Detail always is good. More detail always is better. That’s the rule of thumb when it comes to documentation, according to Cecilie Loidolt, JD, a medical malpractice defense attorney with Meagher & Geer in Minneapolis.
The top malpractice concerns don’t really change with the passage of time, Loidolt says, but defense attorneys learn more every year about how you can keep yourself out of trouble. Complications from surgery and childbirth, particularly brain-damaged babies and death during related to delivery, and failure-to-diagnose claims still are some of the biggest concerns for risk managers and defense attorneys, she reports.
But Loidolt says the frequency of those claims may be on the rise now because many states are enacting tort reform that could sharply restrict the payouts from those claims. Plaintiffs are rushing to get those suits in motion before the tort reform takes effect, she says.
One new trend, Loidolt says, is an increase in claims related to Cytotek, which was approved by the FDA for treating ulcers but often is used off-label for induction of labor. Another common claim is a patient suffering a known complication of surgery but claiming that he or she was never informed of that particular risk.
"So it becomes an issue of conformed consent," she says. "And it’s also a claim that the complication would not have occurred if the physician had followed accepted standards of medical practice. I probably have five cases right now involving that kind of claim."
Loidolt offers these tips for warding off those problems and other medical malpractice lawsuits:
• Push for more detailed documentation of the informed consent process. With surgery, in particular, the chart should indicate in detail what the physician discussed with the patient during the informed consent process. "I discussed the known complications and risks" is insufficient. The record should state something more like, "I discussed with the patient the risks of this procedure including injury to other organs, infection, bleeding, possibility of recurrence . . ." and so on. It’s OK for the physician to use boilerplate language in every chart for that procedure if it accurately reflects the conversation with the patient. Warn physicians that it never is enough to say, "I always discuss those things, but I don’t write down every little thing."
• Document telephone calls better. Any contact with the patient should be documented if there is any discussion regarding the care rendered. Loidolt says she often is surprised by doctors who receive calls after hours and do not document them. "Put it on a piece of paper and staple it into the chart the next day," she says. "You can indicate in the note that you took this call at home at 9 p.m. on Dec. 21. Patient complained of pain in the incisional area. She was told that if pain persists, she needs to be seen.’ That is so important because when I go try the case, I can show the documentation that this call did occur and she was told she needed to be seen. It gets past a lot of the disputes about who said what."
• Improve documentation of discharge instructions. The ideal chart will include details about what the patient was told at discharge. Again, boilerplate language is acceptable if it accurately reflects what the patient was told. But general statements such as, "The patient was provided discharge instructions," are not much help.
Early deposition is red flag
• Watch for lawsuits related to Vioxx and Celebrex. The claims against those two recalled drugs will be aimed at manufacturers first, but frontline providers can be targeted for prescribing them. The risk is much higher if the drugs were prescribed for off-label use.
• Bariatric surgery may soon produce a rash of lawsuits. The surgery involves a higher risk of complications and therefore may spawn lawsuits related to the informed consent process. With bariatric surgery, or any other high-risk surgery, risk managers should spend more time counseling the doctor on the importance of a thorough, detailed informed consent process. "Physicians may say that if they spend all that time explaining the risk of every surgery, no patient will ever consent to the procedure," she says. "But the risk with bariatric surgery is so much higher that it justifies more detail and more diligence. The riskier the procedure, the more you need to make sure you’re having a very good discussion and answering every question."
• Watch for requests to depose the defendant very early. As soon as you see that early request for deposition, a red flag should go up. The plaintiff’s attorneys probably have been researching the case for some time before the summons and complaint is served, so if they request deposition within a month, they’re probably trying to take advantage of their head start. They want to get the deposition before you have a have a chance to research the case on your side and catch up. One tactic for risk managers is to get your investigation rolling quickly. You might want to refuse to produce the defendant for the deposition if you feel that you have not had time to gather the medical records and other basic information. Don’t put the defendant doctor in the position of answering questions in a deposition before you have all the facts.
• Help physicians avoid being tricked into testifying against colleagues. It is common for plaintiff’s attorneys to seek out nontreating medical providers for supporting testimony but to then maneuver them into criticizing their colleagues. For instance, an attorney may ask a physician currently providing care to the plaintiff (but not involved in the alleged malpractice) to testify as to the patient’s condition. But once on the stand or in deposition, the doctor often is maneuvered into criticizing the defendant physician’s care. Plus, the doctor may not know yet if the plaintiff intends to include him or her in the lawsuit. So speaking too freely could be detrimental. "Risk managers can get involved and sit in when the plaintiff’s attorney wants to meet with the physician, particularly if the doctor is an employee of the hospital," she says. "At least ask them to speak with you before meeting with the plaintiff’s lawyer. Encourage them not to handle the meeting on their own."
• Warn clinicians not to hide after a bad outcome. A common complaint after a bad surgical outcome, for instance, is that the doctor never came around to discuss it, or only visited once and then wouldn’t make eye contact. That poor bedside manner seriously increases the likelihood and severity of a malpractice lawsuit. Remind physicians that, while they should not admit culpability, extending compassion and making yourself available to the patient always is a good thing. "Availability is a very big deal," Loidolt says. "It comes out during the trial that the doctor was emotionally cold and unavailable, and that can really color the way a jury sees the defendant. And patients sue the doctor they don’t know, the one who didn’t sit by the bed and tell them what happened and how much they want to help make it right."