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Special Report
According to the Physician Insurers Association of America (PIAA)1, family physicians (FPs) and general practitioners (GPs), internists and obstetrician-gynecologists are the specialties sued most often. Between 1985 and 1998, 14% of the claims against primary care specialists reported to the PIAA's Data Sharing Project had indemnity payments to claimants of at least $250,000. "Errors in diagnosis" topped the list of allegations, followed by "improper performance," "medication errors," and "failure to supervise or monitor care." Diagnostic errors occurred most frequently in cases involving cancer (breast, bronchus, colorectal and lung) and heart disease.
Policyholders can contact MIEC's Loss Prevention Department for information about allegations
and payments in malpractice claims against physicians in their specialty. |
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While a majority of malpractice claims against physicians in all specialties involve an adverse
outcome, or the patient's perception of one, a small percentage of patient injuries result from
medical negligence or incompetence. Adverse outcomes can occur despite excellent medical care.
That explains why almost 80% of claims against MIEC physicians (and more than 60% of all claims
against physicians nationally) ultimately are closed with no payment to the claimant, and why
defendants lose only a small percentage of cases taken to trial. PIAA special studies outline
the medical and collateral issues involved in the most prevalent and most expensive malpractice
claims against FPs and GPs, and their costs.2
A review of claims experience identifies the medical and non-medical causes of the types of adverse patient outcomes that result in litigation. In addition, MIEC has identified office systems shortcomings and communication gaps that have caused patients to believe an adverse outcome resulted from careless or inattentive medical care. Analysis of closed claims and depositions gives insights into the reasons patients are angry enough to sue after an adverse outcome occurs – even one that is not their doctor's fault. Here are the top 10 reasons physicians are sued for malpractice. Attorneys are encouraged to pursue an injury case if the treating doctor's medical records do
not adequately explain what the doctor did or did not do. In litigation, records that harm the
defense include those that lack documentation of the physician's rationale for critical
decisions, and those that contain factual errors, omissions, illegible entries, unresolved
contradictions, or questionable alterations. An altered record almost always guarantees even a
medically-defensible case will be settled. Two the doctor did or did not do. In litigation,
records that harm the defense include those that lack documentation of the physician’s rationale
for critical decisions, and those that contain factual errors, omissions, illegible entries, Many physicians dislike criticism of their charting, but the fact is that physicians are forced to settle or lose more medically-defensible malpractice cases because of the poor quality of their medical records than they settle or lose because of the quality of their care. Inadequate history-taking or documentation Important medical information is not elicited, identified or documented; missing data includes: allergies; drug use; family history; prior medical problems; and names of other treating doctors. Incomplete medical histories were cited in PIAA studies as a major reason for delays in diagnosing breast, colon, lung and colorectal cancer and heart disease. The perils of failing to obtain – and document – a complete medical history, including current medication use and allergies are obvious. Pending medical problems identified on one visit are not adequately followed up on subsequent visits, resulting in a patient injury. When a patient reports a problem and the doctor elects to observe and monitor, rather than refer the patient to a specialist or for diagnostic studies, the prudent doctor: 1) documents the reasons for deferring action; 2) re-visits the problem when the patient is next seen; and 3) documents a course of action, or notes the problem has been resolved. Informed consent was not obtained, documented The risks of treatment, and the elements of the informed consent discussion are not explained or properly documented. Informed consent is what the patient gives to the doctor after the doctor has explained the purpose of treatment or tests, the risks, alternatives and their risks, and the expected outcome, and answers the patient’s questions. The consent form patients sign is virtually worthless unless the doctor has personally obtained the patient’s consent by following the steps described. A handwritten or dictated note about the consent discussion is more helpful in defending the physician than is a signed consent form. Even in states where a consent form is considered prima facie evidence that the patient gave an informed consent, juries often disregard the form if there is no other evidence that an informed consent discussion took place. Informed refusal was not obtained from patient The risks of refusal of care were not discussed with patients or are not documented. Patients have the right to decline hospitalization, referral to other doctors, or any treatment. When a patient declines, a California Supreme Court decision obliges the physician to explain the possible consequences of the patient’s choice. Only after the patient has been given this information can it be said the patient has given an “informed refusal.” The discussion should be documented, of course. (California’s law may not be specifically applicable in Alaska, Hawaii, Idaho and Nevada, but courts and juries in these states appear inclined to embrace the informed refusal doctrine. Physicians in these states are encouraged to inform patients about the consequences of their refusal of diagnostic tests, treatment, care or referral – and to document the discussion.) Diagnostic lab and imaging tests are not received in a timely manner and/or their absence is not
noticed soon enough. Physicians need an effective system for keeping track of ordered tests and
referrals. Assign a staff member to find out why an expected report was not received. To
safeguard against overlooking significant test results or consultant’s letters – something that
happens all too often – physicians should prohibit their staff from filing these items in
patient charts unless the doctor has initialed them as evidence they have been reviewed. Claims
in which filed, unreviewed reports resulted in a delayed diagnosis or treatment and contributed Inter-professional communication problems Miscommunication among co-treating, referring and consulting physicians results in overlooked or duplicate therapy, and delays in diagnosis or treatment. Keep track of referrals; question delays in receiving reports; and document phone conversations with patients and colleagues in which important information is given or received. Prescriptions and refills of medication are not adequately documented, causing or adding to patient injury. Medication-related malpractice claims are the second most common and second most expensive category of claims against physicians, according to the PIAA. Careless charting, illegible prescriptions, and incomplete documentation of the details of prescriptions and refills are among the reasons for an increase in these expensive claims. Use a medication control record to easily track medications and reduce the risk of overlooking drug interactions or patient dosing errors. (Download a Medication Control Record from this site). Weak, undocumented patient education Patients are inadequately educated about their medical condition, treatment, and follow-up,
which contributes to noncompliance, injury, misunderstanding, disappointment and an inclination
to litigate. Too many physicians rely on oral education, which may be inadequate and easily
forgotten. Most of us cannot remember everything the doctor says. Relying on a pharmacist to
educate patients about drug use, side effects and interactions can be helpful, but may be too Inattention to the importance of a sound doctor-patient relationship Litigation often ensues when doctor-patient relationships are damaged by poor telephone etiquette, including long delays in returning phone calls; excessive or unexplained waiting time; rudeness by physicians or staff; inattention to the patient’s concerns; and delays in reporting significant test results. Make sure your staff understands they are your “patient relations department.” The way staff treats patients on the phone and in person reflects favorably or unfavorably on the doctor. Don’t over-schedule. Apologize for delays; everyone’s time is valuable. Treat patients respectfully. Promptly return phone calls, especially those the patient is waiting for to learn the results of diagnostic tests. A sound doctor-patient relationship is a proven deterrent to litigation. Plaintiffs’ attorneys say, and studies confirm, that most people who want to sue are more angry than injured. Addressing and eliminating these catalysts for litigation will take less time and effort than a physician spends preparing and sitting for a deposition in one malpractice case. Ask MIEC’s Loss Prevention Department about charting shortcuts, time-saving office policies, inservice programs for office staff, practice management advice, assessment of forms used in your practice, an on-site survey to review your medical practice’s key policies and procedures, and other effective ways to avoid patient injuries and resulting malpractice litigation. A version of this article appeared in California Family Physician magazine, Autumn 1999. Notes
Several studies have indicated that some physicians are unfamiliar with state and/or federal laws that permit them to prescribe high doses of narcotics for the treatment of intractable pain. (See also end note #4). Other physicians who prescribe or administer high-dose narcotics for intractable pain fear being sued if the patient becomes addicted to or dependent on the drug(s), a concern which experts say is over-emphasized. Current and proposed laws should allay these concerns. Limited protections. Existing and proposed state and federal legislation will permit physicians to provide appropriate treatment without fear of disciplinary action or litigation. But the protections of the laws only apply to treatment of intractable pain. Special conditions apply to prescribing and dispensing controlled substances to a person the physician knows to be using drugs or other substances for non-therapeutic purposes. MBC disciplinary authority. The Intractable Pain Treatment Act does not interfere with the authority of the Medical Board of California to discipline a physician who: (a) prescribes or administers a controlled substance for non-therapeutic use; (b) writes a false prescription for a controlled substance; or, (c) prescribes or administers a controlled substance in a manner that is not consistent with the public health and welfare. Documentation. Under current state and federal laws, physicians must properly document their purchases and disposal of the controlled substances. Documentation includes the date of purchase, details of the sale or disposal of the drugs by the physician, the name and address of the person who receives the drugs, and the reason the drugs were dispensed or disposed. Need help? Physicians who are uncertain about the medical appropriateness of prescribing or dispensing controlled substances for intractable pain, or the recommended drugs or dosages, should consult with a qualified medical specialist. Questions about legal issues related to treatment of specific patients for intractable claim can be directed to MIEC’s Claims Department.
Resources from MIEC’s Loss Prevention Department Answers to professional liability questions. We can respond to a wide range of general questions about malpractice liability, and obtain legal advice for policyholders when indicated. Sample questions: How long must we keep medical records? How does a doctor properly withdraw from a patient’s care? What is the best method to obtain informed consent and how should consent be documented? (Please direct questions about specific patients to an MIEC claims representative.) Medical Records text. MIEC’s booklet, Medical Record Documentation for Patient Safety and Physician Defensibility, offers practical advice for maintaining defensible medical records and avoiding documentation deficiencies that can compromise a medical defense. The book includes useful chart forms, answers to questions about medical records, and a self- assessment form to review documentation quality. The book is free to MIEC policyholders and offers Category I continuing medical education credits. Chart forms and templates. MIEC’s Chart Forms and Templates for a Medical Practice, offered free to MIEC policyholders, is a packet that includes ready-to-use forms and templates that help physicians and staff organize medical charts, find data easily, and document important information that protects patients and physicians. Camera-ready forms can be reproduced for office use. The entire library of forms is contained on an included PC computer disk. Extensive resource library. Policyholders can request sample medical record chart and consent forms; patient education materials; articles on medical-legal topics; lists of resources for practice guidelines; vendors of electronic and voice recognition medical records systems; and more. On-site loss prevention survey. MIEC’s loss prevention specialists conduct complimentary individual or group practice surveys in which record-keeping, office procedures and practice policies are analyzed. Surveyors meet separately with physicians and their office staff to discuss liability issues relevant to the practice and specialty, and offer practical advice for reducing liability exposure. A written report summarizes the survey findings and provides constructive suggestions for improvements. Newsletters and alerts. MIEC publishes the Claims Alert; Special Report; We Get Letters...; New Law Alert; and Managing Your Practice newsletter series, and other publications that offer helpful and timely solutions to practice problems and answers to policyholders’ questions. Contact the Loss Prevention Department or view many of them on this site. |
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