Simple Communication Can Help Prevent Costly Malpractice Suits

Each year the healthcare industry weathers a heavy financial burden: the cost of medical malpractice claims. In the article “10 Ways to Reduce Medical Malpractice Exposure—Doctors, Lawyers, and Lawsuits,” which was published in the March 2002 issue of Physician Executive, Dr V. Franklin Colon reported that the annual dollar costs were well into the billions. The solution to the problem, however, is not to pay out exorbitant premiums to ensure adequate malpractice insurance coverage. It is much simpler than that.

“I think oftentimes the simplest things are the most effective,” said Gerald Chambers, a medical malpractice defense attorney at the law firm of Turner Padget Graham & Laney P.A., based in Columbia, South Carolina. “Communication is one of the major factors in avoiding litigation and assisting in the defense of a lawsuit, as well.”

And it takes only a few minutes.

Building Rapport

Peter Hoff man is an attorney and chair of the Professional Liability Group at Eckert Seamans, a law firm in Philadelphia, Pennsylvania. He said that people go into medicine be cause they want to help others. They work hard in college and medical school, and then at some point between their second year in medical school and when they become an attending physician the situation changes. For many physicians, several factors—such as the sheer amount of work and responsibility— can cause them to treat patients as cases, not as people.

“Th e people and families that they’re dealing with…are under a tremendous amount of stress [and] uncertainty, and they know their life is changing—and certainly not changing for the better,” Hoff man explained. “I think that the most important thing for [oncology fellows] to realize is that they’re dealing with people, not 3 x 5 index cards. And they owe to their patients and to themselves, the time that it takes— maybe time that they don’t think they have—to develop a relationship and rapport with these people and with their families.”

Chambers echoed those thoughts. He said that numerous lawsuits are brought by patients or their family members simply because they got angry with the physicians. Th ey feel that the physicians have not spent enough time talking with the patients and helping them to understand their cases.

“Sometimes it’s just that the patient is upset with their doctor because they feel like they’re not being given the time and the attention that they deserve,” Chambers said. “Often this is avoided by simply spending a couple of extra minutes with them.”

He also pointed out that discussions between physicians are equally important, especially in an oncology practice, where various consultations with the patient are necessary and sophisticated lab tests need to be ordered. It is also critical to communicate with the lab to ensure that the results of an ordered test do not slip through the cracks.

“And make sure the results are being communicated between the various physicians who may be taking care of a patient,” Chambers added. “Because often it’s not just 1 doctor who’s taking care of a patient, it’s a team of doctors. And you need to make sure that everyone understands what the game plan is and who’s responsible for what.”

"Gerald Chambers said that numerous lawsuits are brought by patients or their family members simply because the got angry with the physicians."

Detailed Documentation

Along with communication, documentation is critical for helping to avoid malpractice claims. Even effective, thorough communication should be documented. Dr Barry Lang was an orthopedic surgeon for 23 years and has worked for the past 15 years at Law Doctors, a medical malpractice agency based in Boston, Massachusetts. He claimed that he was able to effectively link communication and documentation during his years as a practicing physician.

“I had a Dictaphone in every examining room, and the purpose was several-fold,” Lang explained. “Number 1, when you speak with a patient—when you take their history and describe what their treatment program is going to be—it helps to have the patient hear it a second time. And since you have to make notes of the encounter anyway, you might as well give the patient the opportunity to hear it a second time.”

Lang continued, “So after I had completed taking the information from the patient after the examination, instead of waiting until the end of the day to try to recall what may have gone on with 20 or more patients—or just scribbling a few notes where I might leave something important out, and then leaving the patient with just 1 conversation between the two of us—I would pick up the Dictaphone and I would dictate a complete note of what just transpired.”

Lang said the Dictaphone not only saved him time and effort, it gave the patient the opportunity to hear the exchange a second time and opened the door to an additional opportunity for discussion.

“Th en you ask the patient, ‘Did I forget anything and do you completely understand?’” said Lang. “If there are any questions at that time, you can go over them. So not only does that help the doctor, it also helps the patient. In addition, it may help avoid litigation—or if there is litigation, you have a set of notes that outline everything you did for your own defense.”

Chambers agreed. He says it is critical for oncology fellows to ensure that patients understand, to the best of their ability, the recommendations and treatment options they are being presented with. And in the field of oncology, it may be difficult for a layperson to understand the concepts and terminology that physicians often take for granted.

"Just because the document states that the form covers everything, including death, does not completely protect the doctor."

“It’s a lot easier to put an X-ray up on a screen and say, ‘Okay, here’s where you broke your arm’ than to put up an MRI and say, ‘Th ere’s where your cancer is,’” Chambers said. “I think with oncology more so than other fields, you just have to take more time to explain to the patient what their situation is and what the treatment options might be. You don’t want to over-document, which can become problematic as well, but you need to communicate, and you need to document your communication, as well.”

Informed Consent

Lang noted that a very important part of communication is informed consent. Too often the informed consent form is just a printed sheet from the hospital that is very generalized. “And I would say that in my practice, about 9 out of 10 times, nothing is filled in by the doctor,” he claimed. “Th ere’s just a signature on the bottom of the page by the patient and the doctor.” Lang explained that informed consent does not relieve the doctor of negligent care. Just because the document states that the form covers everything, including death, does not completely protect the doctor. Instead, the physician needs to write in certain common complications that he or she has spoken about with the patient.

“A doctor isn’t responsible for writing down every possible complication of every procedure,” Lang said. “His writing would have to be encyclopedic. He doesn’t have to include extremely rare complications. Th e law protects him with that.” Lang continued, “But if the doctor knows that there are certain complications that can occur with a surgical procedure… he should write that down so the patient understands, and so the patient can’t later say the physician didn’t discuss that.”

Lang also stressed that there is a time and place to obtain a patient’s informed consent. He said that the form should be signed during an office visit before the patient is admitted to the hospital. Th at indicates that the doctor has spent time talking to the patient and that the patient did not sign a bunch of papers without reading them while stressed and/or medicated.

“You’re talking about the expenditure of a few minutes to save 4 years of litigation,” Lang said. “It’s well worth the investment. A lot of doctors are rushed, they’re overworked, and these things slip through the cracks, and then they get into trouble. And it’s really so easy to take those couple of extra minutes just to avoid the litigation.”

A Matter of Trust

Hoff man explained that the bond between patients and physicians is very important. He urged physicians to look their patients in the eye and talk to them as if they matter—as though they were speaking with their own aunt or uncle. Hoff man said, “Put them at ease and develop a trust.”

And when things go wrong? Hoff - man said, “[With something] as simple as an IV injection that’s not done the right way, or [with] an IV that’s hard to establish and the patient is in pain, the physician has to say, ‘I understand this happened and I apologize for that. Th is is what we’re going to do to try to make it better.’ That’s a skill that’s not taught.”

Hoffman pointed out that cancer is often referred to as The Big C, but that “C” also stands for “communication.” He said, “You only have so much time with the patient, but you want to make them feel that they’re the only thing on your mind at that time.”

If You Suspect Litigation

Despite all your precautions, malpractice claims are going to occur. Chambers said that if there is even the slightest hint of litigation on the horizon, you should contact your malpractice insurance company.

“Typically, most [malpractice] carriers will go ahead and investigate the claim and even retain an attorney to investigate it,” Chambers said. “For instance, if you get a request for a medical record saying something to the effect [of] ‘We are requesting the medical record of this patient to determine whether or not the treatment you provided was appropriate’… you need to immediately put your carrier on notice, and more likely than not they will get an attorney involved in investigating that claim early on.”

Chambers pointed out that in most states the statute of limitations is somewhere around 2 to 3 years, and it is typical that a plaintiff ’s attorneys will wait until the very end of that time to file a lawsuit.

“All of a sudden you’re trying to remember back to what happened 2 years ago, and people may have moved on,” he said. “There may have been a key nurse involved who is no longer there, or a partner [has] moved on. It’s just not as fresh in your memory. So it’s always best to start investigating those [malpractice] claims at the earliest opportunity.”

Ultimately, there are no guaranteed, surefire ways to make you immune from malpractice charges. But if you show your patients that you are not arrogant, you care about them, and you will take the time to allay their fears, you have made a crucial first step toward potentially preventing a costly lawsuit.

Ed Rabinowitz is a veteran healthcare journalist based in Upper Mt. Bethel Township, PA.

This edition of Oncology Fellows is supported by Genentech, a member of the Roche Group.