Eight Best Practices for Medical Malpractice Defense

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The best way to prevent a malpractice lawsuit is to prepare for the likelihood of being sued, experts say. The more prepared a physician is, the better the chances of a successful outcome. Although no physician can manage all the possible risks that lead to malpractice lawsuits, we asked experts to share their best practices and tips.

1. Acquire good malpractice insurance.

The least expensive insurance is not always best, said attorney Christopher J. Ryan, counsel and cochair of the health care litigation task force at Dickinson Wright in Ann Arbor, Michigan. Clinicians should look for insurance that comes with risk management tools that can add value to a practice. Physicians also should make sure they have a policy in place with an admitted carrier in their state, according to Tom Benvenuto, a senior trial attorney with Benvenuto & Slattery in Roslyn, New York.

2. Ensure a good patient-doctor alliance.

Benvenuto explained that “bedside manner” really does make a difference to patient experience. Added Ryan, “I’ve seen situations where people chose not to pursue litigation because they liked the physician, whereas people will pursue litigation because they did not like the physician.” This is especially true when there are complications.

“Physicians who have been super responsive get sued less frequently than physicians who aren’t as responsive,” advised Peter Kolbert, senior vice president for claims and litigation management for Healthcare Risk Advisors, a strategic business of The Doctors Company in New York, New York. He added, “What drives people away from the clinician’s office and to the lawyer’s office is a lack of feeling connected to the doctor.”

3. Avoid communication problems.

“Bad communication is a common reason for a lawsuit,” Benvenuto said. “Or if you’re very critical when a patient has done their own research. You have to answer questions. You can’t be in a hurry.” Kolbert believes the communication problem can be solved simply by using closed loop communication, a practice used in fast-food establishments.

“When you order Chinese food, you place your order and the person says, ‘OK, you’ve ordered General Tso’s chicken and fried rice’ to ensure that they heard what you said, so there’s not a dispute. How often does the clinician, when speaking with a patient, ask, ‘Can you tell me what the next steps are so that I can be sure you heard me?’”

4. Pay attention to the nuances of informed consent.

Most physicians understand informed consent pretty well, Kolbert said. However, a problem can occur when a physician makes assumptions about common complications or adverse effects of a treatment and fails to alert the patient. “Informed consent is a recognition of the limitations of medicine,” Kolbert said. “It’s a recommendation that we can’t give a guarantee; therefore, it’s about shared decision-making.”

5. Document everything.

Becoming better listeners can prevent another common problem in malpractice lawsuits—poor documentation in the electronic health record. “As a lawyer, there are very few times when I’ve seen perfect documentation, a record that has everything in it that I would hope to see,” Ryan said. “It’s such a big issue, we’ve given entire presentations on medical record documentation.” In addition to traditional notes, Kolbert said that physicians should always chart issues of patient nonadherence.

6. Take care after a lawsuit is filed.

Physicians will need to think clearly, Kolbert said. “When physicians get sued, it’s a new universe and they don’t fully understand it,” he said. Often the cases that end up getting filed are not necessarily the ones physicians would expect, so they may take a physician by surprise, Ryan said.

Benvenuto said it’s normal for a physician to want to go back in and change a note in the patient’s records, but it’s a very bad idea. “Resist the urge to add anything to the note. I don’t even mean falsifying it, but just adding information that you didn’t put in the first place. Those always get you bitten.”

7. Get a lawyer immediately.

The first thing to do is call your insurance carrier and insist on speaking to a lawyer immediately, while everything is still fresh, Benvenuto advised. The worst thing a physician can do is to try to ignore it or put it off. Similarly, the more quickly a physician meets with a lawyer, the better. “If you find an attorney who won’t take your call, get another attorney,” Benvenuto said.

8. Prepare for deposition or pretrial statement.

The next most important step after a lawsuit has been filed is to prepare thoroughly for the deposition or pretrial statement, Kolbert said.

There is good news, however. Although malpractice suits may hang like a dark specter in the back of a physician’s mind, Kolbert said on average the number of claims is smaller than the number of adverse outcomes, which are a fraction of 1% of patient encounters. “Most of the time physicians are doing a good job, but there’s always room for improvement,” he said.