Intake personnel at plaintiff firms are trained to ask leading questions and to filter out the cases worth investing time and money in.

Outpatient surgery is largely safe and uncomplicated, but when errors do occur, a medical malpractice lawsuit can follow. Based on my time working for a plaintiff firm, here are insights on what these firms look for, so you can better defend yourself.

The assessment
When talking to potential new clients, plaintiff attorneys look at 2 things:

• Who is the owner/management company? This will tell them assets and insurance, which equals potential for settlement.
• What are the injuries? This will tell them the potential for settlement in dollars.

The firm I worked for had a process. We initially accepted almost any case, unless it happened at a facility with a single owner or very few owners, and with very low insurance limits. Intake personnel at plaintiff firms are trained to ask leading questions and to filter out the cases worth investing time and money in. My firm had a blueprint for asking former and current employees questions about staffing, supplies, monitoring and the overall attitude toward care — a comprehensive tool to determine risk management that could be used in a claim.

If warranted, we'd request the records and conduct a review to determine all the issues that could be exploited. An RN or someone like me, who was trained to conduct and write reviews, would handle the review. Some of the items we'd dig into first:

• discharge summary (we'd pay special attention to such items as diagnosis, pre-op testing, procedure notes and post-op monitoring),
• admission assessment,
• narrative nursing notes, and
• labs and diagnostics.

We'd pass that review on to the firm's partners, who decided whether we'd accept the case. Keep in mind that firms have a very short window in which to review the medical chart and determine if they want to take the case. It can cost upward of $200,000 to run a case all the way to trial — where it can potentially be lost. Most firms don't want to take that kind of chance right now, but if they feel strongly, they'll go the distance.

Building the case
Once the reviews are done and the injuries suffered by the plaintiff have been determined, almost everything — outside of plaintiff and family member depositions — that builds the case is external. If you've had any recent complaint investigations or bad results on a state, Medicare or accreditation survey, these will be brought up. The depositions, along with requests for licensure files, will also be aimed toward determining corporate structure, in order to figure out who could be named in the suit and, therefore, potentially responsible for the payout at judgment.

In addition, be very careful what you put in your marketing materials and what company names you associate to a given location or ownership of a given location. Marketing materials are fair game in discovery and turned over without much thought — but they often provide information regarding ownership and governance. As a result, it might be a good idea to have a lawyer or compliance practitioner look over your marketing materials before they're published.

LEGAL DEFENSE
5 Rules to Mitigate
Your Med Mal Risk

1. Address patient risk during the pre-surgical consultation.
2. Review your marketing materials.
3. Defensively document cases.
4. Give patients realistic expectations about surgery and recovery.
5. If you have to testify, don't be meek. Remember, you're the clinician.

— Jack Bevilacqua, CHC, CPC

Your lines of defense
There are 2 fronts to fight on. At the facility level, the issues are clinical and risk-management oriented. At the corporate level, you should be concerned with strategy, policy and procedures, retention of employees — just about anything outside the scope of the specific care in the facility.

• Facility level. Address risk during pre-surgical consultation. The best way to do this is to be honest with your patients about what they can expect from the actual surgery, the recovery and life after surgery. Patients often aren't told these things or are sold glorified results — and when they don't get those results, they sue. Give them realistic expectations and document what you say, so you're protected should the surgery result in a lawsuit.

At all times when a patient is in your facility, focus on quality of care. Train staff to recognize when an incident could become a lawsuit and, when one occurs, collect as much information as possible to filter through your general counsel, who should be someone you trust to be objective. Get any potential case reviews done quickly.

Ensure that all licensure files are filled out properly. Be sure to review patient documentation and lab results fully to determine whether outpatient surgery is really the best plan of care. Train staff to "defensively document" in all instances — careful, accurate, complete charting paints a picture of specific occurrences and reflects the overall attention to detail in the care your facility provides. Nurse and physician charting alike should provide clear, sound backing for clinicians' medical decisions.

• Corporate level. Develop policies and procedures to review marketing materials to incorporate risk management and to swiftly and objectively review records. Make an effort to measure surgeon and nursing satisfaction, and use their responses and ideas to devise ways to keep the top-performing and most satisfied staff. As another preventive measure, ensure the best clinical staff are involved in your survey, inspection and accreditation upkeep.

Be an active and positive presence in the community. If a plaintiff fights you by way of the press, be prepared with a public relations strategy. Finally, if you do have an incident with the potential for a lawsuit, be objective about reviewing it, filter it through your lawyer and be proactive about dealing with the effects.

Going to court
If you decide to fight, then go the distance — don't stop in the middle for a settlement — because it will take time. Chances are, the plaintiff's lawyers will stretch out the pre-trial process until the final days of the statute of limitations. Trust in your counsel, and let them be aggressive.

If you have to testify: Remember that you're the clinician. Be confident that you've been trained and educated to care for patients and make clinical decisions in their best interests. Lawyers have been trained to argue, think critically, question and advocate for their clients. They may act as if they know your job better than you do, but that's definitely not true. Also, even the calmest lawyers get frustrated by the answer, "I don't recall."

Tragic things will always happen in healthcare facilities, and there will always be human error. It's how you defend claims — and keep mistakes minimized and isolated — that will determine how often you are sued, and the outcomes of suits.