75% of doctors, especially primary care physicians, are at risk of being sued by a patient as part of the profession during their careers per a study by University of Southern California, Harvard University and the RAND Corporation. The New York City-based attorney Michael Ellenberg, JD, provided the following tips to reduce lawsuit risks, and increase the odds of a favorable outcome when sued:
- Be aware of everyday interactions with a patient in medical practices.
- Document everything, including conversations. Add an extra note to a patient’s chart after a visit. When a doctor does not put something in a patient’s charts, the juror will interpret the missing record as the doctor not having done it. When a doctor relies on memory, they increase the risk of losing in court when sued. When something is wrongly entered, a doctor should include an addendum, not delete or modify the existing record. Altering an existing record raises suspicions with fact finders in litigation.
- Be transparent with patients. Increase patients’ active engagement in decision-making by facilitating a line of open communication on the medical records. Communicate test results, follow up on referrals, provide documentation to a consulting doctor. Sharing entries in a patient’s records in person or through an online patient portal promotes an active doctor-patient relationship. Sharing entries forces a doctor to be careful in using objective language, such as direct quotes from patients when they are upset, when describing patient interactions.
- Show empathy when something goes wrong instead of fearing the consequences of apologies. When a doctor hesitates to discuss errors, frustrated patients may end up filing a lawsuit. In the U.S., there are 36 states with apology laws that prohibit using a doctor’s apology to patients or close relatives against them in litigation. Seek guidance from a medical director, hospital risk management department, or insurance carrier on how to use compassion to reduce liability.
- Study office workflow and staffing to improve processes such electronic health records (EHRs). Do not rush electronic health record (EHR) screens. Patients and jurors may hold primary care doctors responsible for managing a patient’s information. Have systems in place to check human errors when staff use templates, rely on computer-assisted documentation. When using automated systems, be aware of drop-down menu selection errors. These errors are a common problem because a person may accidentally select an item on a menu. Even when a person corrects the issue once noticed, the information may be transmitted to other parts of the health record and remain there. Another doctor pulls up a different part of the record and acts on incorrect information. Have visible notes on inadvertent medical errors and inform downstream users of records. Do not ignore alerts when prescribing medications. A doctor may end up in court for missed dosing errors or side effects.
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