Malpractice: A Guide to Getting Sued

This primer on malpractice is an excellent review for all providers regardless of their level of experience. It divides this dark side of practice experience into two realms: protection and defense.

The article is, in reality, a basic “course” that has as its last chapter what should be the first: "How to Avoid Getting Sued", and goes through common sense steps to reduce risk, including being sure you have the right diagnosis, asking for help, retiring when it is time, informing patients of needed tests, being friendly, communicative, and unrushed, following up, and documenting well.  No kidding!

When it comes to what to do, and how to respond when a suit is attempted or initiated, the article notes among other things: “Know how to prepare for depositions and trials to increase your chances of winning” and “Evaluate when to settle vs when to go to trial by weighing key factors.”

Throughout the piece, key factors that lead to malpractice claims are highlighted, including:

• Poor communication
• Not listening
• Not following up labs, tests, and outcomes
• Lack of supervision of team members
• Bad outcomes
• Bad “Luck”
• Being at the wrong place at the wrong time (also known as bad luck)
• System errors- Electronic Health Record issues
• “Lottery Mentality” of some patients (looking to sue they are watching you)
• Being named with multiple other providers (lawyers taking the deep pocket approach that casts a wide net)

Some easy(?) solutions to consider:

• Let the patient talk interrupted for 1-2 minutes before interrupting
• Find out his/her/family’s motivation for the visit
• Find out what the patient/family is concerned about and focus on those issues
• You may have to consciously work to include family members or surrogates
• Apologize for making them wait for you even if they have not
• Control expectations (any test whose results you expect in an hour, should be noted to the patient as requiring three hours)
• Always attempt to involve the patient and family in decision process
• Have a robust follow-up system for all data that is outside of normal range, potentially problematic, or of concern. Also follow up on all patients who were extensively evaluated to be sure they are doing better and to encourage their effort at follow up. Be sure these follow up efforts are well documented.
• Talk in common language without medical jargon (aim at 6th grade level of comprehension)
• Have the patient repeat what the plan is before they leave
• Create focused documentation with pertinent positives and negatives and a cohesive follow-up plan

The bottom line is that when a patient perceives that you are working on his behalf, that you care about him, he (or she) will be reluctant to sue even if inevitably some things go wrong.