One of the most paralyzing fears that any clinician can face is the possibility of being in the middle of a malpractice lawsuit. In order to avoid this unpleasant scenario, this author emphasizes thorough documentation, sound patient confidentiality practices and important subtleties of communicating with one’s patients.

There are many unrecognized pitfalls hiding in the daily practice of medicine that could trigger a malpractice lawsuit. No one can predict which case will come back to haunt a clinician. You may find it is not the case in which you think you missed something or when there was a patient misunderstanding. More than likely, it will be the incident that did not raise any red flags at all at that time.

The shock of being named in a medical malpractice lawsuit and the stress of going through the entire process, from discovery to deposition to preparation for the trial and conclusion on the case, can change your views on medicine and the way you practice in the future, assuming you choose to continue practicing medicine at all.

When one is named in a medical malpractice lawsuit, the first reaction is that of denial and/or surprise. Our reaction to an allegation of medical malpractice is just like the response one might hear from patients who have just been diagnosed with a life changing medical problem. Many of us even say the same things that our patients might say. “I cannot believe this is happening to me.” You do not want to believe it. Many may think, “My career is over,” “I’ve been careful,” or “I know I did not do anything wrong.”

Perhaps you have been careful. Perhaps you did not do anything wrong. Regardless, you would still have to defend yourself against those allegations of medical malpractice. One is never too young or too old to face a malpractice allegation. These allegations can come at any time during your career.

Once one is entangled in a malpractice lawsuit, you are looking at a prolonged roller coaster ride. The time between first notification and verdict may last up to 55 months. Some cases have lasted more than 10 years. Throughout the proceedings, the clinician may have a higher degree of self-doubt and constantly be asking him- or herself two questions over and over: “Did I cause the problem?” and “Am I going to win or lose this case?”

How can you prevent the nightmare of a malpractice lawsuit? Fortunately, there are many simple steps and risk management strategies clinicians can incorporate into their practice to help minimize the threat of a malpractice charge. The key is to make these tactics part of your everyday standard operating procedures so they become second nature. Incorporating risk management strategies into your practice pays dividends.
Not only will these risk management strategies help reduce medical liability exposure, they will facilitate increased efficiency and organization, and ultimately aid in providing better care to your patients.

Never Underestimate The Value Of Thorough Documentation
Five years from now, if someone reads your records or notes for a patient you treated today, will he or she get an accurate picture of the care you provided for this patient or will the missing elements in the record speak louder than you have noted? In fact, the person who reviews your record or notes will be looking for what is missing, especially if he or she is working for the plaintiff.

The medical record has been called the “the witness whose memory never fades.”
The medical record serves a number of key purposes. It serves as a record of your diagnosis and treatment of the patient. It serves as a record to other healthcare professionals, describing your diagnosis and treatment of the patient. It is a legal record.

It is important to keep in mind that malpractice lawsuits can be indefensible if there are significant problems with medical records.

Avoid Altering Medical Records
As many who practice medicine should know, one should never alter medical records. However, the temptation is there at times. There is a very good rule to remember when making corrections in writing on a medical chart. Use the mnemonic called SLIDE:

SL – Single line through the mistake.
I – Initial the entry as an error
D – Date the entry
E – Note “error” in the area

While it is natural to wish the records had been more complete or detailed than they are, resist the urge to change or delete any entry in the record after the fact. Doing so will virtually guarantee that your case will be rendered questionable. An item in the record, which the defendant clinician may feel is certain to doom the case, may in reality be explainable at deposition or trial.

If you think your alterations in the record will not be detected, think again. Finding alterations in the medical record is similar to uncovering DNA at a crime scene. Today, with the large sums of money that are being rewarded in malpractice claims, the plaintiff’s attorney will hire a “document sleuth” to review the record.

They use infrared and ultraviolet microscope techniques to look for compositions of the age of the ink, the slant of the script and/or depressions made in the paper by the writing instrument. They will look at all of these things to see if entries were made at different times and so forth.

Keeping Patients Happy: Key Points To Remember

Pay Attention To Professionalism And Patient Confidentiality
Professionalism and documentation go hand in hand. For example, one physician wrote the following in a hospital medical record: “If the nurses around this hospital would read the medication orders, we would not have medical emergencies like this one.”

Responding to that criticism, a nurse also wrote in the hospital medical record: “If the physicians around this hospital would learn to write so we could read it, there would not be medication errors like this one.”

Whether you are in a clinical or non-clinical area, the nature of your work is such that from time to time you may have access to private, sensitive and personal information your patients and co-workers expect you to keep confidential. Professionalism is one of the pillars upon which your success is based and one of the key elements of professionalism is discretion.

Discretion is having and using sound judgment in one’s speech and behavior while being respectful of the wishes and requests of your patients.

Strive For Better Organization Of Patient Charts
Lawrence Weed, MD created a medical record mnemonic, Subjective Objective Assessment Plan (SOAP), in the 1950s and it is still regarded as a valuable tool. Clinicians have used the SOAP mnemonic for many years to diagnose, treat and document patient’s aliments. Recently, the SOAP mnemonic has been extended to SOAPER. It now stands for …

S: Subjective
O: Objective
A: Assessment
P: Plan
E: Educated — indicates that the patient has been “educated” on self-management for his or her condition.
R: Response — indicates the “response” the patient gives when he or she understands the instructions given by the healthcare provider.

There are some basic guidelines for strengthening your medical records, such as establishing a consistent method of charting and organizing the records.

Note all conversations with patients, including phone calls. Failure to record and document the substance of a phone conversation with or about patients is universally recognized by risk management experts as an especially vulnerable area of medical liability. Courts can and do choose to ignore verbal testimony not supported by the written medical record.

It is best to always initial and date any document you review. All diagnostic studies and records from other physicians and facilities should be initialed and dated before they are filed in the chart.

When obtaining a patient history and performing a physical examination, clinicians should address all systems and the documentation should reflect that review.

When you write in the chart, write a full note. For example, do not just write “medication refill.” Note what medications were refilled, the quantity of those refills and the directions for taking the medications. Also, it is not enough to write the drug name and “refill.” Write out everything as in this example: Xanax 1 mg # 60 take one tablet P.O. Q 12 H or BID with one refill. Also limit the use of abbreviations.

What You Should Know About Dictation
Dictating is perhaps one of the easiest and best ways to document. It eliminates the hassle of writing messages on slips of paper and it encourages more of a complete entry. It also makes documentation of phone conversations less burdensome and reduces the risk that an important communication was overlooked.

Also bear in mind that dictating will produce 175 words on the average patient encounter whereas there may only be 87 written words for the same encounter.

While dictation is important, it is just as important to make sure that entries are legible and easy to read. Some courts will consider it undocumented if the issue of legibility comes into play.

Why Communication Is Essential In Interactions With Patients
Although you will not find “poor communications” listed anywhere as an official cause of a malpractice claim, it underlies almost every malpractice action. Insurance claims administrators and malpractice defense attorneys estimate that communications failures are a contributing factor in 80 percent of all professional claims and lawsuits. Good communication between yourself and your patient can prevent a lawsuit even if you make a serious mistake.

Experts in the field of interpersonal communications have established that much of the emotional content of a message comes through body language. When patients speak, let them know that you are interested in what they have to say. You can do this by making periodic eye contact and maintaining an active body state.
If the patient knows that you are interested, he or she will work harder to communicate his or her problems to you. You should also learn to listen objectively, not subjectively.

Taking the time with patients can mean a world of difference. Clinicians who spend only 15 minutes with a patient are more likely to be sued than those who spend an average of 18 minutes with each patient.
Also, clinicians should use more humor and laugh with their patients. This helps make patients more relaxed and it helps you to interact with them. This also helps clinicians to be more careful to explain to patients what exam they are going to do before they do it, making patients more comfortable. This also helps when conducting more sensitive checkups such as abdominal exams, vaginal exams or even looking into childrens’ ears.

The provider who encourages patients to talk more is a provider who has patients who are more prone to do what is asked of them and are more compliant.

In Conclusion
Indeed, proactive steps in communication and documentation can be the difference in preventing malpractice lawsuits. While “location, location, location” is often a key point of emphasis in real estate, a mantra in healthcare may be “communication, documentation, communication, documentation.”