Avoiding lawsuits: An ounce of prevention

Attorneys offer an insider's view of omissions that could propel a physician into a liability lawsuit.

By Beth Wilson, amednews correspondent — Posted Sept. 26, 2005

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Lee Goldsmith, MD, a one-time doctor turned plaintiff attorney, issues both good news and a warning to physicians regarding medical liability.

Fewer malpractice cases are being filed against doctors who commit diagnostic errors.

But, physicians are being sued for more preventable practices -- failing to follow policy, failing to read lab results, or in some instances, failing to adequately communicate, says Dr. Goldsmith and other attorneys who conduct seminars at colleges and to medical groups to educate physicians on behind-the-scenes issues of malpractice lawsuits.

"So many physicians get a false impression of what's going on in the legal community today," said Dr. Goldsmith, a partner at Goldsmith Richman & Harz, which operates offices in New Jersey and New York. "They think if they breathe wrong they're going to get sued."

Not so, he said. "Instead of acts of commission, they're acts of omission. Physicians are in a rush. There are too many cases they're trying to handle, and things fall through the cracks."

Many cases are "absolutely avoidable," said Dr. Goldsmith, who has discussed lawsuit prevention at St. Joseph's Hospital in Paterson N.J., and New York University Medical Center, among others.

For example, Dr. Goldsmith is involved with three cases against one institution in which three premature infants were not seen by an ophthalmologist within the standard four to six weeks after birth. The babies are now blind.

In another case, Dr. Goldsmith represented a breast cancer survivor who went in for regular chest x-rays. Although one test indicated a possible resurgence of cancer, the report was filed without the patient being notified, he said.

When the patient returned for another check up, the doctors asked, "What did you do about the chest x-ray?" The patient, who never knew of the test results, later died, Dr. Goldsmith said.

"This is pretty basic stuff," he said. "Lawyers don't win cases on complexities."

Records, records, records

Physicians can, for the most part, avoid subpoenas by keeping clear, accurate records, checking lab reports and adequately following up with patients.

"Have a system in your office where every report that comes in is read by someone who knows what they're doing," Dr. Goldsmith recommended.

And, "if there's a problem, don't run and hide. Communication stops litigation even if there's an error. If you communicate, document it, and never, never change a record."

Altering or destroying a chart or record is the legal kiss of death, he said, noting that his words of warning often go unheeded.

"No matter how many times you say not to change records, they [physicians] change them. It takes a winnable case and destroys it. Juries don't like liars."

When Stanley Davidson, a defense lawyer and partner with Hinshaw & Culbertson in Chicago, addresses physicians and health care workers, he stresses some of the same points highlighted by Dr. Goldsmith.

"The most important thing is keeping good medical records," Davidson said. "Keep legible, detailed, complete charts. The more you say, the better. The jury tends to believe what is charted. By the time a case goes to court years later, no one can remember everything. If it's not written, it opens the door to thinking it's made up."

Davidson, who presented, "Looking at the Medical Chart Through the Eyes of a Jury" to the National Conference of the American Society of PeriAnesthesia Nurses in April, shows actual charts used at trial, explaining how that one piece of evidence may win or lose a case.

Really talk to each other

Clear communication between physicians, nurses and patients substantially reduces the threat of legal action as well, Davidson said. Problems often arise from miscommunication when nurses phone doctors who are outside the hospital.

"Many times nurses or residents assume the attending doctor knows all the facts," he said, "and don't assume the residents or nurses tell you everything.

"If you're the attending physician, you have to act like a detective," he added. "Make sure both sides completely understand everything without any ambiguity."

Misunderstanding can arise when physicians say they will check on a patient when they arrive at the hospital. A nurse, for example, might assume the doctors will come in immediately, whereas the physician meant he or she would check on the patient during rounds.

"It's been my experience that these phone calls can cause a great deal of confusion because everyone is not on the same page," Davidson said. "We see that time and time again."

Both sides must understand the plan of action -- when the doctor should be called, when specifically the doctor will arrive, and what the doctor's orders are in the meantime, he noted.

Additionally, make sure to chart the phone call and the mutually understood game plan, Davidson advises.

Nurses and residents, for example, also should never hesitate to call the attending doctor. "I'd rather see [a nurse or resident] get yelled at rather than have a catastrophe happen," he said.

Legible handwriting is also important, said Samuel Davis, a lawyer who sues physicians and drug companies as a partner at Davis, Saperstein & Solomon in Teaneck, N.J.

Bad handwriting "creates more problems," said Davis, who teaches an introduction to legal medicine seminar called Jurisprudent Surgical Resident at Columbia University Medical School's College of Physicians and Surgeons. "We would put the doctor on the witness stand, and it makes him look sloppy."

Davis tells students to keep legible, timely dictation and records. "If it's done 60 to 90 days later, we [plaintiff attorneys] would have a field day with that," he said. "It looks like something is being concealed. You want to avoid hoisting red flags."

Most institutions require dictation of charts within 24 or 48 hours, Davis noted.

"Many physicians don't know the rules," he said. "They're busy or they don't think it's important."

When interacting with the students, Davis said, "I was surprised by the overall lack of knowledge on medical legal practices. They pick up their understanding by watching television -- 'ER' or 'Scrubs.' That just doesn't work anymore."

Mock trial lessons

During his course, Davis holds a mock trial and stresses three key points: never alter records, no matter how small the detail; disclose medical errors to patients; and maintain positive lines of communication with patients.

"If you don't talk to patients, patients are going to talk to a lawyer," he said. Discussing a medical error with a patient does not increase the likelihood of being sued, and it decreases the severity of a claim.

Edward Requenez, a second-year medical student at Columbia, found the seminar and advice from Davis helpful.

"It brought the liability issues to the surface of a medical student's thinking," he said. "The more you know about any given process, the less fear there is.

"It was educating us about what medicine is as a job," said Requenez, who served as a jury member in the mock trial. "I wish there were more classes about how to manage and run a practice, ones that look at the practical side of medicine."

Ronald Drusin, MD, Columbia University Medical School's associate dean for education, said Davis' seminar provides valuable insight for students and beginning physicians on their legal responsibilities to both patients and society.

"It gives them a chance to interact with a malpractice attorney and ask questions related to medicine and law," Drusin said.

Dr. Goldsmith points out that the number of medical liability claims has decreased in New Jersey. However, the number of overall lawsuits nationally has remained stable, said Dax Gonzalez, spokesperson for the Physician Insurers Assn. of America. While the number of small payout suits, such as those less than $100,000, has dropped from about 75% of suits in 1985 to 32% in 2003, the number of top-dollar suits, such as those at or more than $1 million, has doubled in the past four years, he said.

Gonzalez says plaintiff attorneys may be more selective in deciding where the money is and avoiding smaller claims that involve proving negligence.

"The cost of litigation is high, and lawyers are more sophisticated about what is or is not malpractice," Dr. Goldsmith said.

For example, of the 40 or so referrals Goldsmith receives per month, he obtains records for between five and 10 cases and usually takes on one to two cases per month.

"They've got to be clear and overt cases," he said.

Despite the repetitive nature of the discussions, physician attendees' interest in the subject is unwavering, he said.

"We have never given a presentation [to physicians] without any questions at the end," he said. "And it's not just one or two, it's several. You can hardly get out of the room. Obviously the topic is of great interest to physicians and they want to learn more."

In May, Davidson presented a seminar titled, "Pediatric Risk Management: It's Not Child's Play," along with a pediatrician, both of whom stressed some of the same tips regarding record-keeping and communication. "It's amazing how many things we were repeating," Davidson said.

At the May conference, about 25 people stood up with questions, Davidson said. "We had to leave the room so they could clear out for lunch."

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Altered state

Experts agree that physicians should never alter medical records. If altered, the records likely will trigger a ruling against the physician in a lawsuit.

But what if there is a typographical error from the dictation? Here are a few tips from Donald J. Palmisano, MD, a past AMA president who runs Intrepid Resources, a Metairie, La.-based risk-management company, for how to handle medical record mistakes or additions.

In the case of a typo, draw a line through the error, write in the correction, date it and sign your initials. "If you have to do a correction, you don't want to scratch it out or cut it out," Dr. Palmisano said.

Never, however, add anything to a record after a suit has been filed, he said. Instead, dictate a confidential memo to your attorney, who can introduce the material in a way that doesn't allege concealment, Dr. Palmisano said.

"The medical record continues to be one of the most important elements in medical malpractice suits," he said. "It's the best witness to what happened."

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