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How to Defuse Malpractice Suits
Expert tips on minimizing the risks and advice on how to proceed if you are sued.
Bill Meltzer
Publish Date: June 9, 2008   |  Tags:   Medical Malpractice-Legal
In today's litigious society, it's likely that very few health care professionals feel immune to the possibility of a lawsuit. What they may not realize, however, is how prevalent this threat really is.

For the St. Paul Companies, one of the nation's largest malpractice insurance carriers, the effects of the increasing tide of medical malpractice litigation and skyrocketing premiums became clear too late. After the company's malpractice business lost $900 million in 2001 alone, company officials announced early this year that St. Paul would no longer offer malpractice insurance. In explaining the decision to exit the industry, the company presented the following statistics: 20 percent of anesthesiologists and minimally-invasive surgeons will face at least one medical negligence action at some point in their career, while 25 to 35 percent of general, cardiovascular, and orthopedic surgeons will face a claim.

This problem affects health care facilities as well, as the facility and surgeons are typically sued as co-defendants. In fact, a facility can be held liable for the actions of every surgeon and every staff member, from the OR manager to the receptionist. Here we'll discuss the areas where facilities need to be extra vigilant to avoid malpractice suits in the first place as well as defend against them. We'll also provide a primer on malpractice insurance and tell you what you need to know if you are sued.

The seven areas of concern
Deborah Krohn, Esq., RN, Baltimore, Md., a former nursing supervisor at Johns Hopkins, identifies the following seven different ways that malpractice and nursing negligence suits can arise (whether they are legitimate or not):
  1. Delays or failures to diagnose a problem; biopsies are of particular concern;
  2. Failure to obtain patient (or proxy) consent;
  3. Surgical errors- for example, wrong site surgery;
  4. Anesthesia risk diagnosis and procedural mishaps;
  5. Accusations of careless breaches of patient privacy;
  6. Medication errors-giving the patient the wrong drug or a contraindicated drug, prescription errors, etc.;
  7. Failure or misuse of a medical device-an electrosurgical unit or an anesthesia machine, for example.

Experts say that the vast majority of malpractice claims are settled before they go to court, and among those that do get tried before a jury, 80 percent are found in favor of the caregiver. But, notes Judge Dana Levitz, who sits on the Maryland Circuit Court for Baltimore County, "The costs of defending of a malpractice suit, even if you win, are very high, running into tens of thousands of dollars in legal fees. And even if the lawsuit was without any merit whatsoever, it is still a spot on the facility and the physician's record." This is why even somewhat weak claims are typically settled.

Record keeping and communication: the two biggest pitfalls
Health care professionals often assume that the "simple" way to avoid malpractice is to keep it from occurring at all-that is, provide excellent clinical care. Unfortunately, that's not always enough. The onus is on you to not only provide excellent care, but also be able to prove that you did everything right, and, perhaps most importantly, not give the patient any reason to doubt you.

Experts say that by far the two most common causes of malpractice awards are poor record keeping and poor communication skills (both internal communication and lack of a "customer service" orientation with patients). In the worst cases, these flaws can lead to a patient being physically harmed, but even if the clinical outcome is fine, shoddy records and poor customer service can severely weaken a lawsuit defense.

Record keeping: More than any single factor, the veracity of your facility's medical records will be the make or break point of a malpractice claim. Says Judge Levitz, "No matter how competently you care for the patient-you can do everything right-bad records leave you extremely vulnerable to losing a malpractice suit or being forced to settle for high levels of compensation. As far as juries are concerned, if it isn't in the records, you can't prove it. And if it is written one way, you can't successfully claim that it happened another way." In the event of a lawsuit, says Judge Levitz, "the plaintiff's lawyers will do what they need to do to take apart your records-they will take them apart with a fine-toothed comb."

A common acronym for good records is FACT-factual, accurate, complete, and timely. Explains Ms. Krohn, "It sounds so elementary, but in a busy facility, it is easy to cut corners and wind up paying the price later. The records should document everything having to do with the case and include the notes from the physicians, anesthesia providers, nurses and administrative staff. You need to document that the proper personnel handled the patient from the time he or she entered the facility until the patient left-this includes noting who was on duty in the pre-op area, the OR, and the PACU."

Adds Alan Marco, MD, an anesthesiologist at the Medical College of Ohio, "Sometimes, there is a tendency to want the charts to look neat and tidy and only note the good things. That can get you into trouble. If something went wrong with the equipment, or even if something such as a slight drop in blood pressure occurred, you need to note it. First, it is a matter of quality control and accuracy. And secondly, it's an issue of self-protection to provide evidence that you recognized the problem and acted accordingly."

The following are some examples of gaps in records that can severely weaken a malpractice defense:
  • Failure to note any of the following: pre-operative discussions of the procedure and its risks, dates and times of pre-op phone calls (even if the patient could not be reached), or the nature of the procedure itself.
  • Failure to indicate patient consent.
  • Failure to note pre-op tests or procedures. Says Ms. Krohn, "It's helpful to have a checklist that is included in the charts. If you require pregnancy testing, pre-op bloodwork, or EKGs, check off that these tests were done. When you do an anesthesia risk assessment, make sure the provider notes his or her findings. Otherwise, even if you do everything by the book, it is easy for a potential plaintiff to question the standard of care the patient received. It will become evidence for the plaintiff to say ?Look, they can't even show they did basic bloodwork properly at this facility, much less the surgery.' And the stakes are even higher if pre-op diagnoses are in dispute. I know of a facility that got itself into major trouble because a pregnancy test was not performed."
  • Failure to describe the procedure according to accepted standards. Says Dr. Marco, "An example of this may be if, during a procedure, intubation failed and the chart does not reflect the progression of steps taken."
  • Failure to keep accurate nursing notes. Says Ms. Krohn, "The nurses on staff are the ultimate end users. Therefore, the nursing notes need to be just as detailed as that of the physician. For example, nurses must document when drug references have been consulted and where they were obtained from within the facility. It is the nurse manager's responsibility to keep a record that the drug references have been kept in a convenient place and that they are up to date."
  • Omitting drug administrations, or noting them inaccurately.
  • Erasing and writing over notes in charts. Says Judge Levitz, "It can be totally innocuous, but it raises major suspicion that you are trying to cover something up. The plaintiffs can insinuate virtually anything they want the records to say, and you have no way to show the jury otherwise." If changes are necessary, the Judge recommends, the change should be dated and briefly noted (why is it being changed) and the replaced information should be kept on file and kept readable (even if it is lightly crossed out, so as not to cause confusion).
  • Failure to keep specific job descriptions on file. Says Dr. Marco, "If someone isn't authorized to perform a specific task-even something such as applying dressings- then you can be called on it. Sometimes when the facility gets very busy, it can happen that people are asked to do things they may not normally do. This is especially true of UAPs (unlicensed assistive personnel). Based upon their level of competency, you can delegate certain tasks to them. But your facility records had better show that they were authorized to do so and that they were monitored, because it will be the facility that is held liable if something were to go wrong when they perform these tasks."

Here are some other common areas in which medical records can fall short.
  • Illegible writing- Says Dr. Marco, "There have been times that the physician himself doesn't even remember what he wrote. That renders the record useless and opens the door to trouble when others try to decipher what was written."

Indeed, sloppy handwriting can even have tragic consequences. Judge Levitz notes a case in which a doctor wrote a post-op prescription for Isordil but due to his illegible writing, the pharmacist read the name as Plendil. It turned out that the patient was severely allergic to the latter drug-and ended up dying. Even though the right drug was prescribed and the pharmacist filled the prescription correctly (at least as he read it), the doctor and the pharmacist were both were held liable for what happened.

Says Judge Levitz, "A simple phone call could have taken care of the problem for the pharmacist, but it is the prescribing doctor's responsibility to make sure his writing can be read."

Says Ms. Krohn, "You will probably encounter a good deal of resentment and little cooperation if you try to go after your staff-especially the docs-to work on their handwriting. So be equitable about it. Require legible case notes in your facility bylaws and set turn-around deadlines for filing them. Hammer it home in staff memos and meetings. And if the records can be typed up later on a PC, encourage people to do so, especially if they struggle with their handwriting."
  • Misspellings- This issue speaks to professionalism and medical credibility, according to Ms. Krohn. "You compromise your ability to convey your expertise if you misspell medical terminology. Likewise, stick to the facts about the case and don't make editorial comments that you would not want read in a court of law."

Experts suggest various ways you can monitor and improve your record keeping practices. Ms. Krohn suggests that facilities design standardized forms for keeping patient charts and surgical notes. "This speaks to organization and uniformity of record-keeping," she says. Also, use Post-It notes with caution. Some caregivers prefer to avoid them, saying that they could fall off, be misplaced, or end up sticking to the wrong chart. Others, such as Dr. Marco, view them as innocuous and even helpful. "The modern adhesives are good and the different color can make a certain bit of pertinent information stand out more clearly on the chart. It's also better than having to re-write information that was omitted, because the temptation is there to just leave out the information." Finally, make auditing your record keeping practices a major part of your facility's quality control program and encourage self-audits. "It may seem remedial to some, but staff development sessions, at least periodically, should include education and reminders about record keeping," says Dr. Marco.

Poor communication: Having strong lines of communication, both among the facility staff and surgeons and with the patient, is key for avoiding malpractice suits. Says Judge Levitz,"There is often an attitude among doctors that being a good doctor means being a good clinician. But you also have to know how to communicate with people."

The judge opines that the lack of interpersonal relationships between patients and staff is one of the key underlying factors in lawsuits. For evidence, he points to the fact that family practitioners are the least likely physicians to be sued (more than 90 percent of family practitioners go through their entire career without a single claim being filed against them). "People are much less likely to sue you if you aren't a stranger to them," says Judge Levitz. "The family doc has a relationship with the patient. Most busy surgeons do not, and the levels of interaction with the staff are often lacking. Patients feel like they are being shuttled in and shuttled out. So if something were to go wrong, the patient would have much greater inclination to sue."

According to the judge, the following some common sense tips to developing a "customer oriented approach" can save the facility immeasurably down the line if something were to go wrong clinically.
  1. Make sure that the patient clearly understands the procedure and the risks. Speak in layman's terms.
  2. Be encouraging and responsive to answering pre-operative questions.
  3. Even if you are not required to do so, inform the patient after the procedure of adverse events and assure them that the problem was handled properly. Timely communication can avoid later appearances of impropriety.
  4. If a mistake occured, admit it. You needn't assign blame but don't deny or try to cover over the obvious.

In short, concludes the judge, "old fashioned bedside manner and common courtesy still go a long way in keeping cases out of the legal system."

How to proceed if you are sued
If you are sued, here are the immediate steps to take:
  1. Inform your insurance company immediately, as they will be the ones handling the claim.
  2. Consult with your risk manager and assign a facility spokesperson for the case- a manager, a supervisor, etc. Instruct this person on what to say if asked about the case. The spokesperson should be the only person on staff who discusses the case, except within the confines of an attorney's office. That is because these communications are not protected under the law.
  3. If your facility is a large hospital, you may already have a malpractice lawyer on retainer. If you need to find counsel to advise you on how to proceed, make sure that he or she specializes in malpractice. The attorney should have experience in reviewing records to show that standards of care were met and have access to expert witnesses who have testified in malpractice cases.

Never underestimate the plaintiff. Says Judge Levitz, "Most lawyers who take malpractice cases are specialists in the field. In some cases, they were medical professionals themselves. I know of a number of firms that retain former physicians or nurse practitioners who have gone on to law school and work full time now in the legal profession, working on medicine-related cases. Therefore, you can expect the records to be reviewed on a professional-not a layperson's-level."

Finally, says Ms. Krohn, you should make sure that your facility bylaws contain language about the protocol if a claim were to be filed against a physician or staffer at your facility. This should include language about the circumstances under which temporary suspension of OR privileges would be enacted.

The Basics of Malpractice Insurance

Anatomy of a lawsuit
Perhaps the most important thing to remember if you are sued is not to panic. Remember that the burden of proof is on the plaintiff and the odds are stacked in your favor that the plaintiffs cannot satisfactorily prove all of the necessary areas to win the case.

If a lawsuit were to arise against your facility, it would be the responsibility of the plaintiff to prove the following: Duty, breach, causation, and damages.

Says Judge Levitz, "Duty is easy to prove. The doctor and nurse and support staff have a duty to provide care to the patient and follow accepted standards of care. The other areas are increasingly difficult to show. Breach is the failure to adhere to standards of care. Basically, standards of care are those practices that are spelled out by national medical organizations, credentialing agencies such as JCAHO, facility policies, and finally, by government regulations and court decisions. Examples of breach of standards of care would be to fail to note a change in vital signs or if a nurse didn't monitor intake."

"The most difficult areas to prove are causation and damages," says Judge Levitz. "Even if you breached the accepted standard of care, the plaintiff must show that the breach was the cause of the injury or damages that are being claimed. This is where the integrity of your medical records will make you or break you. Remember, in a civil case, reasonable doubt is not an issue. It comes down to whether the jury believes that your facility has its act together or not."

Finally, there are the damages themselves and the issue of deciding if the plaintiff is due compensation. The plaintiff's attorneys can argue for three different types of damages. The first are compensatory damages, which will cover economic losses as a result of the injury, such as lost wages or future medical bills. They can try to collect for emotional distress caused by an injury. And in cases of grievous error, they can try for punitive damages, which basically exist to punish a reckless defendant and deter others. That is where the huge awards you read about occur-in punitive cases. When it comes to deciding the area of damages, juries are very unpredictable. It hinges on how credible they find your facility."