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10 steps to limit liability

By David H. Sohn, JD, MD, and the Washington Health Policy Fellows

How you can help stem the medical liability crisis

“Ahead of the Curve” ended 2008 with a review of some of the flaws of the current malpractice system. With a new year, it’s time to make some resolutions, so this article includes practical advice on avoiding lawsuits, defending yourself if you are sued, and getting involved in the fight to change the system.

Although many researchers have concluded that malpractice suits are essentially random events, orthopaedic surgeons can take certain steps to limit their liability risk profile and help curb the current malpractice crisis.

Invest time in communicating with your patients
Poor communication has been established as a critical factor linked to medical liability claims. A closed claim analysis of 127 mothers who sued citing perinatal injuries revealed that nearly all felt their physicians would not talk to them, answer their questions, or listen to them.

Risk managers, insurers, and malpractice attorneys all believe that the quality of the doctor-patient relationship is the primary factor in determining whether a patient will sue his or her physician. Common courtesy, good telephone manners, and a pleasant office staff actually can decrease the frequency of lawsuits.

If an adverse event occurs, taking time to explain what occurred and answering the patient’s questions honestly is imperative. The acknowledgement of an unexpected outcome or error, and an apology when appropriate, actually reduces the risk of lawsuit.

Discuss risks and benefits in the clinic and document the discussion
Discussing the risks and benefits of surgical procedures in the office, as opposed to in the hospital ward or preoperative waiting area, has been found to reduce the risk of lawsuits; discussions in the office are more interactive and substantive, particularly when dealing with questions of informed consent.

A closed claims analysis of more than 24 years of claims involving orthopaedic surgeons and disputes over informed consent found that when the operating surgeon obtained the patient consent in the office, the risk of a medical liability payment was significantly decreased. Obtaining consent in the hospital ward or in the preoperative waiting area, on the other hand, carried an increased indemnity risk.

Documentation of the informed consent process, either in the office note or the operative note, is also associated with a decreased indemnity risk (p<0.005). In two cases a signed consent was not found, but the defendant prevailed because supporting documents noted that informed consent discussions took place. Conversely, in cases with signed permits, the plaintiffs prevailed when the operative report or clinic notes did not mention the informed consent process.

Do not change any records
Although the prospect of a medical liability lawsuit is daunting, 86 percent of cases are ruled in favor of the physician. Of all medical liability claims filed, only 1 percent are ruled in favor of the plaintiff.

Altering the record, even innocently, can enable the plaintiff’s lawyers to cast aspersion on a physician’s character and imply fraud. The attorney may insinuate to the jury that the physician made an attempt to deceive, and thus undermine the natural trust that the public tends to afford to physicians. If you realize that you’ve made a mistake on the record, do not attempt to fix it later; simply write an addendum.

Write legibly
If you do not use electronic health records, make sure that your notes can be read. Many attorneys have argued that mistakes were made because nurses and consultants could not read the physician’s notes.

Document contemporaneously with treatment
Don’t let days or weeks go by between performing an operation and dictating the operative note. If you do, the plaintiff’s attorney can argue that your recollections are not accurate. Or, if an adverse event occurs before your dictation, you may be accused of altering the dictation to obscure or defend yourself against litigation.

Read the entire chart, including nurses’ notes
Everything in the chart can be construed against you in hindsight. Disagreements between your assessments of a patient’s condition and the nurse’s assessment, for example, are a red flag on chart review. If a dispute occurs, examine the patient together and document the agreed-upon findings.

If you are named in a lawsuit, notify your insurer immediately
You are working as a team with the hospital and insurance company. Notify your carrier and/or the hospital as soon as any incidents or serious events take place, including bad outcomes or letters from lawyers. This enables early investigation and, in some cases, intervention.

Don’t discuss your case generally Confine your discussions to your spouse and your attorney. Anyone you speak to can be deposed as an additional witness against you. You will be asked to provide, under oath, a list of all persons with whom you have discussed the case.

Be aware of and comply with professional standards and regulations
The AAOS Standards of Professionalism (SOPs) establish minimum standards of acceptable conduct for orthopaedic surgeons. To date, the AAOS Fellowship has adopted the following six SOPs: Providing Musculoskeletal Services to Patients; Professional Relationships; Orthopaedic Expert Witness Testimony; Research and Academic Responsibilities; Advertising by Orthopaedic Surgeons; and Orthopaedist-Industry Conflicts of Interest. The enforcement of these SOPs through the AAOS Professional Compliance Program demonstrates the Academy’s commitment to the high ethical principles contained in the AAOS Code of Medical Ethics and Professionalism. Information on these SOPs and the AAOS Professional Compliance Program can be found on the AAOS Web site at www.aaos.org/profcomp

In addition, new regulations, such as the Federal Trade Commission’s Red Flag Rules, require physicians who accept deferred payments to implement an Identity Theft Prevention Policy to find, prevent, and mitigate instances of identity theft. Establishing a program to adequately protect patient data in your office could help reduce the risk of a lawsuit based on identity theft. For more information on the Red Flag Rules requirements, see the article on Identity Theft Red Flag Regulations and Guidelines, in the Practice Management section of the AAOS Web site, or review the article “Identity Theft: Could it happen in your office?” from the December 2008 issue of AAOS Now.

Contribute to a medical PAC
Tort reform, particularly caps on noneconomic damages, has been proven to work in states such as California and Texas. Caps not only reduce the number of lawsuits, they also reduce payouts, litigation costs, and medical liability premiums for physicians. States that have enacted caps also attract more physicians, including surgical specialists. Although considerable evidence exists on the effectiveness of caps, physicians have not been able to convince legislators to enact them as part of a federal tort reform package.

Part of the reason is the strength of the trial bar’s contribution to political election campaigns. In 2004, lawyers and law firms led all industries in federal political giving, spending a staggering $182 million on federal campaigns alone. This outspent the corporate health care sector by more than 50 percent.

More than 90 percent of trial lawyers contribute to the political action committee (PAC) of the trial bar. By comparison, less than 10 percent of physicians contribute to a medical PAC. Although partici­pation in the Orthopaedic PAC has risen over the years (currently at 28 percent of AAOS members), this number could certainly be improved.

The Orthopaedic PAC, under the direction of Stuart L. Weinstein, MD, is the nation’s only PAC dedicated to representing orthopaedic surgeons. It enables AAOS members to participate in the political process and help elect legislators who will best represent patients and physicians with orthopaedic concerns. For more information on the PAC, see the article on page 46 and visit the PAC Web site at www.aaos.org/pac

The Washington Health Policy Fellows include David H. Sohn, JD, MD; Ryan M. Nunley, MD; Aaron Covey, MD; John H. Flint, MD; James Genuario, MD, MS; A. Alex Jahangir, MD; Sharat K. Kusuma, MD; Samir Mehta, MD; Daniel Eduardo Prince, MD; Anil Ranawat, MD; and Alok D. Sharan, MD.

References:

  • To Err Is Human: Building a Safer Health System. Edited, Washington, DC, Institute of Medicine, 2000.
  • Confronting the New Health Care Crisis: Improving Health Care Quality and Lowering Costs by Fixing Our Medical Liability System. Edited, Washington, DC, Office of the Assistant Secretary for Planning and Evaluation, US Department of Health and Human Services, 2002.
  • Harming Patient Access to Care: The Impact of Excessive Litigation. In: Subcommittee on Health of Committee on Energy and Commerce, 107-27. Edited, 107-27, Washington, DC, US Government Printing Office, 2002.
  • Profitability by Line by State in 1976 and 2002. Edited, Kansas City, MO, National Association of Insurance Commissioners, 2003.
  • Claim Trend Analysis. Edited, Rockville, MD, Physician Insurers Association of America, 2004.
  • Edited, Center for Responsive Politics, 2008.
  • Anderson RE. Defending the Practice of Medicine. Arch Intern Med. 2004; 164(11): 1173-8.
  • Bernstein J, MacCourt D, Abramson BD. Topics in Medical Economics: Medical Malpractice. J Bone Joint Surg Am. 2008; 90(8): 1777-82.
  • Bhattacharyya T. Evidence-Based Approaches to Minimizing Malpractice Risk in Orthopedic Surgery. Orthopedics. 2005; 28(4): 378-81.
  • Bhattacharyya T, Yeon H, Harris MB. The Medical-Legal Aspects of Informed Consent in Orthopaedic Surgery. J Bone Joint Surg Am. 2005; 87(11): 2395-400.
  • Born P, Viscusi W, Baker T. The Effects of Tort Reform on Medical Malpractice Insurers' Ultimate Losses. In: NBER Working Paper 12086, http://www.nber.org/papers/w12986. Edited, http://www.nber.org/papers/w12986, Cambridge, MA, National Bureau of Economic Research, 2006.
  • Brennan TA, Leape LL, Laird NM, Hebert L, Localio AR, Lawthers AG, Newhouse JP, Weiler PC, Hiatt HH. Incidence of Adverse Events and Negligence in Hospitalized Patients. Results of the Harvard Medical Practice Study I. N Engl J Med. 1991; 324(6): 370-6.
  • Brennan TA, Sox CM, Burstin HR. Relation between Negligent Adverse Events and the Outcomes of Medical-Malpractice Litigation. N Engl J Med. 1996; 335(26): 1963-7.
  • Combes J: Informed Consent and Disclosure of Unanticipated Outcomes: The Duty to Inform. In Pennsylvania Bar Institute Seminar. Edited, Philadelphia, PA, 2003.
  • Drinkard J. Dems Defeat Bill to Curb Awards in Malpractice Suits. In: USA Today. Edited, 2003.
  • Epps CH, Jr. Medical Liability, 1986. Problem, Prescription, Prognosis. J Bone Joint Surg Am. 1986; 68(7): 1116-24.
  • Furey A, Stone C, Martin R. Preoperative Signing of the Incision Site in Orthopaedic Surgery in Canada. J Bone Joint Surg Am. 2002; 84-A(6): 1066-8.
  • Hickson GB, Clayton EW, Githens PB, Sloan FA. Factors That Prompted Families to File Medical Malpractice Claims Following Perinatal Injuries. Jama. 1992; 267(10): 1359-63.
  • Hoffman PJ, Plump JD, Courtney MA. The Defense Counsel's Perspective. Clin Orthop Relat Res. 2005;(433): 15-25.
  • Hull M, Cooper R, Bailer C, Wilcox D, Gadberry G, Wallach M. House Bill 4 and Proposition 12: An Analysis with Legislative History. Iii: Detailed Analysis of the Medical Liability Reforms. Texas Tech Law Review. 2004; 36.
  • Keeton W, Dobbs D, Keeton R, Owens D. Prosser and Keeton on Torts. Edited, St. Paul, MN, West Publishing, 1984.
  • Kessler D, McClellan M. Do Doctors Practice Defensive Medicine? Q J Econ. 1996; 111: 353-90.
  • Kilgore M, Morrisey M, Nelson L. Tort Law and Medical Malpractice Insurance Premiums. Inquiry. 2006; 43: 255-70.
  • Localio AR, Lawthers AG, Brennan TA, Laird NM, Hebert LE, Peterson LM, Newhouse JP, Weiler PC, Hiatt HH. Relation between Malpractice Claims and Adverse Events Due to Negligence. Results of the Harvard Medical Practice Study Iii. N Engl J Med. 1991; 325(4): 245-51.
  • Matsa D. Does Malpractice Liability Keep the Doctor Away? Evidence from Tort Reform Damage Caps. Journal of Legal Studies. 2007; 36.
  • Pace N, Golinelli D, Zakaras L. Capping Non-Economic Awards in Medical Malpractice Trials: California Jury Verdicts under Micra. Edited, Santa Monica, CA, RAND Corporation, 2004.
  • Roberts B, Hoch I. Malpractice Litigation and Medical Costs in Mississippi. Health Econ. 2007; 16(8): 841-59.
  • Sharan DA, Genuario J, Mehta S, Kusuma S, Ranawat A, Nunley R, Weinstein SL. Current Issues in Health Policy: A Primer for the Orthopaedic Surgeon. J Am Acad Orthop Surg. 2007; 15(2): 76-86.
  • Studdert DM, Mello MM, Gawande AA, Gandhi TK, Kachalia A, Yoon C, Puopolo AL, Brennan TA. Claims, Errors, and Compensation Payments in Medical Malpractice Litigation. N Engl J Med. 2006; 354(19): 2024-33.
  • Studdert DM, Mello MM, Sage WM, DesRoches CM, Peugh J, Zapert K, Brennan TA. Defensive Medicine among High-Risk Specialist Physicians in a Volatile Malpractice Environment. Jama. 2005; 293(21): 2609-17.
  • Suk M, Udale AM, Helfet DL. Orthopaedics and the Law. J Am Acad Orthop Surg. 2005; 13(6): 397-406.
  • Weiler PC. A Measure of Malpractice: Medical Injury, Malpractice Litigation and Patient Compensation. Edited, Cambridge MA, Harvard University Press, 1993.

AAOS Now
January 2009 Issue
http://www.aaos.org/news/aaosnow/jan09/reimbursement3.asp