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Identifying the patient most likely to sue can be difficult, especially when myths persist about high-risk patients.
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AAOS Now

Published 10/1/2013
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Andrew D. Markiewitz, MD

Identifying the High-Risk Patient

Separating myth from reality

The high-risk patient is not easily defined. Physicians often make their own determinations based on personal experience. Although the high-risk patient is often assumed to be uninsured or poorly insured, elderly, demanding, mentally challenged, previously injured, sick, or litigious, not all of these characteristics are accurate descriptors.

This article attempts to separate myth from reality in defining the high-risk patient. A subsequent article will focus on steps physicians can take to mitigate risk when treating high-risk patients.

The uninsured sue more
Not only is this a myth, but it is a myth that adversely affects participation in emergency call panels because an accompanying myth is that patients seen in the emergency department (ED) are poorly insured. These myths confuse trauma visits with insurance status.

Nearly 70 percent of patients who are seen in the ED have some form of insurance; with healthcare reform, this percentage should increase. The problem is that under- or uninsured patients often lack the finances or social support system that would enable them to comply with care plans.

Several studies indicate that Medicaid, Medicare, and indigent patients do not use the legal system more than insured patients despite the potential for substandard care. Studies have also found that most adverse events never result in a claim. These studies cast doubt on the adage that the poor and uninsured represent a higher legal risk than insured patients.

Taking call is risky
Participating in ED call should not be taken lightly. Surgeons are more likely to be sued than emergency medicine physicians, radiologists, and anesthesiologists. Although the risk of being sued is real, this does not mean the plaintiff will win. Nor is call necessarily linked to the risk of a lawsuit.

According to the New England Journal of Medicine, more than 7 percent of doctors get sued each year; among neurosurgeons, general surgeons, orthopaedic surgeons, and cardiothoracic surgeons, the annual percentage is between 15 percent and 19 percent. Thus, for many physicians, being sued is not a matter of “if,” but “when.”

Because many states have created protections for good Samaritans who have to provide care unexpectedly, physicians should not allow fear of a lawsuit to prevent them from providing care in an emergency setting.

Difficult cases lead to lawsuits
This is another myth. High-risk patients can be defined as those at increased risk of adverse events regardless of the quality of care delivered. These include patients with comorbidities such as diabetes, liver disease, and cardiac, renal, lung, or immunosuppressed conditions.

By identifying patients who may be at risk for poorer outcomes, physicians can clearly define the expected results of medical intervention. Documenting these discussions with patients and families can minimize the legal risk when patients have unrealistic expectations. Similarly, when a patient’s ability to consent is impaired, defining expectations for the family can help minimize legal exposure.

Unhappy patients sue
This is not a myth, but reality. Anger usually results from poor outcomes or ill-defined expectations. The brusque physician who is short with patients may fail to develop a patient–physician rapport that can offset dissatisfaction. Communication is key. Physicians must take the time to listen to the patient, understand the situation, explain the status, agree on a plan, and offer options. Physicians must carefully cover all aspects of the risk-benefit decision.

Getting a consensus among family members who do not agree with each other is challenging and may not be possible. In these situations, one family member must be identified as having medical power of decision, and this must be documented.

Doc-shoppers are dangerous
Does a patient who shops for a doctor pose a legal risk? This myth has two parts to it. Sometimes, a patient with a sensitive problem that requires compassion and time to defuse is simply looking for a physician with whom to bond. Once the patient identifies a doctor, the patient may become a loyal and dedicated partner.

On the other hand, some doc-shoppers are seeking medication or tests. They hope for a lack of communication among healthcare centers. These patients may misrepresent their histories, leading to incomplete work-ups, duplication of effort, unexpected drug interactions, and unnecessary care.

Inappropriate prescriptions place the provider at risk. Complications of prescription use include diversion, misuse, and risky interactions with nonprescription drugs, other prescription drugs, or alcohol. Use of protocols and controls may limit these risks and have been encouraged by insurance carriers. A higher level of suspicion is warranted when dealing with patients who have sought opinions at many different centers and who seem to be unemotional or professional about their disease.

Once sued, twice rued
Is the litigious patient always a risk? Certainly, physicians should avoid treating patients who have previously sued their partners or group. At a minimum, the physician should discuss the situation with his or her insurance carrier.

Physicians should listen to their staffs regarding patient behaviors. Unhappy patients who keep looking for the next best surgeon to perform unnecessary care are risky, according to defense attorney Michael Sacopulos. If the physician can’t develop a trusting rapport with the patient, the physician should terminate the relationship using appropriate techniques to avoid a charge of abandonment.

The high-risk patient is rare
Any patient encounter can become a risky situation to a physician. Patients can resort to legal recourse against physicians or hospitals when they don’t understand the potential risks and benefits that they or family members faced when determining a choice of action. The patient’s insurance status, socioeconomic status, number of comorbidities, or previous litigation history don’t appear to affect the physician’s legal risk.

An individual’s right to legal recourse is a hallmark of American society. Society’s unrealistic expectations for perfect results from healthcare providers continue to drive our legal system. Until the tort system improves, physicians will always be at legal risk for care that may not be perceived as encompassing the best results possible. By documenting a compassionate and 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.

Additional Resources

  1. Attarian DE. Do the uninsured present a higher liability risk? AAOS Now, May 2007.
  2. Burstin HR, Johnson WG, Lipsitz SR, Brennan TA: Do the poor sue more? A case-control study of malpractice claims and socioeconomic status. JAMA 1993; 270: 1697-1701.
  3. Francis, T. Are Medicaid Patients More Likely to Sue? Medscape. Jan 16 2013
  4. Gallegos, A. How doctors can spot patients likely to sue. February 4, 2013.
  5. Huntington B, Kuhn N. Communication gaffes: a root cause of malpractice claims. Proc (Bayl Univ Med Cent). 2003 April; 16(2): 157-161.
  6. Jena AB, Seabury S, Lakdawalla D, Chandra A. Malpractice Risk According to Physician Specialty. N Engl J Med 2011; 365(7): 629-636.
  7. Kaplan K. What types of doctors are most likely to get sued? Los Angeles Times, August 17, 2011.
  8. Lindsey H. Facing the Difficult Issue of Potentially Litigious Patients. Oncology Times. 10 February 2007, 29(3): 40-42.
  9. McClellan FM, White III AA, Jiminez, R, and Fahmy S. Do Poor People Sue Doctors More Frequently? Confronting Unconscious Bias and the Role of Cultural Competency.  Clin Orthop Relat Res. 2012 May; 470(5):1393–1397.
  10. Do Medicaid and Medicare Patients Sue More Often Than Other Patients? Office of Technology Assessment. Sept 1992.
  11. Roberts RG. Seven Reasons Family Doctors Get Sued and How to Reduce Your Risk. Fam Pract Manag. 2003 Mar; 10(3):29-34.
  12. 10 Things that get physicians sued. Texas Medical Liability Trust, July 2009.
  13. Weber EJ, Showstack JA, Hunt KA, Colby DC, Grimes B, Bacchetti P, Callaham ML. Are the Uninsured Responsible for the Increase in Emergency Department Visits in the United States? Annals of Emergency Medicine. 2008 August; 20(10): 1-8.