Tuesday, March 22, 2011

How Doctors can Avoid Malpractice Suits

     The most common cause for suing an internist, according to my malpractice insurance company, is "failure to diagnose", followed by "failure to make a timely referral". After reading most of what this company had to say, discussing events with Risk Management, and many talks with those of my patients and friends who are tort attorneys, I have developed a list of do's and dont's for practicing physicians who wish to minimize their risk of being sued. This list will probably not lead to better or more efficient or cheaper patient care, but it will reduce the malpractice exposure of any doctor who follows my recommendations to the letter. I have also thru Lexis and other search engines, verified that there is at least one malpractice case that was triggered, in part, by the physician's failure to follow one of these rules:

     1) At EVERY visit, ask the patient if he/she is suicidal, or has suicidal thoughts.

     2) Every time you prescribe any drug that acts on the central nervous system (sleeping pills, tranquilizers, anti-depressants, etc.) caution the patient not to drive or operate heavy machinery for 24 hours after taking the medicine.

     3) If any patient refuses a suggested test: mammogram, pap smear, stool for blood, fire that patient from your practice immediately. Juries have held that if the patient dies because of a refused test, you probably didn't word your advice strongly enough. The same holds true for blood tests.

     4) Never give any advice over the phone. It is basically malpractice and also a violation of most state medical laws to "prescribe", i.e. give any medical advice without examining the patient. Insist that the patient come in to see you right away, or have the patient call 911 for an ambulance to go to the ER.  I know some doctors who will call 911 if the patient refuses to.

     5) Whatever the patient's problem, after you suggest a diagnosis and treatment, have the patient see a specialist in the field of the affected organ (cardiology for hypertension, GI for abdominal pain, neurology for dizziness) and tell the patient you can't continue as the personal physician unless a specialist is seen.

    6) For any abnormal blood tests, again refer at once to a specialist.

     7) If the patient, or the patient's family suggests any test; cardiac echo, brain MRI, chest CT scan, agree at once, order the test, and again refer to the appropriate specialist.

     8) Do a stress-echo and stress-thallium and cardiology referral for any pain above the waist, an abdominal and pelvic CT scan with contrast followed by an MRI and a referral to a GI doctor and a urologist for any pain below the waist, a Chest CT scan with contrast for any cough and for any smoker with a referral to a pulmonologist and a total body bone scan for any back or hip pain, followed by referral to an orthopedist. If CT scan shows nothing, do an MRI, followed by a MRA. If headache or dizziness, head CT with contrast, MRI with gadolinium, and neuro consult. This may not be cost-efficient, but a malpractice jury never cares about that.

     9) "When in doubt, refer it out".

     Of course I never practiced medicine following the above legalistic "rules", but every doctor has to consider the risks of not following those rules every time there is patient contact.  And in America, if something "bad" happens to a patient, it must be someone's fault. The doctor no longer has to prove he/she did nothing wrong, but rather than he/she did everything that was "right".

     I suspect that there would be fewer malpractice suits if workmen's compensation laws applied: no contingency fees for lawyers, and a pre-set schedule of payments for partial or permament disabilities up to and including death. Don't forget the Texas jury that bankrupted Dow Chemical, because they believed "as a matter of fact': that silicone leaking from breast implants caused a lupus-like syndrome. Unfortunately Dow went bankrupt from the class-action suit. Two years later a careful study in the New England Journal of Medicine showed that there was absolutely no correlation, and certainly no evidence of cause-and-effect, but Dow remained in bankruptcy court, and none of the plaintiffs or lawyers had to return any of the money.

     What I am really saying is that with the best doctors, good medicine results from a combination of skills, intuition, and art. When  I walk into an ER hospital room, I often think to myself: "This patient is sick and needs a hospital admission". Then I have to invent a diagnosis, because the insurance computers don't pay for an admission diagnosis of "looks sick", which is an absurdity:just  as all you mothers out there know when your child is sick, I can see when my patient is sick. Sometimes I put down 999.90 "unknown disease", because (a) we all have at least one of those, and (b) it drives the computers wild when they try to calculate a LOS., or look for guidelines.


  1. "3) If any patient refuses a suggested test: ... ... fire that patient from your practice immediately."

    This is grounds for a RICO lawsuit, especially if the lab is connected to your hospital , group, etc.

    Besides, patients are an endless source of money, they can afford it. Buy a testing clinic and CASH IN!

    This also violates HIPPA, The Patient Protection and Affordable Care Act (PPACA), and other statutes by not allowing the patient to participate in their own healthcare, not to mention it can be considered coercion or extortion.

    Here is an even better idea, act like a human being. Get to know your patient. If you screw up, apologize. Most lawsuits are the result of not apologizing for a mistake. The person feels slighted, gets PO'd, and next you get a lawsuit.

    Lawyers advise against an apology because "you are admitting a failure on your part that can lead to legal action."

    Most plaintiffs who file lawsuits with merit, and regardless of who prevails or settles, will say that a simple apology would have avoided the whole mess.

    For the ridiculous and frivolous suits, there is no protection. They happen whether you are right or wrong.

    "...fewer malpractice suits if workmen's compensation laws applied: no contingency fees for lawyers..." I wholly agree there.

  2. With regard to #3, although I don't practice that way I included it because a patient of mine who consistently refused a colonoscopy, which was well-documented in my chart, developed colon cancer and her husband sued both me and her gynecologist for not making her have a colonoscopy. Needless to say, the suit was dismissed with prejudice, but had we fired the patient, there would have been no suit at all. It is perfectly legal to discharge ("fire") a patient who refuses to follow your medical recommendations, so long as you give 30 or 60 days notice and suggest other doctors.

  3. And one of the factors in the increased cost of medical care is that a doctor does not get sued for ordering a test, but can be sued for not ordering one, especially in the emergency room.