Malpractice Lawsuits: Prevention, Initial Handling, and Physician Concerns

CHAPTER 3 Malpractice Lawsuits: Prevention, Initial Handling, and Physician Concerns



S. Sandy Sanbar, M.D., Ph.D., J.D., F.C.L.M.




GOLDEN RULES



1. Build malpractice-proof shelters to survive the most predictable, yet least anticipated events in the life of any physician.

2. Shelter and protect personal assets.

3. Practice immaculate risk management and quality assurance.

4. Avoid the element of surprise by preparing for possible malpractice litigation before it occurs.

5. Physicians should have faith in themselves, their families, and all others who help them.

Shelters are built to prevent destruction from natural and unnatural catastrophic events, such as hurricanes, tornados, earthquakes, and wars. By the same token, a medical malpractice lawsuit could potentially be very damaging. Just as we build shelters for sundry disasters, every practicing physician should build a malpractice-proof shelter that can withstand the highest category of malpractice lawsuits. Coupled with the shelter, a detailed proactive plan of action must be in place to deal with the onslaught of a malpractice lawsuit. This chapter attempts to provide the potential defendant doctor with the materials needed to build a malpractice-proof shelter, and some recommendations for a plan of action.




CASE PRESENTATION


For the purposes of this chapter, the facts and circumstances surrounding the case in the preceding chapter on medical malpractice stress syndrome are applicable.



MALPRACTICE CLAIMS PREVENTION


Practicing good medicine, in and of itself, is not a guarantee that a physician will avoid being hit with a medical malpractice lawsuit. “To err is human,” and physicians do make mistakes. The multidisciplinary medical practice poses a compounding effect on medical errors, particularly because of the tough choices that are made by a number of physicians involved in the care of the patient. And bad outcomes may result even with the best of medical care, which may lead to frustrated, dissatisfied, and disgruntled patients.


The physician should therefore build a variety of “shelters” aimed at minimizing the risk of malpractice, handling dissatisfied patients, protecting one’s assets, and dealing with being hit by a medical malpractice claim.



MALPRACTICE SHELTER CONSTRUCTION


One of the building materials used for the construction of the malpractice-proof shelter is made of a special kind of “steel and concrete” commonly known as product “RM-QA,” short for the durable mix of Risk Management and Quality Assurance.


Risk management centers on patient injury prevention. Risk management can be seen to be a response by the medical and health care professions to the medical malpractice crisis. It is aimed at reducing and preventing injuries from medical malpractice, and other errors or deficiencies in clinic and facility operations, and minimizing the legal consequences of those injuries.


Risk management can be defined as “the process of attempting to identify and reduce or manage incipient risk of injury to patients in the clinic, hospital or any medical care setting.” Risk management is prospective in outlook. Problems in the delivery of health care are often multifaceted in nature, and the solutions to the problems must correspondingly be interdisciplinary. That is why several “columns of RM” are used to build a shelter to withstand malpractice.


Quality assurance is distinct from risk management, although quality assurance activities may supplement risk management techniques. Quality assurance is retrospective in its approach to medical problems. It emphasizes review after patient injury, and evaluation of trends in patient injury, and focuses on a cumulative, rather than an individual, standard to measure health care.


For example, consider the hospital setting. After the Darling case (Darling v. Charleston Community Hospital, 312 N.E. 2d 614 (Ill., 1965), hospital liability for professional acts of its employees, in addition to its traditional liability, has continued to increase in scope. An examination of subsequent landmark court decisions establishes a number of duties or standards that a modern hospital owes to its patients: exercising reasonable care in providing proper medical equipment, supplies, food, and other support to its patients; providing safe physical premises; establishing effective procedures to provide prompt and accurate diagnosis and treatment of patient injury and illness; adopting internal policies to protect the safety and interest of patients; exercising reasonable care and guaranteeing adequate care; exercising reasonable care in the selection and retention of hospital employees, and the granting, continuance, and renewal of staff privileges for staff physicians; establishing correct procedures for record keeping and review of incidents; and providing for effective organization of department procedures.



RISK MANAGEMENT BY NONPHYSICIAN STAFF


Allied health care professionals share the responsibility of ensuring that the duty owed to patients is appropriately carried out by the clinic or facility department. As the primary health care provider of patient care, nursing personnel are often the most capable of establishing, continuing, and evaluating systems for risk management and quality assurance. Nurses are also the primary source of data from which programs are developed. Cooperation of nursing personnel in clinics or hospitals therefore is essential in the developing and maintenance of a risk management or quality assurance program.


Nursing personnel are aware of the need to notify risk management of an injury, incident, or an unusual occurrence. Such reporting normally takes the form of an “incident report.” Comments on the incident report provide a description of the incident, and corrective measures taken, and note the result or effect on the individual patient. The fact of an incident report is not generally noted in the patient’s records. An incident report is classified as a legal document. By use of good observation and prompt documentation of observations, necessary information to aid in improving patient care and protecting the physician’s interests is maintained.


Risk management and quality assurance activities may urge clinic and hospital personnel to be careful to follow standard rules for record keeping. This would require personnel to: record promptly observations and actions on paper or computer; write legibly; record when a report is made of medical problems; never erase a section of a patient’s records to correct mistakes; document all therapy orders or specific instructions; and record performance of assigned tasks.



INCIDENT REPORT


Incident reports, and other clinic and hospital data, such as audit and pathology committee reports, can lead to better understanding of patient mishaps. Plans for prevention or reduction of further occurrences can be created, and future inservice needs on the part of the clinic or hospital staff can be identified.


Risk management programs in the nursing setting recognize that the majority of successful suits against nurses involve a pattern of risk situations: administration of medication, assisting in surgical suite, falls, burns, electric shocks, faulty equipment, nosocomial infection, mistaken identity, or misinterpretation of signs or symptoms. The largest percentage of patient incidents occurs between the hours of 8:00 a.m. and 11:00 a.m., the busiest time of the hospital. Special problems of particular clinics and institutions are also to be considered and identified, and action taken to reduce those inherent risks. For example, a geriatric orthopedic facility will have more risk associated with patient injury due to falling than would a typical medical-surgical floor.



RISK MANAGER


The risk manager plays an essential role in cementing the “RM columns.” The risk manager assists the physician in developing plans to deal with a variety of risks, including, for example, methods for classifying medication errors by type by computer data management, and recording of error rates by individuals. These plans are useful tools for improving performance of health care providers, and reducing the risk to patients within the medical or hospital setting.



FEAR NOT AUTOPSIES


One of the most important but underused methods of quality assurance is the autopsy. An apprehensive health care provider might expect an increase in the number of autopsies performed to result in a higher level of liability of the physician and hospital. This has not proved to be the case. Rather, pathologists recognize that findings at autopsy in the majority of cases reduce the risk of loss, rather than result in a greater exposure to liability. Pathologists have estimated that over 40% of death certificates would be inaccurate when compared with autopsy findings. Moreover, the information obtained by autopsy can assist the family by alleviating possible doubts, guilt, or grief resulting from misunderstanding about the cause of death. Autopsy is not only useful in providing diagnostic or therapeutic feedback, explanation, detection of safety and occupational hazard, and contributing to continuing education of clinical physicians, but also in clarifying the cause of death in a wrongful death action.



INJURY CONTROL


Essential to the concepts of risk management and quality assurance is problem identification, followed by measures to ensure that risk to patients or staff will not recur. The most important component of risk management program is staff education. Such a program involves: identifying patterns of incidents, patient injuries, or undesired results; determining specific errors that may contribute to those injuries; evaluating potential problem areas to determine alternatives to decrease the risk or hazard to the patient; evaluating changes in procedures or techniques that might decrease patient risk; and implementing such new procedures or techniques.


Supervision of injury control is usually done through safety officers. The risk manager and quality assurance individual, or respective committees in a hospital setting, supervise all aspects of quality assurance and risk management and can fully integrate the data obtained and implement effective inservice continuing education for health care practitioners. Such education focuses not only on the lines of communication and responsibility concerning risk management or quality assurance, but also emphasizes the need to modify the behavior of the health care practitioner, particularly techniques and conduct during patient contact.


Most malpractice claims involve cases where a poor relationship between the health care practitioner and the patient exists, and a poor outcome results from treatment. A number of potential sources of professional and hospital liability can be eliminated or reduced by careful attention to the health care practitioner–patient relationship, and heightened attention to controllable patient risk.


With physicians and hospitals treating increasing numbers of patients, caring for higher risk patients, and employing more complicated procedures and innovative techniques, the possibilities for human error are compounded. Risk management and quality assurance are directed to delivering the highest possible level of health care to the individual patient, and also to reducing the potential of occurrences that result in liability of the health care provider for improper or negligent treatment.

Related posts:

  1. Medical Malpractice Stress Syndrome
  2. Liability in Clinical Trials Research
  3. Miscellaneous Torts
  4. Neonatology and Pediatrics

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Mar 25, 2017 | Posted by in GENERAL & FAMILY MEDICINE | Comments Off on Malpractice Lawsuits: Prevention, Initial Handling, and Physician Concerns

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