Almost ten years ago, there was a knock at the door. My children and I were playing games as it was only a few days after Christmas. All of us answered the door, and there stood a sheriff with papers. He said those dreaded words, “you are served.” As I closed the door, I tried to hold back my tears and get my kids situated in front of the TV. I escaped to my bedroom and sobbed. I was getting sued for medical malpractice. This was devastating, and it rocked me to my core. How could this happen? I had given my whole life to medicine at the sacrifice of so many things including time with my kids and family. And all I could think was, this wasn’t worth it. I was angry at first. Then the fear of the unknown set in, and then the shame. This myriad of emotions is litigation stress, and it is real. 95 percent of physicians will go through this, and it doesn’t go away as many of these cases linger on.
The worry and anticipation of getting sued are heightened more than ever in the wake of the pandemic. It is in all physicians’ minds. I recently did a quick poll in some of my physician groups on social media, and roughly 500 physicians responded to this question: Do we need medical malpractice reform? I only had one say no, and one said it would depend. Every other physician said yes. Now, this is a small group, but I believe asking this on a larger scale would get similar results – the majority would want this. We desperately need to change, but change takes time and debate. So, What can we do now in this pandemic to avoid litigation?
I have come up with five tips, and I use the word AVOID to remember them.
A stands for attitude and avoid reacting. This is by far the biggest issue – poor communication and poor bedside manner. This has to do with the perception of your patient. If a patient perceives you as distracted, always looking at your computer, and in a hurry, they are more likely to be disgruntled with their care and hence more likely to sue if things go wrong in any way. So being sure to look at patients, being present in the room with them, and extending compassion can go a long way, and this doesn’t mean having to spend any longer with them. It’s social cues like a handshake or a nod when talking with them. Ask yourself what you can do to do this better? Get a scribe? Or write your note in EMR after the conversation? Just observe what you are doing now and assess the one thing that you could do to improve.
You also want to avoid reacting and learn to respond. This is easier said than done. But most of us at times let our emotions dictate who we are being. If we are frustrated or angry, we show it and usually take it out on someone else in our path. Reactionary responses are things we say that later we wish we could take back. They are behaving in a way that makes us look unprofessional and an easy target to not like. The pandemic has led to overall exhaustion and burnout in medicine, leading us to be more reactionary. It’s important to learn the skill of pausing and then responding.
V stands for value the patients’ perspective. This means sitting in their shoes for a moment. Think about what they may be going through and feel what they may be feeling before you walk in to see them. Do not dismiss their feelings. You want to validate their feelings compassionately. Patients want to be heard. They want to know you care. Building this type of relationship can prevent lawsuits. If a complication, missed diagnosis, or an error has occurred, you don’t want to be on the defensive. Apologize where needed.
O stands for operating in systems for everything you do. Create a pathway to follow. This includes scheduling an appointment, a procedure or surgery, and handing out instructions for education. Consistency is key, and doing it the same way all the time is crucial. This allows for nothing to fall through the cracks. Some key questions to ask:
How does my front staff answer the phone?
How does my nurse room patients?
How will I contact patients for labs/results?
How do we follow up and create reminders?
When do instructions need to be handed out?
How do I counsel on informed consent?
These are just a few of the things to think about. Having systems in place consistently will reduce bad feelings from patients, especially those lost to follow-up or those who didn’t get the instructions and did not know what to do. This is important because if a patient perceives you are unorganized or messy, it doesn’t look good. Be sure to have systems and train your staff to always follow the system in the same way.
I stands for initiate self-care for you. We often forget this, but a happy and well-balanced doctor is less likely to get sued. When you have time to do the things that are important to you, you bring more joy to your work. When was the last time you did something just for yourself? And what is it that recharges you? Maybe it’s spending time with family, getting a massage, vacation, or taking a complete day off of work every week. Do this now.
D stands for documentation. We all know as physicians how important it is to document. Being clear, concise, and putting your differential on paper or EMR is crucial. Always document with consistency and be thorough. For example, the way a phone call is documented. If one nurse documents one way and another a different way, it’s messy. Have a template and follow a system or procedure that best fits your practice and flow. One of the worst things a physician can do is when served papers go back and comb through the chart and add things after the fact. And in fact, with EMR everything is timed, so it will be documented when you do this, and the best advice I could give you is not to go look at the chart when you get served. Wait until you have the records through your lawyers. Resist that temptation.
Even with following these tips, the statistics show that if you practice medicine until the age of 65, odds are you will be named in a lawsuit. You have a 99 percent chance if you are in a high-risk specialty like surgical specialties and a 75 percent chance in low-risk specialties like pediatrics and family practice. We also need to understand that this is normal. And I want to repeat this: It is normal to get sued for medical malpractice. And when and if this happens to you, following these guidelines can help you for a favorable outcome.
Laura Fortner is an obstetrician-gynecologist.
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