8 ways to elude a malpractice lawsuit

So you want not to be decimated by a malpractice lawsuit? I understand that, and I agree. Here are eight ways to elude that destiny.

Way number 1. Don’t do malpractice.

Way number 2. Care deeply about your patients; and let them know by your actions that you really do care.

Way number 3. Communicate diligently with your patients so that you and they are on the same page and understand together what is going on. Share with them the benefits, costs, and risks of the various diagnostic and therapeutic procedures that you wish to use, and decide together to go forward.

Way number 4. If a medical mistake or error does happen and the patient is harmed, tell the patient and apologize if appropriate. Along with your institution, offer a settlement for damages, and tell the patient that you and the organization have learned from the error and have instituted corrective actions to prevent it from happening again.

Way number 5. Recognize that the majority of actual errors that do harm patients never come to lawsuit.

Way number 6. Recognize that the majority of unhappy patient encounters with or without harm that do come to lawsuit are without actual merit.

Way number 7. Recognize that the majority of lawsuits threatened are withdrawn or settled, often unrelated to merit.

Way number 8. Work to achieve a system of binding arbitration in your state.

At the end of the day, recognize that the American system of dealing with medical professional liability, so called malpractice, sucks, and that stuff (so to speak) happens.

But they will not vanish, so arm yourself with ways number 1 through 8, and be positive.

Many times the good guys actually do win.

George Lundberg is a MedPage Today Editor-at-Large and former editor of the Journal of the American Medical Association.

Originally published in MedPage Today. Visit MedPageToday.com for more health policy news.

Comments

49er MD
10. If a patient is hostile and untrusting, and you can’t seem to win them over, prevent a med mal suit by politely terminating your relationship with them.
11. If a nice patient brings an overly aggressive family member that just gives you the evil eye through the whole visit, politely terminate your relationship with the patient.
Dr.Z
How many of those “Ways” … admitting mistakes proactively will result in your being dropped by your malpractice insurance provider?
Matt
I don’t think binding arbitration will solve most of the things physicians hate about civil trials. They seem to dislike being accused, being examined under oath, etc. Arbitration has all those features.
Not to mention you have the Constitution issue – physicians don’t seem to have much use for the Constitution these days. Although, to be fair, most people don’t when it gets in the way of their personal goals.
http://www.epmonthly.com/whitecoat WhiteCoat
That title sure sucks the reader right in.
Disagree with a majority of this post, though.
“Way” #1 is like telling people to avoid traffic accidents by not getting into crashes. Good advice. Worthless, but good.
“Way” #2 is true and right on point.
“Way” #3 would be great … if risks were always quantifiable, if hospitals were willing to disclose the costs of procedures, and if there wasn’t such an emphasis on seeing more patients in order to keep practices solvent.
“Way” #4 – agree with Dr. Z. You better have the blessing of your malpractice insurer. Who’s going to pay the damages? If another entity pays damages on a physician’s behalf, it may trigger a report to the National Practitioner Databank. So while nice in theory, the “early settlement” idea flops in practicality.
“Ways” 5, 6, and 7 have nothing to do with eluding a malpractice suit.
“Way” #8 makes it clear that Dr. Lundberg hasn’t had much experience with binding arbitration.
anonymous
But… empiric studies on this issue have demonstrated that a good relationship and good communication with patients, both before and after an adverse event, *do* reduce the physician’s risk of getting sued.
I can appreciate that there’s a lot of emotion bound up in this, but at some point we have to start looking at the facts.

Dr.Z
How about you cite 2 of them … published ‘studies’ paid for by an entity other than the Trial Lawyers Association.

anonymous
All righty:
http://www.ncbi.nlm.nih.gov/pubmed/20829723
http://www.ncbi.nlm.nih.gov/pubmed/20713789
http://www.ncbi.nlm.nih.gov/pubmed/20709703
http://www.ncbi.nlm.nih.gov/pubmed/19901141
http://www.ncbi.nlm.nih.gov/pubmed/19859095
http://www.ncbi.nlm.nih.gov/pubmed/19683408
http://www.webmm.ahrq.gov/perspective.aspx?perspectiveID=18
I could find more if you’d like.
http://www.ncbi.nlm.nih.gov/pubmed/20505403
http://www.ncbi.nlm.nih.gov/pubmed/20162996
http://www.ncbi.nlm.nih.gov/pubmed/20139148
http://www.ncbi.nlm.nih.gov/pubmed/20054963

jsmith
Way 9. Avoid high risk things, like (life-saving) emergency surgery for head injury pts, or delivering babies.
Let’s face it: The objective risk of neurosurgery or OB exists, and no deep caring in the world will eliminate that risk.
Matt
““Way” #1 is like telling people to avoid traffic accidents by not getting into crashes. Good advice. Worthless, but good.”
Yes, there is no benefit whatsoever in examining how you practice and seeing if you can improve it to avoid malpractice. Good call.
“So while nice in theory, the “early settlement” idea flops in practicality.”
This statement is also false, and has been tried successfully in some places, although usually on an institutional basis. The University of Michigan system has had success. This assumes that you’ll admit to malpractice, however, a tough admission for anyone.
““Way” #3 would be great … if risks were always quantifiable, if hospitals were willing to disclose the costs of procedures, and if there wasn’t such an emphasis on seeing more patients in order to keep practices solvent.”
Those are all excuses for doing nothing. However, as the anonymous commenter correctly notes, the one surefire method after reducing one’s malpractice, for reducing claims is patient communication, according to multiple studies.
The WhiteCoat way of trying to do it via legislation which only further hampers those already injured may scratch one’s revenge bone if you’re angry at lawyers, but it doesn’t do much for healthcare or the injured patient (yes, Virginia, they do exist).

Dr.Z
@matty…
Get a clue.
“This statement is also false, and has been tried successfully in some places, although usually on an institutional basis. The University of Michigan system has had success. This assumes that you’ll admit to malpractice, however, a tough admission for anyone”.
You’re a lawyer or worse an academic with no skin in the game. Whitecoat’s points are comments on why the happy happy glad list is more pipe dream than reality. If you want to call them excuses … then you go work acceptable torte reform or we’ll find other ways to reduce risk by moving … walking away from higher risk services and patients … or shrinking the practice panel.
You might not like it … but ball is in your court matty to fix the system instead of bullying and villifying those who have skin in the game.

Matt
“then you go work acceptable torte reform or we’ll find other ways to reduce risk by moving … walking away from higher risk services and patients … or shrinking the practice panel.”
There is no “acceptable tort reform”, because neither physicians nor lawyers drive this train. Your liability carriers do. Their only goals are to pay less regardless of the merit of the claim. That’s not acceptable, and shouldn’t be even to physicians.
“You might not like it … but ball is in your court matty to fix the system”
There is nothing wrong with the system. Physicians don’t like being questioned about their work. Nothing in the world will change that. No matter what system you create.

J.T. Wenting
“Yes, there is no benefit whatsoever in examining how you practice and seeing if you can improve it to avoid malpractice. Good call.”
The majority of malpractice suits are frivolous if not downright fraudulent.
And juries couldn’t care less, they only see the dollar signs and think about the settlements they themselves could get if they filed similar lawsuits in the future.
So just avoiding being a bad doctor doesn’t work to prevent the majority of lawsuits.
Of the rest, a good portion are because of accidents or things otherwise outside the control of the doctor (see above as to why that’s irrelevant as to the jury verdict).
Again, being a good doctor doesn’t matter one iota.
In fact, good doctors tend to be doctors with money (they have successful practices with patients that can afford to pay premium for quality care), and are thus more lucrative targets for lawsuits.
The only real way to prevent becoming a target is to never take any cases whatsoever, stop practicing medicine and become a lawyer or “medical expert” bringing malpractice lawsuits yourself against your (now former) colleagues.

Matt
“And juries couldn’t care less, they only see the dollar signs and think about the settlements they themselves could get if they filed similar lawsuits in the future.”
If this is true, how come physicians win far more often than they lose in front of juries? Why do you believe you’re so smart and everyone on a jury is so dumb?
“In fact, good doctors tend to be doctors with money (they have successful practices with patients that can afford to pay premium for quality care), and are thus more lucrative targets for lawsuits.”
You’ve illustrated how little you know with this comment. The vast, vast majority of malpractice claims settle at or within policy limits. The individual wealth of a physician is rarely a factor, absent punitive damages.
You’ve evidently heard a lot of stories, but haven’t checked out the facts.

J.T. Wenting
“You’ve illustrated how little you know with this comment. The vast, vast majority of malpractice claims settle at or within policy limits. The individual wealth of a physician is rarely a factor, absent punitive damages.”
Indeed, and wealthier physicians can afford more elaborate insurance, costing more and paying out larger settlements.

Matt
Scratch one’s revenge ITCH, I meant.
http://skepticalscalpel.blogspot.com/ Skeptical Scalpel
Way #1 and Way #5 illustrate the fallacy of this post. I have known of gross malpractice which goes unpunished by a lawsuit or even a so-called “quality improvement” investigation and I known of numerous malpractice suits based solely upon unpreventable bad outcomes.
http://www.twitter.com/alicearobertson Alice
I know 49er was serious.. but the response was humorous. The bottomline is people do not sue doctors they love…so lay a little lovin’ on those patients….and make sure they don’t see your own stink eye.
imdoc
So, Matt what is your solution to this problem? There are areas of the country in which certain high-risk specialties (such as neurosurgery, ob-gyn) have simply vanished and there is inadequate access for patients. Make no mistake that lack of such specialties results in patient harm and death. A responsible solution balances the rights of individuals against the needs of society. You can implore physicians to “be nicer”, publicly confess all their clinical missteps, pay early and often, etc. Doctors are voting with their feet by avoiding high-risk specialties and high-risk cases. When I am a patient with a severe illness, I would like there to be available doctors with skills. If you think what I describe does not exist, talk to your attorney colleagues who are also practicing physicians – there are a few. Oh, and if you believe the problem is malpractice carriers, you need to explain why rates in states that have tort reform are significantly lower than others.
Matt
“There are areas of the country in which certain high-risk specialties (such as neurosurgery, ob-gyn) have simply vanished and there is inadequate access for patients.”
Where? What is “adequate access” and where don’t they have it? You make this claim as if everyone, no matter where they are and what they can afford to pay is entitled to a neurosurgeon around the corner. Sounds like you’re making the case for universal healthcare and physicians to be treated like soldiers, to be deployed when and where they’re told.
You can pass all the “reform” you want and people in poor rural areas will still have far fewer physicians than those in wealth areas. The driver of access to physicians, if you look at per capita distribution, is the wealth of the communities – not the liability laws. That’s hard data, not anecdotes.
” Oh, and if you believe the problem is malpractice carriers, you need to explain why rates in states that have tort reform are significantly lower than others.”
It’s not, so why would I have to explain that? Rates rise and fall with the investment climate. That’s how insurance works. Check out any Berkshire Hathaway annual report – Buffett explains the business quite clearly for us laymen. And he owns a med mal insurer.
imdoc
There is definitely a difference in rates between Illinois and Texas. Tort reform is largely why Texas is getting such an influx of specialists. Also, do a search for neurosurgeons south of Springfield Illinois (the lower half of the state) I think you will find not much geographic availability. It does matter because there are emergencies requiring urgent neurosurgical intervention, so I think proximity to care is material to patients in some cases.

Matt
“There is definitely a difference in rates between Illinois and Texas.”
Let’s see the proof!
“Tort reform is largely why Texas is getting such an influx of specialists.”
Again, let’s see the proof! Where are these specialists going? Dallas? Houston? Abilene? Borger? Texas’ per capita physician rate is about the same as it has always been.
“Also, do a search for neurosurgeons south of Springfield Illinois (the lower half of the state) I think you will find not much geographic availability.”
Maybe so – how many should there be? How many will you promise us if we give you whatever reform you want? We both know the answer to that is none?
Also, given that St. Louis, Missouri is pretty close to much of Southern Illinois, don’t you think those should be counted?
“t does matter because there are emergencies requiring urgent neurosurgical intervention, so I think proximity to care is material to patients in some cases.”
Undoubtedly – should we all expect a neurosurgeon within 20 miles of our home as a result?

imdoc
I will reference the Perryman Group report, an economic reporting agency. See the article entitled “A Texas Turnaround…” It details neurosurgery premiums falling nearly in half between 2003 and 2007 and an uptick in patient access. (Tort reform was in 2004) I will also reference that southern Illinois was the site of former Pres Bush’s address regarding the medical liability crisis. Also search for data on the number of license applications in Texas – there is a surge right after tort reform. Now, having supported my statements, I don’t know if tort reform is the answer, but I do believe there is a problem. Regarding the statement about insurance rates as simply a function of investment returns, explain the regional differences in other lines such as auto or property insurance (if not due to claims experience).
matt
” “A Texas Turnaround…” It details neurosurgery premiums falling nearly in half between 2003 and 2007 and an uptick in patient access.”
Premiums fell across the country during that period. That doesn’t make the case for tort reform. Nor does an “uptick” in patient access to neurosurgeons if we don’t know where these neurosurgeons came from. Did they come from California, which already had tort reform?
“Also search for data on the number of license applications in Texas – there is a surge right after tort reform”
You’ll also find a major increase in the population of Texas immediately preceding that as well. More people=more physicians. Why would you attribute this to tort reform? Again, especially since you have no idea where these people are coming from – is it other states with damage caps?
Telling me where a politician goes to make the case for something doesn’t mean much. If Obama goes to your town to make the case that physicians are paid too much, does that mean it’s true we need to cut your salary?
“Regarding the statement about insurance rates as simply a function of investment returns, explain the regional differences in other lines such as auto or property insurance (if not due to claims experience).”
Again, that’s not my statement, that’s Warren Buffett’s, whose fortune is largely made on insurance. I would encourage you to read any of the letters to shareholders at Berkshire’s site – and not just for this issue, but for very readable and intelligent thoughts on business in general. Especially the insurance business.
imdoc
“Premiums fell across the country during that period.” Uh…really? I paid premiums (to a physician owned mutual company) during those years and mine didn’t go down. I don’t recall my other lines of insurance dropping either.
“Rates rise and fall with the investment climate. That’s how insurance works.”
Now we are getting somewhere – we can inform the pundits in Washington that health insurance has nothing at all to do with claims and is strictly a function of investment returns. Wait awhile for better financial climate and the problem will evaporate!

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