Preamble
Yes, lawsuits are a big negative in contemporary America society. Particularly for MDs, often an easy target because we do not have control over Nature. But, because lawyers need to have lawsuits to bring home a paycheck, just as we surgeons need to operate to bring home our paychecks, lawsuits are not going away. Whether you are in private practice, university, VA/military, etc. you can be sued.
Here’s some advice on how to play the game. There is no 100% antidote to a lawsuit, but this should help.
Steering Clear of Big Trouble
- Prudent patient selection. Yes, of course, it begins with this. Learn to size up the patient and the case. Very tough and beyond your comfort zone? High risk for complications or dissatisfaction? Is it worth your time and effort to do this case? Will your life change if you do not do this case? How heroic are you? What is the risk/reward ratio not only for the patient, but for your practice? Beware revision cases. Beware the patient who is negative and who demeans prior doctors.
- Consider requesting a “consultation”from a trusted colleague. To be good at patient selection will take time and experience. Next year you will be better at it.
- Buy insurance. Why worry? If employed, make sure you see the policy your employer claims it has to cover you. If sued, you want one of the older, experienced med mal “super-specialists”. You need to know if you have any say in lawyer selection; the wrong one will cause you misery. If you are an employee, don’t assume your employer, e.g. a university or the VA or a given medical group has YOUR interest at heart. It has ITS interest at heart and many doctors have been thrown under the train. Always worth it to get a name of one of those super-specialist med mal defense lawyers from experienced MDs in your community, and pay him/her to look over the shoulder of the attorney your employer hired. You’ll sleep better.
- Avoid brand new, trendy surgical procedures. Don’t be the first kid on the block doing some new procedure you read about. Invariably, there will be more complications, problems, and dissatisfaction than the promoters will tell you about. And, patients “get it”when you explain why you don’t do what they saw yesterday on OPRAH. As a beginner, you must be extra careful not to stumble.
- Perform well-established, accepted procedures in the standard manner. If a complication or disappointment occurs, it’s a lot harder to find fault with you when you have done something that everybody else has been doing for a long time and has proven its worth. Patients understand that sometimes, despite your best effort, things don’t go well. Just don’t abandon the patient or ignore the problem. Stick with it.
- If you do have a serious complication/problem, request a consultation before the patient and family does. Pick your consultant carefully. Make sure the patient bears no cost. Do this and the patient and family will continue to have confidence. Better that you call another MD rather than the family call a lawyer.
- You must, if you are dealing with anything visible, take photographly-consistent before and after photos. If you are having complications or problems, take photos during the course of the management of them. Guaranteed, this can help save you from anguish because everybody forgets how bad they looked “before”or “during”. Be sure to photo-document complications, also.
- Keep a great chart. Your notes should say what you did, why you did it, and what the expected outcome is and what complications there might be. Document that you “explained all of this to the patient”. If the patient is not compliant, be sure to indicate that in the chart. If there are problems, clearly describe, with photos, and what you plan to do about it. Use computerized transcription program such as DRAGON, if appropriate. Especially if you can speak faster than you can type.
- If the patient misses an appointment, be sure that there is a dated chart entry that says: “Patient failed appointment”. Have your staff call the patient and remind them to keep the appointment. Sometimes, a missed post-op appointment is the first sign of dissatisfaction or lack of confidence, so you need to get on that problem while it is small, before it festers into something big. Always smart to see patients more often than less often. Why wonder how they are doing?
- NEVER write a prescription with automatic refills. Patients abusing pain medication is a huge national problem. Limit pain medications. Likewise antibiotics. Besides, shouldn’t you know why the patient thinks she/he needs more antibiotics, more pain pills, or whatever? It might mean they are not doing well, or they just love Vicodin — or selling it. If they claim prolonged pain or are not doing well, have them come to the office.MDs are tightly regulated by medical boards who are now seeking criminal charges for over prescribing narcotics. Think loss of license and jail.
- When things are not going well, request a second opinion — before the patient or family does. Give them the names of several colleagues whom you trust and who will not charge for the consultation. Call the doctor and give him/her a heads up on what’s going on. If necessary, you pay the consultant.
- Document telephone calls in the patient chart. Be sure to indicate if you told the patient to make an appointment. When I am phoning in a prescription for a patient, I even document the telephone number of the pharmacy (then, no question the drug was ordered; if they did not pick up the Rx, is it your fault?). It may sound like a hassle, but a little time doing everything right saves a load of “repair time”later. Anything beats having to deal with lawyers.
- Unjustly dissatisfied patient? Partial refund, signed “release( “I cannot sue you in exchange for this refund”) and say “good-bye”.Often your med mal insurer will contribute to the pay-off. Remember, “If you can buy your way out of a problem, you have no problem”. Great generals know the value of a timely and strategic retreat. There is no shame here, only a smart professional and business decision. Cut your losses.
I hope this helps you. Remember, try not to take med malpractice lawsuits personally. I know it is easy to say but lawsuits are about money. Period. The other side may or may not like you. That does not matter. They just want money. Welcome to the American civil litigation system. Wealth transfer from you to _______.