Medical Malpractice Lawsuits Sometimes Come When They Are Least Expected

According to the American Medical Association, more than 42% of physicians have been sued for medical malpractice over their careers, and more than 20% were sued at least twice.  What causes medical malpractice lawsuits, and how can they be prevented?

Most physicians are taken by surprise when they received a summons alleging that their negligence had injured or killed a patient. Most assume that although the patient was injured they would not be sued.  Other might have lost the patient in follow-up and had no idea that anything was wrong until they were sued.  In other cases, physician who are sued might not have even seen the patient.  Rather, they may have been consulted in a brief phone call.

In other instances, physicians who were surprised by a lawsuit should have seen it coming. They missed that in the context of an unexpected adverse health outcome, their patient was unhappy.  Many are oblivious to how patients were lost in follow-up or how their own behavior may have provoked the lawsuit.

When lawsuits are filed, in order to preserve the statute of limitations, attorneys often use a shotgun approach and sue every health professional who appears in the medical record.  When physicians are served they cannot understand why, since they had such a tangential role in the patient's care.  Typically, defendants in tangential situations who had nothing or little to do with a patient's injury are dismissed from the case, but the process could take months if not years.

Poor follow-up is a common cause of negligence leading to a malpractice lawsuit.  After a procedure some doctors do not pay attention to the patient's complaints.  An frustrated patient might switch doctors, and when the injury is disclosed and diagnosed some weeks or months later, the patient often sues the first doctor.  Likewise, a patient seen in the office for something as common as a developing abscess must be regularly followed.  If not, a certain percentage of these patients will develop serious problems including cellulitis or sepsis, and the delay in recognition and treatment could result in serious, sometimes catastrophic outcomes. 

To avoid all of this, physician should make sure that their follow-up for procedures lasts beyond the first few weeks. It should be part of the physician's duties to continue to check with patients for a longer period of time.  This applies to general office practice as well.

Another sandtrap for a physician is when more than one physician is involved in a patient's treatment.  Patients can fall through the cracks when each physician believes that the other physician is managing crucial aspects of the patient's case, when this turns out to be a  false assumption.  If the patient suffers an injury he might decide to sue. Lack of communication and mix-ups can cause lawsuits. 

Another physician failing has to do with lab testing.  If a physician orders a test and it's not normal, he must follow up with the patient. The primary doctor might, erroneously, assume that the the lab or imaging center would contact the patient about results and further testing. This rarely happens.  A physician must follow-up to be sure that a patient is aware of the lab or xray results and has decided to get follow-up and perhaps additional testing.  

Problems can occur when emergency physicians while admitting patients to the hospital fail to convey important information about the patient to the admitting hospitalist.  Let's say, for example, that the patient had an untoward reaction to a medication while in the emergency room, but this is not communicated to the admitting physician-the hospitalist.  This could result in the patient receiving the same medication again which would produce another untoward reaction.  

Pending tests are another problem. The patient may be discharged, but it can take a few days for the lab to report findings. So if a wound culture is done, the culture might not come back as positive for several days.  The primary care physician must follow-up on these tests, or the information must be send to him for review. 

Patient's  usually have high expectations, and often can be very demanding.  Managing their expectations is a vital part of good medical practice.  For example, when giving informed consent, a physician might spend a little additional time letting the patient know that a particular complication is possible, but that it is an inherent risk of that particular procedure.  If this were not discussed, the patient might remain under the mistaken impression that an adverse outcome is prima facie evidence of medical malpractice, when really it is only a maloccurence, a bad outcome that could have occurred under the best of circumstances in the best of hands.  Patients with unrealistic expectations are more likely to sue if there's less than an optimal outcome.

Good medical practice consists in the physician disclosing the risks, benefits, and alternatives, including the option of doing nothing.  For example, colonic perforation is a known, and not uncommon complication of colonoscopy, but most patients aren't aware that it occurs.  Because most patients are not aware of this complication it behooves the gastroenterologist to take the time to discuss this possibility with his patient.  Many of these perforation lawsuits would never exist if physicians spent more time on the informed consent process.  This process requires a discussion about what a reasonably prudent physician in the same specialty would disclose. 

Informed consent forms can't take the place of a true well-documented discussion, but wording on the form can help prevent lawsuits.  Any consent form should include language which says that the patient has been given the opportunity and time to ask all of their questions and that the physician has answered those questions to the patient's satisfaction.

Physicians sometimes make too many promises.  It is unwise to guarantee results, outcomes, and cures.  When an adverse event occurs patients react strongly when guarantees have been given by the physician.  And it could be construed as a binding contract, especially if the physician advertises his services.  If a physician is sued for breach of contract rather than medical malpractice, the insurance company might not cover the incident.

It is also wise for a physician to take the time to not only explain matters to the patient,  but also to the patient's family.  Taking the time to do this will mitigate against any bad results or outcomes.  Families, when present, should always be brought into the discussion.

Lastly, physicians, when under stress, sometime treat patients harshly or rudely.  Snapping at a patient increases the probability that in the face of a bad outcome the patient will sue.  Insensitivity is directly proportionate to malpractice risk.  If a physician has a bad day and treats a patient badly, it would be wise and prudent to find the time to apologize to the patient, and offer to spend more time answering his or her questions.

On the other hand, while it is always appropriate to apologize for losing one's temper, it may not be appropriate for a physician to apologize for a bad outcome without first consulting his attorney or insurance carrier.

Despite the aforementioned high rates of medical malpractice litigation, most claims, about two thirds, are dropped or dismissed, and physicians prevail about 90% of the time in cases that go to trial, studies show. Although getting sued is inevitable for so many physician, research has demonstrated that the most propitious way to avoid lawsuits is through clearer communication with patients and colleagues, extra attention to follow-up care, and a sensitive and empathetic bedside manner that encourages patients and their families to ask questions.

Copyright © 2020 - & Dr. Barry Gustin