Learn a little risk management

Expert explains why good doctors get sued

Physicians need to make increasingly difficult decisions about patient care these days. They are being asked to care for large populations of patients under managed care and risk contracts. Meanwhile, they must stay continually abreast of new technological advances, new drug regimens, and other changes in acceptable medical practice.

And all of this is occurring within an atmosphere that places patients at odds with their insurers and sometimes, even with their physicians.

So how can physician groups reduce the risk of being sued for malpractice in this evolving health care world?

The biggest answer boils down to improving patient communication, says Ross M. Miller, MD, MPH, a Los Angeles medical director of quality management and risk management for a large Southern California managed care organization (MCO). The MCO asked not to be identified.

Miller’s responsibility as medical director of quality includes reviewing all member complaints from HMO members about alleged quality-of-care deficiencies, known as member perception reports.

One of the largest categories of complaints is in the area of communication, Miller says.

Most of the time, physicians could alleviate this type of complaint, Miller says, by asking a patient a simple question at the end of the visit: "Have I answered all of your questions?" or "Is there anything else you need today?"

Communication skills are important

Physicians who have good communication skills are less likely to be sued, Miller says.

"Studies show that patients with good doctor-patient relationships, even with the same adverse outcomes occurring, have less chance of being sued," he explains.

Miller lists these three explanations as possibilities for why good physicians get sued:

• They forget or fail to recognize how patients perceive quality.

• They do not employ personal risk management strategies in daily practice.

• They get caught in system failures.

With these points in mind, Miller offers these guidelines to preventing lawsuits and other patient problems:

1. Understand what patients want.

Patients perceive quality medical care based on a variety of criteria, including how well they feel and function after visiting the provider, Miller says. (See strategies for preventing adverse outcomes, on pages 124-125.)

Does the patient feel or function better after the doctor visit? If not, then the patient may not be satisfied with the care.

For example, suppose a patient goes to the emergency department for coughing and cold-like symptoms, and the doctor diagnoses bronchitis and prescribes an antibiotic. The infection gets better, so the physician believes the patient has received the correct diagnosis and treatment.

However, the patient may still feel miserable, and unhappy with the care.

"If their ability to function in daily life isn’t better by the next day, and that’s their expectation, then they will perceive it as a poor-quality intervention," Miller says.

It’s important to make sure the patient understands how long it will take for the medication to work and alleviate the symptoms.

"The bottom line is that when you have poor physician patient communication, that can lead to complaints," Miller says.

2. Enhance communication skills.

These days, there are more opportunities for communication problems because patients no longer are treated solely by one physician or provider.

"We work in systems; the days of the solo practitioner hanging out a shingle are pretty much over," Miller says.

Now physicians work in provider groups and integrated delivery systems, so a failure can be within the system, he adds.

Physicians often feel rushed when they’re seeing their patients and this can lead to giving their patients an inadequate evaluation.

The HMO has included articles on effective communication in its provider newsletters, and the company has referred physicians to communication skills courses.

"If we notice a trend of providers having issues related to poor communication or poor quality then we may put those doctors on some type of action plan," Miller says.

An action plan might include attending a communication skills course, receiving counseling, or something as simple as having the physician change lengths of appointment times in the schedule, to allow a little more time with each patient.

The HMO places data regarding member perception reports about providers in a credentialing file. All providers are recredentialed at least every two years.

Also, Miller’s organization tracks and trends all quality-of-service issues that members have identified as problems.

Communication skills include the physician’s:

• "bedside manner," and verbal or nonverbal behavior;

• attitude about patients, such as rushing, ignoring, or being curt with patients.

3. Obtain informed consent.

Usually this should be obtained in writing. Its purpose is to inform the patient of the information that a reasonable person would want to know about a procedure before making a decision, Miller says.

Each state has its own rules about what is required as far as consent documentation, but this also is important for the physician’s own protection.

"One of the skills of risk management is to have documentation of informed patient consent," Miller says. "If patients know what might happen then they’re not surprised, and then if an adverse event occurs they’re not as angry."

Informed consents do not protect physicians from allegations of negligence, although they could reduce the chances of malpractice suit.

Physicians also should practice informed consent communication in their daily patient encounters as a good risk management practice, Miller says.

For example, when prescribing a medication, a physician might inform the patient that not all of the patients who take this medication get better.

Physicians are having a tough time right now, and that’s making them focus a lot on what they’re doing and changes in health care systems.

Although these changes have made many physicians anxious, they still need to pay close attention to basic risk management, Miller says.

4. Keep thorough documentation of patient encounters.

Documentation can be a physician’s best friend or worst enemy when it gets into the hands of lawyers, Miller says.

"Attorneys get ahold of the medical records, and a lot of times that determines whether they have a case," he explains.

To document effectively, Miller says, physicians should do the following:

• Communicate information about the care in order to give credit for what was done in the event of an adverse outcome.

• Be accurate, comprehensive, timely, legible, and objective.

• Reflect the provider’s thinking and develop an action plan.

• Be careful with subjective judgments, such as criticisms of other care and disagreements with staff.

• Avoid certain language, such as the words "accidentally" and "erroneously."

• Never use an inadequate report.

• Do not ever change the record.

5. Manage bad results.

Once an adverse outcome has occurred, there are certain strategies a physician may use to manage the situation. The provider should meet with the patient and family to answer their questions thoughtfully, Miller says.

The provider should summarize the entire situation and provide full disclosure, without accepting responsibility. This is a good opportunity to allow the patient and family to vent emotions and to provide him or her with empathy.

Finally, the provider should make sure the patient knows what will be done about the situation and how progress will be communicated.

It’s important for physicians to understand the dynamics of what a patient goes through and how to minimize the patient’s anger after something bad has occurred, Miller says.

"The bottom line is to not hide anything, but to realize that your initial reaction is to be defensive," he adds.

When physicians or other providers become defensive they may take unwise actions, such as changing a medical record or refusing to return the patient’s phone calls.

Instead, they should try to understand the whole dynamic behind a patient’s behavior and be careful not to do or say anything that might sabotage the chance of preventing a lawsuit, Miller says.

"Make sure you receive some guidance and advice either from your insurance company or a risk manager or legal contact about what to say and whom to say it to," Miller says.