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Published 11/1/2013
Andrew D. Markiewitz, MD

Tips for Dealing with Potentially Litigious Patients

Communication, documentation are key

"Identifying the High-Risk Patient,” in the October 2013 issue of AAOS Now attempted to separate myth from reality about patients assumed to be likely to sue. This article provides tips and techniques for dealing with litigious patients and for minimizing the risk of a lawsuit.

Set realistic expectations
A high-risk situation, for this review, represents an encounter that places the provider at risk for lawsuits. One of the reasons a patient or family member might claim malpractice and sue is suboptimal results from a procedure. Because results are in the eye of the beholder, it is incumbent upon the provider to define the expected results to the patient.

Patients with unrealistic expectations are likely to be disappointed—and that can lead to lawsuits. From the very beginning, the provider should define realistic goals of the treatment. Physicians should not initiate irreversible disease management if the goals of that treatment can’t be well described or communicated back by the patient or family. In elective situations, physicians may wish to encourage patients to obtain a second opinion, especially if they cannot allay patient concerns.

As physicians, we may not be able to resolve every issue. If a patient defers acceptable care, this refusal must be documented, especially if it contradicts standard of care or puts the patient at risk for an adverse event.

Establish trust
All discussions of malpractice risk focus on the time the doctor spends with the patient. If the physician suspects that the patient does not understand something, he or she should slow down and address the patient’s and the family’s concerns. Although the orthopaedic surgeon may have performed a procedure hundreds of times, surgery is a new and terrifying experience for the patient. Taking the time to establish a sympathetic rapport with the patient will serve as a foundation for the entire experience.

By developing a trusting relationship with the patient, the physician may minimize the risk of being sued—even for less-than-expected results. The brusque physician who is short with a patient may fail to develop a patient-doctor rapport that negates dissatisfaction with poor outcomes.

Taking the time to define realistic goals of a treatment with a patient can help avoid disappointment—and a potentially litigious situation.
Courtesy of Thinkstock

Involve others
In many treatment regimens, physicians will need to involve other healthcare providers. For example, social workers can help determine which options to optimize the delivery of care are acceptable to the patient. Patients who make frequent visits to an emergency department may need a primary care physician to prevent fragmented care. To select appropriate interventions and avoid drug interaction events, orthopaedic surgeons may want to coordinate care with the patient’s pharmacist or primary care provider.

Remember the three As
Physicians can minimize their risk of being sued if they remember to be available, able, and affable to all patients equally. This applies not only to the doctor, but to the office staff as well. Staff training and triage protocols are important techniques to optimize care.

Practice the four Cs
According to Richard G. Roberts, MD, JD, the best way to avoid legal issues is to practice the four Cs: compassion, communication, competence, and charting. Compassion allows the physician to understand why a patient is concerned or upset and enables him or her to address and alleviate those concerns.

Honest and open communication among the treatment team and with the patient and family will emphasize that the goal of treatment is the best patient outcome. Communication should cover risks, benefits, and possible complications.

The field of medicine is constantly changing, leading to the need for ongoing education for the physician to stay up-to-date and maintain competence. Physicians must also acknowledge their personal limits. In a unique or difficult case, a consultation with a colleague may be the best step to take.

Being thorough is important in charting. However, the important issues should be defined in objective, respectful language that can be understood by others and is not insulting to the patient. Protocols and systems can be used to reduce unnecessary variation.

Take advantage of technology
In an electronic world, it’s easy to use technology to help avoid high-risk patients, particularly those who exhibit drug-seeking behaviors. Most states have drug databases that physicians can access—and many states require them to do so—before providing narcotics. Physicians should be alert to patients who seem too familiar with narcotic medications and their responses to them. This patient population may misuse or misdirect their medication.

Don’t second guess a previous provider
Patients who have an unsuccessful intervention may seek out a second physician. Rather than being drawn into a discussion of the initial care, the second physician can seek to direct the patient to optimizing his or her current status. By concentrating on the situation at hand, the physician enables the patient to move forward. The second physician should simply document the patient’s present status, define available options, and outline steps going forward.

It is a myth that there are only a few identifiable high-risk situations; any patient encounter can result in a lawsuit. Communication and documentation of all discussions are essential to minimize legal exposure. Physicians should take the time to activate available support systems or agencies to optimize care delivery when potential issues that could compromise care are identified.

The human body depends on a complex interplay of factors to reach a result. The same treatment with the same technique may not produce identical results in different patients despite the delivery of high-quality care. By documenting a compassionate, thorough approach to providing high-level care to all, physicians will minimize their high-risk encounters.

Andrew D. Markiewitz, MD, is a member of the AAOS Medical Liability Committee. He can be reached at deltdoc@aol.com

Editor’s Note: Articles labeled Orthopaedic Risk Manager (ORM) are presented by the Medical Liability Committee under the direction of David H. Sohn, JD, MD, ORM editor.

Articles are provided for general information and are not legal advice; for legal advice, consult a qualified professional.

Email your comments to feedback-orm@aaos.org or contact this issue’s contributors directly.