In today’s environment you can never be assured that a patient/family will not sue you for malpractice. However, practicing defensive medicine is not in the patient’s best interest or your best interest. The best way to avoid a claim is to have your practice centered on patient safety and service excellence. Collectively these two endeavors provide for continuum quality care and minimize the opportunity for a lawsuit to surface.
According to Healthcare Risk Management issue August, 2008 the most common paths to litigation include: failing to communicate test results, failing to follow up with patients, failure to document communications with patients- including phone calls, blowing off informed consent discussions, and lapses in record keeping. If you look at these itemized points they boil down to the same thing- COMMUNICATION (including written and verbal communication). It is not just what we say, but how we say or communicate to each other and patients.
Communication during patient care is crucial to ensure continuum of care, to ensure true informed consent and decision making, and to ensure a solid relationship between patient and physician. Just as important is communication to the patient and other caregivers especially after an incident has occurred and/or after you have been put on notice of a claim/suit.
Naturally, disclosure of an event to a patient is part of continuum of care. What is said, how it is said, who it is said to need thought and immediate attention. This dialogue may be more than a one time encounter. All dialogues with the patient or their family need to be documented. Honesty, sensitivity, and objectivity are important to this process.
Beyond disclosure to the patient there are other needs to communicate an incident, for example, to quality, administration, other care givers, and risk management. Note, that any communication about an event or patient care regardless if verbal or written is discoverable. Any progress note in the medical record, any meeting notes, and any e-mail are discoverable. Often we use e-mail to communicate: ask questions, make assumptions, and vent. Given it is discoverable, e-mails should be very limited when involving patient information. Once in print it is memorialized forever. If questions or assumptions that need to be worked through then a phone conversation is best. Additionally, Event Reports are discoverable. They are a tool for administration, quality, and risk to identify problems, address concerns, and take corrective action to prevent further incidents. Originals should be forwarded to Risk Management once completed. Copies should not be made.
When notified of a suit acknowledge it immediately. Don’t put it in a drawer and hope it magically disappears. Communication with your insurance carrier (for HAN physicians communication with CKHS risk manager) is crucial and should be done as soon as possible. Immediate attention and response is necessary to avoid further problems or potential default judgment. Defense counsel will be assigned by your insurance carrier to properly represent you. He/she is working for you. You need to have confidence and trust with assigned counsel. Communication must be complete and candid in order for them to best represent you. Remember, that all communication with your counsel is protected.
The more information you can provide to your carrier/counsel and the sooner it is provided will help you and your counsel to evaluate the extent of your exposure and to posture your position in the defense of the claim. Any medical records, administrative meeting minutes, logs, schedules, private notes are all discoverable. Once you have been informed of legal action, collect all paperwork, files, correspondence, bills, e-mails, records, and reports and secure them in a safe place. Originals should not be released to anyone. Any electronic file should be secured as well and ensure there is no alteration or deletion of such records. Securing the record ensures that there is very limited access to the record and ensures that it will not be altered. Value of given claims has risen dramatically as a result of someone changing the date, adding a progress note, or “whiting out” a word. The shift of the case is now focused on fraudulent activity as opposed to the medicine.
A word of caution; however, is to refrain from talking about the case in question with anyone except your defense counsel. Do NOT call plaintiff’s counsel or plaintiff once there is a lawsuit. Conversations are NOT protected unless it is the context of an attorney-client dialogue or peer review meeting. Finally, remember anything in peer review or process review setting is confidential and cannot be disclosed to anyone.