EXECUTIVE SUMMARY

Common mistakes can complicate the defense of a medical malpractice case. Some of the mistakes occur before the lawsuit is filed, and some after.

  • Take extra care to document adverse events.
  • Avoid altering documents in hopes of improving the defense.
  • Control how physicians communicate with family and patients regarding a lawsuit.

A medical malpractice claim is never a walk in the park, but there are ways to make the experience worse and ways to make it better. Becoming aware of some of the most common missteps can help risk managers make the best of a difficult situation.

Poor decisions can change the course of malpractice litigation, says Roger Harris, JD, partner with Swift Currie in Atlanta.

“I’ve had cases that were very defensible on the front end, but then something happens during the course of the litigation that changes the dynamics,” Harris says.

One of the biggest mistakes that healthcare organizations make in medical malpractice cases is going back into the medical record to change information, Harris says.

“I don’t want clients altering the medical record at any time, but I’ve been in situations where once the lawsuit was filed and served, someone decides they need to go back and amend the medical record,” Harris says. “There are legal ways to amend the medical record, but that does not involve going back once you’ve seen the claims in the allegation and trying to cover yourself. I’ve seen that, and it never turns out well.”

A good practice is to immediately lock down the chart when a lawsuit is served, Harris says. Any attempt to alter the chart at that point is foolish because, particularly with electronic charts, it is easy to see when a chart was altered, how, and by whom.

“I tell clients that I do not want to see an audit trail that shows them going back into the chart after the lawsuit is filed, even if they don’t change anything,” Harris says. “Most plaintiffs are not going to continue seeing the physician once a lawsuit is filed, so there is no good reason to enter that chart again.”

Risk managers also must be on alert for physicians who want to reach out to patients and talk them out of the lawsuit, Harris says. Communication between the physician and the patient or family can be appropriate and beneficial, including expressions of remorse, but Harris says that does not extend to the physician trying to talk them out of suing. That especially is true once the lawsuit is in motion, he says. Harris tells defendant physicians not to contact a plaintiff once the lawsuit has been filed.

“Once the lawsuit has been filed and served, physicians may want to reach out and try to stop it immediately, but that can become a mistake,” Harris says.

Those mistakes may happen infrequently, but the effect on a case can be quite serious, he says. Like much of what risk managers deal with, this can be about stopping something that is both infrequent and potentially costly, Harris says.

Some of the most damaging errors can occur after the clinicians know there is a substantial risk of a malpractice lawsuit but before the lawsuit is filed, notes Carol Michel, JD, partner with Weinberg Wheeler in Atlanta. There can be situations in which everyone involved knows there is potential for an adverse outcome that could lead to a lawsuit. That should prompt the healthcare professionals to begin managing that potential litigation right away, she says.

Unfortunately, the stress of the moment can make that difficult, she says. Michel recalls a case involving neonatal resuscitation in which the clinicians worked relentlessly to save the child but could not.

“It was understandable that after the resuscitation everyone was tired and wiped out, emotionally drained, but they didn’t put the necessary time into documenting what had occurred,” Michel says. “The documentation was wildly inaccurate and, as it was documented, suggested that the team had not comported with the standard of care.”

That case was saved by the father’s videotape of the birth and resuscitation, which captured the team adhering to the standard of care. That was an unusual case in which there happened to be video evidence disproving the clinical team’s own documentation suggesting inadequate care, Michel says.

“Absent that video, the team couldn’t recall specifically after the fact at what minute they gave another dose of epinephrine or another dose of bicarb. Without that video, we would have been sunk,” she says. “Particularly when there has been a significant event, take the time to gather everyone and get the documentation right. Make sure it is thorough and doesn’t conflict with other documentation in the record, that it doesn’t create a false impression of what occurred.”

Michel emphasizes the need for good communication with patients and family members after such an event. Once a lawsuit is filed, direct communication is forbidden. But after a significant event, good communication can help avoid the lawsuit, she says.

“I’ve had cases where something bad happens and everyone disappears because no one wants to be the one who delivers the negative information to the patient or family. It creates a lot of concern, mistrust, and anxiety on the part of the family and patients,” Michel says. “I’ve had cases where one person was not sued because they were the one that sat down and held hands with the family, cried with the family, and showed compassion. They were the ones who stepped up to the plate and talked to the family when no one else would.”

Disorganization is another common error with malpractice litigation management, says Jeff Kerr, JD, a former litigator and the CEO of the fact management company CaseFleet in Atlanta. He advises attorneys and serves as an expert witness related to discovery and management of facts in cases, such as how to preserve key information and avoid mistakes that lead to weaker cases or spoliation charges.

“Disorganization sort of feeds all the other problems that can come up along the way, like not knowing what documents are relevant, not knowing what documents to look for and preserve, and failing to understand the timeline,” Kerr says. “Even before the lawsuit is filed, an organized record can help you anticipate what kinds of claims might be made or where there might be negligence.”

A chronology of events is crucial, Kerr says. “Never underestimate the value of having chronology, right down to the second whenever possible. Knowing the chronology will tell you what documents are important and keep everything tied to the facts of the case,” Kerr says.

SOURCES

  • Roger Harris, Partner, Swift Currie, Atlanta. Phone: (404) 888-6175. Email: roger.harris@swiftcurrie.com.
  • Jeff Kerr, JD, CEO, CaseFleet, Atlanta. Phone: (800) 968-3994.
  • Carol Michel, JD, Partner, Weinberg Wheeler, Atlanta. Phone: (404) 832-9510. Email: cmichel@wwhgd.com.