While a majority of medical malpractice claims against physicians involve an adverse outcome, or the patient’s perception of one, a small but growing percentage of patient injuries are the result of medical negligence or physician incompetence. Adverse outcomes can occur despite excellent medical care as well as non-adherence to the standard of care.
Analysis of closed claims and depositions gives insights into the reasons patients are angry enough to pursue litigation after they’ve experienced an adverse outcome of personal injury, as well as insight into a physician’s liability and medical negligence. Here are the top 10 reasons physicians are sued for medical malpractice:
- Weak medical records
Attorneys may be encouraged to pursue a personal injury case if the medical record does not adequately explain what the doctor did or did not do. Records will undermine a defense if they lack documentation of the physician’s rationale for critical decisions, as will factual errors, omissions, illegible entries, unresolved contradictions, or questionable alterations. An altered medical record almost always guarantees even a medically-defensible case will be settled.
- Inadequate history-taking
Important medical information is not elicited, identified or documented, such as allergies, drug use, family history, past medical history, and names of other treating physicians. Incomplete medical histories remain a major reason for diagnostic delays in breast, lung and colorectal cancer, and heart disease.
- Inattentive follow-up
Pending medical problems identified on one visit are not adequately followed up on subsequent visits, resulting in patient injury. – When a doctor elects to observe and monitor, rather than refer the patient to a specialist or for diagnostic studies: 1) document the reasons for deferring action, 2) revisit the problem when the patient is next seen; and 3) document a course of action, or note that the problem has been resolved.
- Informed consent was not obtained
Risks of treatment and the elements of informed consent discussion are not explained or properly documented. Informed consent – the physician has explained the purpose of treatment or tests; the risks, alternatives and their risks, and the expected outcome; and answers the patient’s questions. The consent form patients sign is virtually worthless unless the doctor has personally obtained the patient’s consent by following the steps described. A handwritten or dictated note about the consent discussion is often more helpful in defending the physician than a signed consent form.
- Informed refusal was not obtained
Risks of refusal of care discussed with a patient are not documented. – Patients have the right to decline hospitalization, referral to other doctors, or any treatment. When the patient declines, the physician is obliged to explain the possible consequences of the patient’s choice. Only after the patient has been given the information can it be said that the patient has given an “informed refusal,” which should be documented by a confirming letter to the patient.
- Overlooked lab studies
Diagnostic lab studies and imaging tests are not received in a timely manner or acted upon. – Utilize an effective diary system for keeping track of ordered tests and referrals. Assign a staff member to find out why an expected report was not received. To safeguard against overlooking significant test results or consultant’s letters, physicians should prohibit filing such items unless the doctor has initialed them as evidence they have been reviewed. Claims in which filed, unreviewed reports resulted in a delayed diagnosis or treatment and contributed to a patient injury are rarely defensible—and always costly.
- Communications problems
Miscommunication with co-treating, referring and consulting physicians results in overlooked or duplicate therapy, and delays in diagnosis or treatment. – Keep track of referrals; question delays in receiving reports; and document telephone conversations with colleagues, medical experts and patients in which important information is given or received.
- Medication problems
Prescriptions and refills are not adequately documented, causing or adding to patient injury. – Careless medical record charting and incomplete documentation of prescriptions and refills are common factors in facilitating claims. Use a medication control record to easily track medications and reduce the risk of overlooking drug interactions or patient dosing errors.
- Weak patient education
Patients are inadequately educated about their medical condition, treatment, and follow-up, which results in non-compliance, injury, misunderstanding, disappointment, and an inclination to litigate. – Oral education may be inadequate and easily forgotten by patients. Relying on a pharmacist to educate patients about drug use, side effects and interactions can be risky. Dispense written information about diseases or conditions, drugs prescribed, self-care and follow-up. Document that this information was dispensed.
- Inattention to the importance of a sound doctor-patient relationship
Litigation often ensues when doctor-patient relationships are damaged by poor telephone etiquette; excessive or unexplained waiting time; rudeness by physicians or staff; inattention to the patient’s concerns; and delays in reporting significant test results. – Make sure your staff understands they are your “patient relations department.” The way staff treats patients on the phone and in person reflects favorably or unfavorably on the doctor. Don’t over-schedule. Apologize for delays; everyone’s time is valuable. Treat patients respectfully. Plaintiff’s attorneys say that most people who want to sue are more angry than injured.
Kathleen A. Mary, Certified Legal Nurse Consultant, has reviewed hundreds of medical malpractice and personal injury cases that involve negligent omissions. Please contact Kathleen to assist you in your next medical-legal case.