Want to prevent lawsuit? Chart decision-making

Physicians shouldn't rely on 'code of silence'

If patients pursue litigation simply to get answers about what happened, they might be relieved to learn that no malpractice occurred. One widow told David R. Barry Jr., JD, an attorney with Corboy & Demetrio in Chicago, "I'm just glad to know my husband didn't die because someone was asleep at the switch."

"What people often don't realize is that firms like ours protect physicians whose care is reasonable from litigation way more than we sue people," says Barry. "For every lawsuit I file, I probably protect 25 doctors from getting sued."

If the plaintiff's expert sees a clear explanation documented contemporaneously with the event, he or she is much more likely to conclude that no malpractice occurred, Barry explains. "The cases that get litigated for a year or two before a plaintiff dismisses it are those where the records are misleading. There is no way for the attorney and his experts to know an explanation for the problem without discovery," he says. "If the doctor is forthcoming with the patient, all that can be avoided."

If a procedure goes awry or a problem occurs with a treatment modality, document why you did what you did, and why you thought what you thought, advises Barry. "The audience you are writing that for is potentially a plaintiff attorney, who then sends it out to an expert," he explains. "Someone is going to be looking at those records to determine if a lawsuit ought to be filed."

Physicians also can add contemporaneous documentation to the chart if he or she subsequently speaks to the patient. "If you have a conversation, you can put in, 'Mrs. Smith called and asked for her records. She said XYZ,'" he says. "All you are describing is what happened that day."

Be forthcoming

If an unanticipated outcome occurs and physicians fail to communicate with the patient, they are "at the mercy of comments that subsequent treaters will make," Barry says. "While not actually meaning to stoke the fire, they will say something that translates to the patient that something was done wrong and it shouldn't have happened."

If a patient tells you he or she is going to consult a lawyer, Barry says not to give the impression you aren't being forthcoming. "The old code of silence that used to exist when things go wrong is the surest ticket to litigation," he warns. "The more candid you are, the less likely they will end up suing you to find out what happened."

Physicians might not be able to clearly explain why things didn't turn out well, however, because they aren't sure themselves. "There is nothing wrong with communicating that, as long as you do it in the context of, 'I did things the way I always do them, and we ended up with this outcome, and I don't know why,'" says Barry. If more information comes to light to explain the bad outcome, Barry says to call the patient and tell him or her what you learned.

"If you do end up getting sued, those types of statements bolster your defense," he adds. "When the plaintiff is deposed and says the doctor told them exactly the same thing the doctor is going to say in front of a jury, that type of consistency lends credibility to the doctor." (See stories on responding to threatened litigation, and discussing litigation with others, below.)


For more information about how documentation can prevent litigation, contact:

  • David R. Barry Jr., JD, Corboy & Demetrio, Chicago. Phone: (312) 346-3191. Fax: (312) 346-5562. Email: drb@corboydemetrio.com.
  • Andrew S. Garson, JD, Garson DeCorato & Cohen, New York, NY. Phone: (212) 742-8700 Ext. 222. Fax: (212) 742-1471. Email: garson@nygdc.com.

Is there a direct threat to sue? Take these steps

Chart accuracy of 'utmost importance'

I'm going to sue you." If a physician hears words to this effect, "the patient or family should be advised that in light of this statement, which is a very direct threat, the physician-patient relationship and mutuality of trust and confidence has been breached," according to Andrew S. Garson, JD, a partner with Garson DeCorato & Cohen in New York, NY.

Accordingly, the patient should seek another caregiver, and the physician should offer names of several colleagues who are recognized specialists, says Garson.

"All of this must be accurately documented, with quotations," he says. "However, it should not contain self-serving remarks, which then can be depicted as a conspiratorial cover-up."

The chart and its accuracy is now "of the utmost importance," says Garson. He has seen situations in which the physician or the office sends a chart to a patient or attorney, or even an insurance provider, and does not make a complete and accurate copy for the physician's later reference. "Then a lawsuit is filed, and the version of the defendant physician's chart is at variance from the earlier copy given to the patient," says Garson. "This results in a multitude of problems for a physician."

If the physician intentionally is destroying or hiding evidence, there can be professional ethical or misconduct charges, the malpractice liability insurance carrier can disclaim coverage, and there can be consideration of a criminal prosecution, he says.

"The potential for a defense on the merits of the medical care rendered is nil," underscores Garson. "This has even occurred in cases where the medical care is proper, but the chart is tampered with."

'Loose lips' will only help the other side

Don't discuss your legal case with others

It's not hard to understand why a physician defendant might complain about the case to a colleague in the privacy of the doctor's lounge. "But that doesn't make it a good idea," says Joseph P. McMenamin, MD, JD, FCLM, a partner at Richmond, VA-based McGuire Woods and a former practicing emergency physician.

Don't discuss the situation with anyone except individuals with whom you have a privileged relationship, which includes your attorney, your spouse, your doctor if it relates to your medical care, and your clergyman, he advises. "With the exception of those particular individuals, nothing else is privileged, generally speaking," says McMenamin.

If you engage in dialogue about the case with someone else and the plaintiff's attorney learns about it, that individual might be deposed. "The other party might suddenly find that he is a witness, which is not something he envisioned," he says. "You may not be doing your friend a favor by disclosing all this information about the case. You might convert him into a witness."

Even if you speak about the case at a support group for physicians named in lawsuits, this isn't necessarily privileged. "If it's run by a psychiatrist or a psychologist, maybe you could come up with a patient privilege theory to keep it out of the hands of the other side," he says. "While you might win, I would rather not have to fight that battle. The risk is smaller if your communication is solely with the treating professional."

You might add witness

When a physician gives the name of the person he or she spoke with about the case, that person is likely to be deposed, and the testimony unexpectedly could hurt the defense, says George B. Breen, JD, an attorney at Epstein Becker Green in Washington DC.

"You have now added a fact witness who may have a recollection that is different from yours," he says. "A colleague may say, 'I don't remember saying that.' It doesn't mean he didn't say it. It simply means he doesn't recall it, but you end up battling a negative."

After learning a patient has filed a claim, a physician probably will want to review the facts of the care provided. However, be sure that any investigation done of your care is done at the specific and express direction of your attorney, Breen advises, as "you can then have the comfort of knowing your efforts are going to be protected as privileged."