality care, but they know how they feel about you.