There are two things healthcare professionals can do to position themselves for a good defense in case of a malpractice lawsuit.
First, do not promise patients success or even imply it, says Brett Timmons, JD, senior attorney with Sargent Law in Dallas.
Avoid declarative statements in hospital policies and avoid expressions such as “to guarantee,” “to make sure,” or “we ensure,” because those words can be taken by the other side and thrown in the defendant’s face during a lawsuit, Timmons says.
Also, be careful when creating policies and procedures. They should be clear and specific, but without pinning clinicians to specific requirements that might not be realistic in day-to-day patient care.
“Draft policies in the form of guidelines that layout concerns. For example, use words such as ‘here is what to look for.’ Policies that rely on corporate jargon are begging for nightmares,” Timmons says. “Write policies to reflect reality. Don’t start a case behind a policy that is vague and declarative.”
At the same time, do not enact a documentation policy that requires the provider to be fastidious, he says. Make sure the policy includes general guidelines of what is expected of practitioners.
“One more point to consider is to be consistent with documentation. One of the biggest allegations in malpractice lawsuits is that documentation does not accurately reflect the actions of the caregiver.” Timmons says. “When a practitioner’s documentation suddenly changes in tone, details, or frequency several days into care, it can give the impression of a cover-up of something that has gone against established protocols. Practitioners should stick to what they normally practice, perform well, and be consistent. Don’t change how you practice for fear of a lawsuit.”