The typical family physician can expect to be sued about once every seven to 10 years. Although in the vast majority of cases insurance covers monetary damages, the legal process causes a major disruption to the physician's practice and extracts a tremendous price in emotional distress, including loss of self-esteem and sometimes, public regard.
There are two approaches to addressing this problem. You can ignore the legal issues, try to do a good clinical job and hope to avoid a lawsuit. Or you can develop a formal approach to lowering the risk of lawsuits in your practice and make your care defensible if you are sued. I recommend the latter.
Steps toward making this proactive approach work include keeping in mind the areas of greatest risk in family medicine, understanding the common pitfalls of these clinical conditions and knowing how best to document care in a defensible manner.
For family physicians, myocardial infarction, breast cancer, appendicitis, lung cancer and colon cancer are associated with the highest risk of malpractice suits.
Full documentation can demonstrate that a physician did the right thing, and it represents the physician as one who is careful and caring.
Especially in high-risk situations, be sure to document the advice you give the patient, the thought processes behind your diagnosis and your follow-up plan.
Conditions with high malpractice risk
The five medical misadventures that result most commonly in malpractice suits are all errors in diagnosis, according to a 1999 report from the Physician Insurers Association of America (PIAA). In descending order of lawsuit prevalence, the diagnoses involved are myocardial infarction, breast cancer, appendicitis, lung cancer and colon cancer.1
These conditions are characterized by high incidence, extensive publicity and heightened public expectations for early prevention and cure. One way to recall these diagnoses is to “Listen to BACH” (Lung, Breast, Appendix, Colon, Heart).
Chest pain leading to myocardial infarction is the leading cause of litigation against family physicians. More malpractice dollars are awarded for missed myocardial infarctions than for any other single diagnosis, according to the PIAA report. Suits involving myocardial infarction are typically brought by younger patients with negative past histories, normal EKGs and atypical complaints. The typical claim involves an allegation of misdiagnosis or mismanagement of tests.
Common pitfalls in dealing with chest pain include poor documentation of characteristics and precipitating factors for chest pain. A full history should include an evaluation of risk factors; location, duration and radiation of pain; precipitating and relieving factors; and associated symptoms, including diaphoresis, excessive anxiety, a sense of doom, nausea, light-headedness, dizziness or shortness of breath. Other risk areas include failure to give the patient explicit instructions on when reevaluation of apparently noncardiac chest pain is warranted, failure to compare prior EKGs and failure to document an explanation for an “abnormal” EKG report of the kind that is sometimes generated automatically by a computerized EKG unit for what is clearly a benign tracing.
Breast cancer is almost equal to myocardial infarction in litigation prevalence. The most common allegation in a breast cancer lawsuit is that the doctor's actions or lack of action led to a delay in the diagnosis, which resulted in subsequent injury to the patient. While most breast cancer occurs in women older than 50, most malpractice suits regarding breast cancer are filed by women younger than 50 who have discovered breast masses and were assumed by their physicians to have fibrocystic disease of the breast.2 The typical allegation is that the physician did not recognize the significance of a breast lump or that tests and follow-up were mismanaged.
Common pitfalls in dealing with breast cancer include reassuring the patient that a palpated lump is benign without a clear follow-up plan for monitoring changes, failure to follow up on abnormal mammograms and ultrasounds and failure to order appropriate diagnostic tests (see “Establish a system”). Plaintiff attorneys often argue that a physician's care was not aggressive enough in the face of a potentially deadly and curable disease.
Appendicitis suits rank third in prevalence, even though appendicitis is the cause of acute abdominal pain only about 5 percent of the time or less. Allegations tend to concentrate on failure to document an adequate examination and failure to provide proper follow-up care.
Common pitfalls include failure to document a reasonable effort to rule out appendicitis and failure to clearly elucidate follow-up plans should the patient's symptoms change or his or her assumed condition not resolve in a reasonable period. Attorneys commonly emphasize that, when documentation does not convincingly rule out appendicitis, it is incumbent on the physician to provide aggressive follow-up.
Lung cancer suits are fourth in litigation prevalence. The typical allegation involves a claim that the physician did not recognize the importance of a symptom in enough time for early diagnosis and curative therapy.
Common pitfalls include failure to order chest films in patients whose symptoms might arguably indicate lung cancer. When the diagnosis of lung cancer is made, attorneys often point to otherwise nonspecific chest symptoms such as chest pain, cough or recurrent upper respiratory tract infections as evidence of lung cancer and the need for earlier and potentially curative interventions.
Colon cancer suits typically involve the claim that the physician did not intervene with diagnostic tests when symptoms would demand it or failed to properly manage relevant tests.
Establish a system
Suits regarding high-risk areas often involve the mismanagement of tests, something juries are notoriously unforgiving about. Your office practice should be designed so that when tests are ordered, there is a fail-safe mechanism to make certain that the tests are performed and that you review the results.
A host of methods can accomplish this. For example, try using card boxes with date-defined slots where ordered lab and X-ray tests are cross-checked with results as they are received. You could also require that all lab and consult reports be initialed or signed by you, so that nothing is filed back into a chart without your knowledge. The key is to be comfortable with the method you use, to be sure to review all the reports and to be aware of any ordered tests that have not been completed.
A common pitfall is failure to fully evaluate symptoms that may point to colon cancer, among other diagnoses; failure to follow up on abnormal test results; and failure to follow through on tests that the physician recommends. Patients often resist sigmoidoscopy, lower gastrointestinal series or colonoscopy because they perceive them to be painful and embarrassing. The physician who recommends such a test must make sure that the patient receives the test or, if the patient refuses it, that the patient is made aware of the risks of refusal — and that the patient's informed refusal is documented. A claim heard with some frequency is, “If I had known why my doctor ordered that sigmoidoscopy, I would have done it. He just didn't explain it to me.”
While recognizing the high-risk areas is a first step toward lowering your risk of a lawsuit and increasing your chance of winning if you are sued, understanding what's required for full documentation is paramount.
The need for full documentation
After interviewing a potential malpractice plaintiff, one of the first things a malpractice attorney does is review the medical record and submit it to an “expert” for review (see “Understanding the standard of care”). A fully documented record can, at this point, forestall a suit. A poorly documented record can lead an attorney to pursue a claim aggressively.
Full documentation includes fully describing the patient's medical history, physical findings, your diagnosis, the treatment plan and care rendered. It is especially important to document the advice given to the patient with clear follow-up plans.
As a risk manager, I am often asked, “How much is enough documentation?” Without being totally facetious I say, “When a physician is sued, there is never enough documentation.” Rarely do I review a chart that doesn't leave me wishing there were more documentation. Obviously, fully documenting all aspects of a patient encounter is a gigantic task. If a physician is able to document all care on every patient, including phone calls, form completions and prescription refills throughout the day, that is commendable. Most likely, you cannot. I encourage you to at least consider full documentation when dealing with any of the high-risk areas.
Full documentation provides two benefits in particular to the physician defendant:
It provides proof that you indeed did the right thing. Physicians are sometimes needlessly frightened by the admonition that “If you didn't write it down, you didn't do it.” This is of course not true. As a defendant you are perfectly entitled to testify, “I might not have written down that I did X, but I certainly remember doing it.” You also may testify, “I didn't write it down, and I don't remember doing it, but I am sure I did it because it is my custom and habit to do X in these situations.” However, a jury may not believe you. Not writing it down affects the weight of your testimony. All things being equal, the jury is much more likely to believe your testimony if it is supported by a good chart.
It supports the idea that you're a careful and caring physician who gave adequate thought and consideration to the case. The jury will be instructed that medicine is not an exact science and that there are unfortunate outcomes even with the best of care. Juries tend to be forgiving of mistakes in judgment, especially if the physician collecting the proper information analyzes it intelligently and, while trying his best, comes up with the wrong answer. They are equally intolerant of the physician who seems sloppy or careless. These traits, both positive and negative, are often revealed in your charts.
Understanding the standard of care
The law and our profession require us to render ordinary professional care to our patients. This is called the “standard of care.” Many physicians wonder just where this standard of care exists. Is it written somewhere? Is there a committee or panel of experts who decide what the standard of care is?
The answer is that the standard of care has been and continues to be established by expert testimony, and the vast majority of family physicians are qualified to take an oath, sit before a jury and tell the jury just what the standard of care is. Such a physician expert is qualified to testify based on his or her knowledge, skill, experience and training. Testimony typically concerns whether a physician's actions met the standard of care, and, if the standard was breached, whether this breach caused the harm claimed by the plaintiff.
Tips for full documentation
Will full documentation immunize you from losing a suit? Of course not. Every jury trial is a unique experience in human nature, prejudice, lawyerly capability and thespian talents on the stand, but using the following documentation tips will certainly help your case:
Document your advice. For example, the abbreviation “RTC PRN” is commonly and appropriately used in many situations. In high-risk situations where there is a greater likelihood of legal chart review, it lowers risk to document the plan with a more thorough statement such as “The patient is instructed to return to the clinic after her next period for a reevaluation of her breast, but in no case to delay her return more than six weeks.” Even better would be to document that the patient received an instructional handout detailing the parameters for a return visit, a return call or other follow-up.
Document your thought process and differential diagnosis. Consider a patient with chest pain. The physician may simply put down “GERD” as the diagnosis, but a more defensible note might say, “Probable GERD due to nature of pain (burning) and precipitation with certain foods and positions. Coronary disease is unlikely because of lack of risk factors, character of pain, normal EKG and the fact that it is not precipitated by exercise.” The thought processes, history, examination and plan in both cases may be the same, but the second note will be read by the jury as potent evidence of a thoughtful and caring physician.
Make your notes legible. You will not look credible testifying that a squiggle — unreadable even when enlarged and projected in the courtroom — has a clear meaning to you. Also, each sheet in the chart should identify the patient, the physician, the date of the encounter and, if different, the date the note was written.
Rules of risk management
Remember the high-risk areas: “Listen to BACH” (Lung, Breast, Appendix, Colon, Heart).
When dealing with a high-risk area, be especially careful to document a full history and exam, the thought processes behind your diagnosis and a clear plan.
Never alter the chart after receiving notice that you are being sued.
Establish a system in your office to make sure that every ordered test is completed and that the result is reviewed by the physician who ordered it.
Never improperly alter a chart. The one thing that can destroy even a fully defensible case is evidence of chart alteration. The following admonitions are designed to prevent even the appearance of a chart alteration:
If you need to remove or change data in the chart, do not erase the data but put a line though it so it is still readable, sign and date the change.
Never, under any circumstances, succumb to the temptation to make additions to the chart after a suit is threatened or filed against you in an attempt to make your alterations appear to have been made at the time of the original note. Such alterations are dishonest and unethical. Moreover, it is not uncommon for a patient or lawyer to obtain a copy of a chart before filing suit and then obtain another copy after filing for comparison. Suspicious changes are deadly to your case. If, after being sued, you see a mistake in the chart that should be corrected discuss the matter first with your attorney.
Avoid editorial comments about patients. Unless they are medically necessary to improve care, don't make editorial comments. Writing in a chart “loud and obnoxious 43-year-old male” does nothing to improve the patient's care. It may be used to portray you as an intolerant physician who shortchanged a patient due to a personality conflict. Where behavior does affect care, it is important to document it. For example, “As I explained the treatment plan to the patient, he shouted that he was ‘sick of my care’ and left the office. I will send him a letter explaining the plan and offer a referral if he wants one.” Do not use lengthy self-defensive entries in charts to try to explain a medical mishap. Writing “In spite of a lengthy and thorough exam and my best efforts, the patient was admitted with a ruptured appendix” adds nothing to the patient's care and only portrays you as defensive [see also “Documentation Tips for Reducing Malpractice Risk,” FPM, March 2000].
Orchestrating an approach
While fully documenting high-risk cases may not be the most desirable part of patient care, you may be grateful for your efforts after you've avoided a lawsuit or won a hard-fought case — thanks to your thorough documentation planning and practices.