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ADDITIONAL INFORMATION Medical Liability Crisis Hits FPs Hard AAFP Chapters Tackle Coverage Emergency House Passes Liability Reform Bill FPs Share Info on Impact of Liability Insurance
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BY CINDY McCANSE BORGMEYER
WEB EXTRA!"Been there; done that." For many physicians these days, this is the sentiment they associate with medical malpractice litigation.
But John Davenport, M.D., J.D., has a unique perspective on the issue. Chair of the family medicine department and an attorney and risk manager at Kaiser Permanente Orange County in Irvine, Calif., he addressed the issue at length in an October 2000 Family Practice Management article, available at http://www.aafp.org/fpm/20001000/33docu.html. Much of what was true then still holds today, he notes.
The bad news, says Davenport, is that the typical family physician can expect to be sued about once every seven to 10 years.
For that very reason, says V. Franklin Colon, M.D., physicians shouldn't take being sued personally. Formerly a professor of family medicine at the University of Cincinnati College of Medicine and director of the Bethesda Hospital Family Practice Residency there, Colon began delving into the arcane no-man's-land where medicine meets the law after a yearlong stint in law school. He's presented numerous seminars on the topic and in 2001 co-wrote Medical Malpractice Risk Management with attorneys James Scheper, J.D., and Nicholas Bunch, J.D.,
"What I try to make physicians understand is that being sued for malpractice doesn't mean the person isn't a good physician," Colon says. "There are all kinds of reasons for suing a doctor, and a lot of them don't have anything to do with quality of care."
The good news, he says, is that only about 10 percent of potential malpractice claims are ever filed in court. And of cases that make it that far, 80 percent to 90 percent are either dismissed or are decided in the physician's favor.
So what can you do to protect yourself? Perhaps more than you think.
Not to be missedOf the failure-to-diagnose allegations that eventually wind up in court, chest pain leading to myocardial infarction is the chief offender: More malpractice award dollars stem from a missed heart attack than from any other diagnosis. Specific oversights include failing to review and compare previous electrocardiograms with a current tracing and neglecting to explicitly advise a patient with noncardiac chest pain when to return for re-evaluation. Breast cancer ranks a close second, with failure to recognize a suspicious lesion and neglecting to aggressively follow up on abnormal mammograms being frequently cited as delaying appropriate diagnosis and causing injury to the patient. For the remaining "most often missed" diagnoses -- appendicitis and lung and colon cancers -- the primary complaints again center on misreading the significance of signs and symptoms present and dropping the ball on proper follow-up. |
Know the relative risks
For FPs, the greatest liability risk arises from errors of omission, rather than of commission. According to Davenport, missed diagnoses of myocardial infarction; appendicitis; and breast, lung and colon cancers top the list (see sidebar for more details).
To remedy these shortcomings, Davenport suggests consulting with staff to institute fail-safe measures to guarantee that:
See "Utilize technology for record keeping" in this issue to read how Davenport uses a computerized system in his practice to track test results, monitor patient care and perform other tasks.
Document, document, document
Always a key element of practice, complete and careful record keeping becomes even more critical when one of the five conditions listed above is part of the differential diagnosis, Davenport notes. Each aspect of the medical encounter -- personal and family histories; physical exam findings; imaging and lab test results; and discussions with patients, including specific advice given -- should go in the patient record. When the diagnosis is unclear, it behooves the physician to document his or her thought processes, as well as the follow-up plan.
All chart information should be legible and clearly dated, says Davenport. Avoid sounding defensive in chart notes, and keep the editorial comments to yourself. Few things rankle jurors so much as a doctor who makes pejorative remarks about patients, he advises, so stick to the facts when recording the interview.
Keep communication flowing
Davenport cites a study published in the Journal of the American Medical Association that identified specific communication behaviors associated with fewer malpractice claims against primary care physicians (go to http://jama.ama-assn.org/cgi/content/abstract/277/7/553 to read the article abstract).
"Primary care physicians who spend more time educating their patients and orienting them to what happens during an exam -- and those who use humor -- have a lower claims incidence," he notes. "This reflects our common observation that friendly and compassionate family physicians seem to be rarely sued."
Informed consent -- as well as informed refusal -- hinges on careful consideration of the available information, followed by formulation of an appropriate management course in consultation with the patient. And though it may seem painfully obvious, remember that the "hoped-for" result here is that seen from the patient's, not the physician's, perspective.
Above all, says Colon, learn to look at the threat of being sued as "a cost of doing business."
"We are looked upon by the law as purveyors of health," he says, "just as the guy at the paint store is looked on as a purveyor of paint. So in that sense, a medical liability lawsuit is no different from a product liability case. If doctors start understanding that, it sure is a lot easier on their psyches."
FP Report is published by the
AAFP News Department.
Copyright © 2003 by
American Academy of Family Physicians.