Four Ways to Prevent Malpractice Lawsuits

Medical malpractice lawsuits are extraordinarily common, and even the most conscientious physicians are statistically likely to face a claim at some point during their career. According to one large study, 75% of physicians in “low-risk specialties” and 99% of physicians in “high-risk specialties” had a malpractice claim filed against them by the time they reached age 65.¹ The good news is most malpractice suits do not result in payouts to plaintiffs. Anyone can file a lawsuit, whether their complaint has merit or not. Most suits do not go to trial, and in those that do, studies show that juries tend to favor doctors over plaintiffs.²

Still, being served with a suit is stressful. Even if you win the case, you may lose time, emotional well-being, legal expenses, and more.

Although there is no way to guarantee you will not face a malpractice claim during your career, there are ways to lower your risk. Preventing malpractice lawsuits for family physicians involves a multi-faceted approach centered on an understanding of malpractice criteria, excellent patient care, clear communication, and meticulous documentation.

Lawyers evaluate potential malpractice lawsuits based on the following criteria: whether the physician (or other clinician) had a professional duty to the patient, whether they failed to meet the standard of care, and whether the patient was injured due to the failure to meet the standard of care. Understanding your legal responsibilities is the foundation of avoiding lawsuits.

Professional duty owed to the patient. This is the easiest element for the plaintiff and their attorney to establish. When you treat a patient, you establish some level of professional responsibility for their health outcomes. The key thing to know is that this professional duty exists in many different circumstances. It applies not only for your regular patients but also when you cover patients for a colleague, work in a free clinic, or provide emergency services to an accident victim by the roadside (though in this last instance your professional responsibilities are likely governed by “Good Samaritan” laws that differ by state³). A professional duty is not automatically established if you provide advice to someone you encounter in a non-professional setting outside the hospital or clinic, such as in a social gathering or when talking to family or friends. This is legally murky, so it is safer to avoid providing informal care.⁴

Failure to adhere to the standard of care. The standard of care is determined by a mix of statutes, administrative/licensing regulations, and evidence-based clinical guidelines. It can vary from state to state, but generally it refers to the care that a reasonable, similarly situated professional would have provided to the patient. Cases that go to trial often hinge on expert witness testimony to establish that the physician either did or did not adhere to the standard of care. An expert may not be needed when something is so egregious that laypeople can easily understand how it fails to meet the standard of care (e.g., amputation of the wrong limb).

Injury caused by the breach. In order to claim damages in a suit, plaintiffs must show they were directly injured by the physician’s failure to meet the standard of care. For example, if a patient has a breast lump, the standard of care may be to order a mammogram and ultrasound, depending on their age and risk factors. If the physician does not recommend this (or fails to document that they recommended it and informed the patient of the risks, but the patient refused the test), then the physician has not met the standard of care. Still, if that lump was a cyst, and the patient did not suffer any ill effects from the delayed diagnosis, there would be no malpractice because the patient did not experience harm from the breach of the standard of care.

This type of “failure to diagnose” claim is the most common malpractice suit filed against family physicians⁵ — no surprise given the incredible breadth of injuries and illnesses family physicians must evaluate. It is not enough for a plaintiff to show that the physician missed a diagnosis; they must also show they were injured as a result. If the patient suffers injury from something other than the physician’s failure to follow the standard of care, then the physician is not liable for the injury.

When plaintiffs can prove that the physician had a professional duty, breached that duty by failing to meet the standard of care, and it resulted in injury, the court will determine monetary damages to compensate the patient for direct costs. The court could also assess punitive damages, but that is rare in medical malpractice cases. Courts usually reserve punitive damages for especially egregious conduct that society has a particular interest in deterring, e.g., sexual abuse of a patient or altering or deliberately destroying medical records.

Because the standard of care plays such a key role in malpractice suits, the most important strategy to prevent them is to provide excellent care. That is generally every doctor’s goal, but here are some specific, practical ways to do so.

Follow evidence-based guidelines. It is critically important to stay current with the latest evidence-based practices, guidelines, and advancements in family medicine. Following guidelines is a strong defense in court. If you have to take a unique treatment approach that deviates from common guidelines, it is important to discuss the plan with the patient in a way that they understand, and document your rationale in detail.

Know your limits. While family physicians are highly qualified to care for most conditions, it is important to seek help for challenging or unique cases beyond your limits. It is also important to supervise non-physician clinicians (NPCs) carefully, because you can be held legally responsible for any mistakes nurse practitioners and physician assistants make while under your supervision. If you are an employed physician, try to negotiate your contract so that you get to decide whether you will supervise NPCs and how many you will supervise at one time.⁶ You should also have the choice of who to supervise and the ability to end that supervision relationship at your discretion.

Watch for high-risk conditions. Certain conditions are like magnets for lawsuits because they have a high incidence, generate a lot of publicity, and carry heightened public expectations for early prevention and cure. The most common are (in descending order) myocardial infarction, breast cancer, appendicitis, lung cancer, and colon cancer.⁷ Be especially careful when diagnosing and treating these conditions.

Double-check your work. Implement internal checks and balances to minimize errors, especially with medication prescribing, dosages, and complex procedures. I often look up things in front of patients, telling them, “I’m not perfect, but I have to be. I’m 99% sure of the answer, but I want to be 100% sure.” This approach also lets patients know I am caring and diligent, reducing the risk of a lawsuit.

Create tracking systems. Patients can “slip through the cracks,” increasing the risk of adverse events and malpractice suits. Create office systems that track missed appointments and unread or abnormal test results. Ensure that all ordered lab tests and imaging studies are performed, reviewed, and acted upon, and document the review of all results. Tracking systems help ensure that patients get recommended screenings such as colonoscopies and mammograms on time, which helps prevent some of the high-risk conditions mentioned above.

Miscommunication between physicians and patients can contribute to lawsuits. Communication errors between physicians and the rest of the health care team can also lead to treatment errors or missed diagnoses.

Accept patient feedback. Establish mechanisms for receiving and addressing patient complaints and feedback. Follow up with angry patients. If a patient who usually pays promptly has left a bill unpaid for awhile, it may be a sign that they are dissatisfied with their care. Rather than just sending another bill, reach out and ask if something is wrong.

Strengthen patient relationships. Patients are less likely to sue a physician with whom they have a positive, trusting relationship, even if an adverse outcome occurs. Show patients you care, and listen attentively to their concerns. Be kind and let patients see your human side when appropriate. If you have to keep patients waiting, tell them what to expect. Have staff explain delays and give estimates for when patients will be seen. Thank patients for waiting. Give them your full attention when in the exam room or at the hospital bedside. Do not interrupt patients.

Ensure understanding. Explain diagnoses, treatment plans, risks, and alternatives thoroughly and in terms patients can understand. Ask your patient to explain the information back to you to check comprehension. Involve the patient in medical decision making, and document the discussion in detail. Encourage questions and allow time for discussion. Although family physicians are busy, spending a little more time with patients can prevent mistakes, so strive to find the right balance. Be honest with patients about potential complications and be realistic about outcomes. Advise patients when to contact you or seek emergency care if symptoms develop or worsen.

Use true informed consent. Engage in a detailed conversation with the patient about a proposed procedure, its risks and complications (however minor), and alternative treatments, including what happens if no treatment is pursued. Document this discussion thoroughly. Do not push a procedure on an unwilling patient.

Encourage team feedback. All members of the health care team should feel empowered to voice concerns about treatment plans and report any negative incidents or errors. Create and follow protocols for handling errors and notify your malpractice insurer when appropriate. Use feedback to identify areas of risk and address them before they escalate into lawsuits.

Stay in contact with colleagues. Communicate with anyone covering for you when you are off duty. Address notes from other physicians and members of the health care team as promptly as possible.

Documentation is a key component lawyers use to determine if there is a malpractice case. “If it’s not documented, it didn’t happen,” is a common saying in medicine, and it is especially true in a courtroom. In the absence of contrary evidence, juries may assume the worst. It is important to be diligent with your documentation for all patients. You may have a wonderful relationship with a patient, but if something goes wrong, their family — who may not know you as well or trust you as much — could decide to sue.

Train the entire health care team to provide thorough documentation. Document all patient interactions, including detailed medical history and physical findings, your diagnostic thought process, and treatment plans, including your rationale and alternatives you discussed. Explain how you arrived at a differential diagnosis, especially if there are serious diagnoses in your differential. For instance, if your patient has chest pain, do more than simply list GERD as your diagnosis. Explain why the pain is unlikely of cardiac origin. Schedule a recheck when you are tentative about a diagnosis. Document any warnings you give or risks you discuss. Use phrases like, “Advised patient to come to office or ED if symptoms persist or worsen, including fever, pain, or bleeding.”

Always record vital signs. Missing vitals can be problematic, especially in “failure-to-diagnose” cases. Train your clinical staff to always capture and document them, and make sure you recognize abnormal signs and respond appropriately.

Document your recommendations, even if the patient doesn’t accept them. Thoroughly document your conversations with patients about the risks and benefits of medications, screenings, and other treatments you recommend. Document any patient education you provided, that you verified their understanding of it, and any non-adherence with the treatment plan. You cannot force a patient to get a colonoscopy or a mammogram, but documenting your medical advice protects you legally if they later develop colon cancer or breast cancer. Use EHR “smartphrases” (designated abbreviations or keywords that spur the EHR to add a predetermined block of text) to save time on common recommendations. For example, with just a few keystrokes, I can add this to my documentation: “Discussed risks and benefits of test with patient. Recommended patient get a mammogram due to the importance of breast cancer screening. Explained to patient risk that if they do not get this test promptly, it could result in a missed breast cancer diagnosis, metastasis, and death. Patient voiced understanding.” You should also carefully document any referrals or other follow-up actions you made, to avoid liability if they patient does not adhere to them.

Document all verbal interactions where the patient or their family disagrees with your plan or threatens to sue. Inform your malpractice carrier when appropriate.

Use factual and objective language. Avoid judgmental or potentially offensive descriptors. Any documentation could end up being read in front of a judge or jury. While EHRs and virtual scribes can be helpful, be aware of their pitfalls. Avoid excessive copy-pasting, ensure accurate and complete medication lists, and use warning systems for contraindications. Pay attention to the accuracy of transcribed or dictated information. Never alter charts.

Using the strategies described above can improve patient care and reduce your risk of adverse events and malpractice suits. However, mistakes can still happen, so physicians should be prepared for the possibility of a lawsuit during their careers. Secure appropriate malpractice insurance with a reputable carrier that offers risk management tools and support. Understand your policy’s limits and exclusions, and find out if your malpractice insurance carrier offers educational programs and premium discounts for completing them.

The next article in this two-part series will discuss how to survive a lawsuit.