Sep-Oct 2008 Table of Contents

Opinion

Patient History and Malpractice Defense

Good records can help defend against a meritless malpractice suit, but it takes more than good records to prevent one.

Fam Pract Manag. 2008 Sep-Oct;15(8):11-13.

In April 2007, I received a letter from a patient whose account had been sent to collections. It began, “From approximately August 2004 through December 2005, I was seeking medical care from Dr. Iliff with a variety of health concerns. One of the concerns I expressed was sore, aching legs. This was preventing me from walking any distance and causing pain in my hips. Dr. Iliff recommended that I raise the head of my bed and put it on bricks.”

This 43-year-old woman went on to explain that subsequent to an emergency appendectomy she was found to have an aortic obstruction blocking the right renal artery and partially blocking the left, leaving her with some degree of renal insufficiency. From her description, it appeared that she had also needed an iliac artery bypass to restore circulation to her legs. Two major surgeries had deprived her of employment and health insurance. She concluded by writing that she would not be paying the balance of my bill and would seek the advice of an attorney should I wish to pursue the matter.

Given that bed blocks are not an effective treatment for claudication, I retrieved her records from long-term storage with curiosity and some trepidation. You know the feeling.

Relationship

When it comes to staying away from a court docket, the mantra for physicians should be “relationship, relationship, relationship.” Part of relationship is that mysterious factor known as “bedside manner,” which consists primarily of appearing to listen and care. I don't know if mere appearance is enough; that is, I don't know if the listening and caring have to be attentive and genuine. I suspect they do.

One of the best physicians I knew, a woman of great charm and intelligence, frequently seemed to have a new malpractice story to tell. We all knew why. She had a quick wit, and quickly became defensive and confrontational. It was, in a way, what made her so entertaining. But that bedside manner – hoo, boy!

Personality quirks can prevent our making friends of our patients. How many times in my career, out of the 20,000 or so discrete decisions I make every year, have I committed an actionable blunder? Patients who are friends have always forgiven them. But the woman in my example had only been a patient for a year and a half. Until I get to know someone well, I might as well be a consultant.

Records

Years ago, I began reviewing charts for attorneys. I have written opinions for around 30 cases over the past 15 years and have come to enjoy depositions as a hobby, with the challenges of probing questions and the ever-present risk of a fatal tongue-slip. This experience has taught me that all the emphasis the malpractice-prevention seminars put on medical records, especially electronic medical records, is overblown. Good records are important, but not everything. Remember that the old family GP kept his records on note cards in a file box and never got sued. And even the best visit notes detailing the best care won't protect you against all malpractice suits.

The problem is that records almost always have to be interpreted. That's why your patient's attorney will want to talk to you, under oath. You can have a two-page, single-spaced record of a two-minute consultation, like a surgeon I know, but the attorney knows what a macro is and will still go over every detail like he thinks you made it up. If your appointment log does not reveal enough time for a two-page experience, the macro is your enemy. And macros lack the sincerity of a handwritten note.

More than that, think about the letter from my patient. Her remembrance is that she complained of claudication, which should have led to a workup for peripheral vascular disease, even at an unusually young age. Let's suppose she never mentioned any such thing. What is my defense? Would there be any pertinent negatives in my office records? No. She could claim we discussed such a complaint, and it would be her vivid memory – doubtless highlighted by tears – against my vacant history. Whom would a jury believe?

But suppose, as is in fact the case, that the top of my office encounter form includes the following: “Please list the problems you wish to discuss today with Dr. Iliff. Include any details you think are important.” This is followed by four blank lines for the patient to respond. In fact, the forms she filled out for her five office visits revealed no mention of leg pain. Furthermore, at her comprehensive physical, out of 134 questions on the self-administered history (43 of which were checked!), the only relevant item was “nocturnal leg cramps.”

She had no case, but I still forgave her debt. That's our written policy whenever a patient falls on hard times. She didn't have to threaten. All she had to do was ask, and it would have saved me the cost of registered mail.

Lessons

Here are the pearls in all this:

  1. Applicants to dental school are screened for personality problems in the admissions interview. Medical students aren't. If you're experiencing more than one lawsuit per decade, the answer may not be another malpractice-prevention seminar; it won't tell you what kind of personality you have. Consider getting help from a personality consultant or cross-training in pathology.

  2. Make the patient write out his or her complaint at every visit. It's the only defense against “recovered memory” problems, and it's a good one.

  3. A periodic physical with a thorough history, preferably completed by the patient, is good practice and makes good sense. I lean hard on my patients about this, and they can't accuse me of being unreasonable: I only ask for one every five years up to age 50, and every two years thereafter. But we make it a big deal. It involves about 45 minutes with my nurse, and another 45 minutes with me when the tests are all back. You won't miss much with that regimen.

About the Author

Dr. Iliff is a solo family physician practicing in Topeka, Kan., and a member of the FPM Board of Editors.

Author disclosure: nothing to disclose.

Send comments to fpmedit@aafp.org.

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