Saturday, January 15, 2005

Five Key Steps To Avoid Malpractice Suits

An interesting issue of Anesthesiology News has a great article on avoiding malpractice suits. It can be accessed at by searching for the January 2003 issue. Here is the text of the article, which is presented here in full because no direct link to the article is available (one of the drawbacks of "frames").

Want To Avoid Getting Sued?

Five Key Steps To Avoid Malpractice Suits

Cynics will tell you that the only way to avoid being named in a future medical malpractice suit is to retire now. Nothing could be further from the truth. Although there are no surefire techniques to guarantee that you will never see the inside of a courtroom, there are concrete steps any practitioner can take to decrease the possibility of being named in a suit. Having represented physicians and hospitals in medical malpractice suits in the New York metropolitan area for 20 years, I can tell you what works from firsthand experience.

There is no better substitute for avoiding malpractice suits than a good bedside manner and taking the time to communicate with your patients. Consider the case of a poor surgical outcome. Surgery is replete with risks and complications beyond a physician’s control. Patient expectations are often unrealistic. When a poor result occurs, far too often physicians become unavailable or delegate the responsibility of giving bad news to their subordinates. Such actions only feed a perception that the physician’s unavailability is an attempt to hide or–even worse–cover up something. In a litigious society, some conclude that the next step should be a trip to a plaintiff attorney’s office.

You must be available to the patient or patient’s family to discuss any poor surgical outcome. Hopefully, you have already had a good discussion of informed consent. Spend whatever time is needed to discuss the complication that developed. Remind the patient of your prior informed consent discussion. Take the time to sympathize with the patient or family and answer all of their questions. A timely, well—thought-out explanation of a poor outcome will always go a long way to help avoid your inclusion in a suit.

I have defended a number of cases where a physician was not included as a party defendant despite that physician’s significant involvement. The plaintiff’s attorneys will sometimes explain that they did not sue the physician at the explicit insistence of the plaintiff or plaintiff’s family. The explanation invariably includes the plaintiff’s perception that the unnamed defendant communicated well with and really cared for the plaintiff and spent the necessary time with him or her.

Before commencing the suit, a plaintiff’s attorney will need the applicable medical records, including yours. A significant factor in determining whether to commence suit will be the information and level of documentation in those records, as well as their appearance. Common sense tells you that sparse, poor documentation that is sloppily written will only encourage suits. Understand that during a trial, poor records are blown up and presented on poster boards several feet tall for the jury–and all the world–to see. One-line summaries for an entire key interaction with the patient are grossly insufficient. Countless good physicians have appeared tortured on the stand defending poor documentation.

A physician’s time has always been at a premium, particularly in the era of managed care. Nevertheless, there is no substitute for spending the necessary time in the office or the hospital to compose or dictate a well—thought-out note. Consider again a case with a poor surgical outcome. A prospective plaintiff’s attorney can be deterred from suing for a lack of informed consent by a well-written note documenting a discussion between the physician and patient, prior to surgery, concerning the known risks, complications, and alternatives (if any) associated with the procedure in question. Juries tend to defer to such notes, if they were written before the surgery, in evaluating the testimony of a plaintiff who takes the extreme position at trial that no risks were ever discussed with him or her.

While an appropriately dated and well-written note will help deter a suit, a note obviously written after the fact nearly guarantees a suit. There are no circumstances that can justify going back to and altering, or even adding to, a contemporaneous note. No jury will ever believe a physician caught altering an office or hospital chart.

Office Policy
A good number of suits can be avoided by having a consistent office policy regarding communications. Outside correspondence to the office should be reviewed; the preferable policy is to have some documentation of the review through the placement of initials or check marks on the document. Countless suits are commenced each year in connection with misplaced adverse lab or radiological test results. As an example, if a patient has an abnormal Pap smear result, the medical office needs to have clear procedures on maintaining documentation and a clear policy on how the result should be communicated to the patient. What documentation and/or follow-up will take place after the patient is told of the abnormal result? Whatever the policy is, it must be consistently applied.

Similarly, the office must have a consistent policy for all communications with the world outside. Are telephone calls to the patient by staff members and the physician documented? Are copies of all correspondence kept? How about copies of prescriptions? There is no one correct procedure, but whatever policy is determined must be followed invariably to help you avoid being named in a suit.

Elective Surgery
Although most physicians do not have the luxury of choosing their patients, some do. Many physicians will confide in me that they knew a plaintiff was trouble the day he or she walked through the door. If a patient has unrealistic expectations despite a proper informed consent discussion, you should pause. If a patient seems to have this sort of problem, you need to seriously consider whether further surgery will help–and whether it may result in your being named in a suit. You may want to deal with these situations by insisting, at a minimum, that the patient obtain a second opinion. Your initial instinct is often your best. Should you elect to go ahead despite some reservations, all the more reason to be careful in your documentation in both the office and hospital records.

Departmental Rules
Medical malpractice is generally defined as injury to a plaintiff caused by a departure or deviation from accepted standards of medicine. There is no better "accepted standard" than a rule promulgated by a hospital. There is no better proof of a deviation from an accepted standard than evidence of your not having followed that rule. All too often, well-intentioned hospital committees pass a departmental rule that affects the accepted standard of patient treatment in that hospital department–and then keep that rule hidden in a binder somewhere in the departmental offices, without the physicians’ knowledge of its existence. In order to avoid a suit, you must take the time to obtain the rules and regulations of your hospital department. If any rule affects patient care procedures, you need to commit such a rule to memory. Anything less invites a claim that you did not follow the rules, a claim that may strongly influence a jury.

Litigation today is an occupational hazard for physicians. Hopefully, through a good bedside manner, timely communication with your patient, well-written records, and familiarity with departmental rules, you can better avoid being named as a defendant in a medical malpractice suit.

–Jeff Lawton
Mr. Lawton, a senior partner at the New York law firm of Martin, Clearwater & Bell LLP, is a trial attorney representing physician and hospital clients. He has represented physicians and teaching hospitals in high-profile cases, including Stone vs. Toth.. Mr. Lawton is a frequent lecturer on issues involving medical malpractice and risk management. He can be reached at

Medical Economics Magazine Malpractice Review

The well-known medical journal Medical Economics recently produced a multi-part review of the current medical malpractice crisis. It can be read at the URL given below:

Here are some of the titles of the series

Behind the med-mal crisis

Seeds of the crisis

Insurance reforms

Legal reforms

Medical system reforms

The will to be bold

Unethical Expert Witnesses

Here are some interesting comments from Francis J. Collini, M.D., a plastic surgeon practicing in Shavertown, Pa., who writes in Physician's News Digest about unethical "expert" witnesses. (


Lawsuits against physicians, frivolous or not, would not be filed unless one doctor is willing to testify against another doctor, under oath, for money. You won’t hear lawyers talking about this because they are afraid that doctors will catch on to this "dirty little secret" and lean on their fellow physicians to stop testifying against one another. This could put the malpractice legal system out of business or substantially reduce the number of malpractice cases. You won’t hear doctors talking publicly about this problem because many are embarrassed by their colleagues’ behavior.

Doctors who, under oath, distort medical facts and medical records for the sole purpose of making money are the fuel that sparks the fire of the malpractice crisis. And it works both ways-plaintiff and defendant. Without physicians testifying against other physicians, greedy attorneys would have no cases, judges would hear no frivolous lawsuits and juries would not have to make decisions regarding medical facts that they know little about. Try to find a lawyer who will sue another lawyer. It’s real tough. There is an unwritten law among lawyers that simply states that they will not rat on a fellow colleague. No such unwritten law exists among fellow physicians. If the price is right, some unethical physicians will sell their soul and hence, their integrity to the devil.

I was recently victorious in a medical malpractice lawsuit filed against me in Philadelphia by a patient who I operated on in Wilkes-Barre. Despite the fact that the venue laws have changed in Pennsylvania, I had to travel to Philadelphia twice daily for seven working days to fight this lawsuit. It took the jury just fifteen minutes to come to verdict in my favor.

Can I counter-sue for my time, lost wages and the fact that my malpractice insurance premiums jumped out of sight because the insurance company had to defend me in this lawsuit (to the tune of $46,000)? No! The system does not allow for this. My losses are not recognized as an injury. The system does not view the defending physician as the real victim in such cases. This is inherently unfair.

I do not blame the opposing attorney, nor do I blame the patient for filing this lawsuit. I do not even blame the judge for allowing this case to go forward. The simple truth is that this case would never have gone forward had it not been for the board certified plastic surgeon who agreed to testify against me for money. He was paid handsomely for his testimony. He distorted the medical facts of the case to create a story filled with mischaracterizations and half-truths. Fortunately, good documentation and my strong rebuttal testimony allowed the jury to see through this charade and the members found verdict in my favor.

What is the solution to the expert witness problem? One solution is for each specialty to create a panel of physicians who issue a "certificate of merit" similar to a certificate of board certification to those physicians who qualify to become an expert witness in their respective field. Those physicians who desire to obtain a "certificate of merit" as an expert witness must pass qualifying written and perhaps even oral examinations to ensure their credibility and integrity. Recertification could be done every five to 10 years. Physicians who receive a "certificate of merit" can either donate their time or receive predetermined reasonable monetary compensation for their time and expenses.

As it stands now, expert witnesses receive exorbitant fees for their testimony and this can bias their opinions of medical facts so as to suit the fancy of the attorney who is paying them. By establishing a "certificate of merit" for expert witnesses, bias and discrimination can be diminished and the number of frivolous lawsuits could drop. Furthermore, certified physician experts would maintain respect among their peers.

Monetary compensation for expert witness testimony dilutes the integrity and credibility of all physicians. It is bad for society as a whole and even worse for medicine. Physicians such as the one who testified against me are dangerous. By way of their clouded testimony, the esteem and respect that people have for physicians is damaged. As physicians, we must place ourselves above this type of denigration. It seems morally and ethically reprehensible for physicians to make part or all of their living by accepting money for expert witness testimony.

Welcome to the Medical Malpractice Blog

Who is to blame for our medical malpractice crisis? Is it the attorneys, who advertise heavily to get patients to sue doctors? Are insurance companies to blame, paying multimillion-dollar salaries to their CEOs? Are patients to blame, taken in by unreasonable expectations and by deceptive advertising from plaintiff attorneys, who see malpractice suits as a way to gain a nice jackpot? Or are doctors themselves to blame, either because they harm patients through negligance or because one doctor is willing to testify against another doctor for financial gain? Or is no-one to blame but the system itself?

These are the questions explored in this blog. Welcome.