While anyone can go to a plaintiff's attorney for what they perceive as a poor outcome, keep in mind that for a malpractice claim to survive, all four elements of negligence must be met, says Jan Kleinhesselink, RN, CPHQ, co-owner of Yin Yang Medical Services, a Nebraska-based provider of risk management services. These elements are: duty, breach of that duty, causation, and damages.
These elements are demonstrated in the following hypothetical case: A seemingly healthy 41-year-old female presents to a hospital emergency department with shortness of breath and right side pleuritic pain. The patient states that she thinks she pulled a muscle while working out that morning.
After running standard lab tests and a chest X-ray, all of which resulted in normal values, the patient was discharged to home with a muscle strain. The patient later was found dead of a pulmonary emboli (PE).
Here is how the elements were met in this case:
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Duty: In this case, says Kleinhesselink, the emergency physician had a duty to evaluate and stabilize the patient.
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Breach of duty: "Since the patient didn't meet the normal profile for a PE, the physician failed to obtain a D-dimer and a CT scan," Kleinhesselink says. The plaintiff's attorney could argue that the duty was breached, based on the standard of care as presented as evidence through expert witnesses and as best practices identified by emergency medicine organizations.
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Causation: The plaintiff could argue that failure to obtain the additional tests to achieve a definitive diagnosis was the proximate cause of the patient's death. "Depending on the state, punitive damages could be awarded," says Kleinhesselink.
Risk reduction strategies
As a physician, there are two key ways to reduce your risk for a malpractice claim, says Carmen Lester, RN, JD, CPHRM, co-owner of Yin Yang Medical Services: Documentation and clear communication. She recommends these practices:
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Documentation should be objective, specific, compete, legible, authenticated, dated, and timed.
"Electronic health records assist in achieving these requirements," says Lester.
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The medical record should include patient history, assessments, diagnoses, patient progress, the reason for and results of diagnostic testing, the patient's response to treatment, any changes in interventions, patient non-compliance, and a plan of care until the next encounter.
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Communication with the patient and family needs to be upfront, sincere, and continued throughout the course of the doctor/patient relationship.
"Keep in mind that the natural tendency after an adverse outcome is avoidance," says Lester. "This only makes the patient and family feel isolated, helpless, and angry — which is when attorneys are contacted."
