Lawsuits happen: How to be prepared
First published in Medical Practice Insider | August 10, 2015 | By Jeff Brunken
Amid evolving business models, new technologies, and a changing patient population, physicians must focus on practice elements that ensure positive outcomes and reduce the likelihood of lawsuits. Still, suits happen. Strong communication throughout the process — before, during and after a claim — can reduce the likelihood of malpractice claims, and help physicians respond and recover if one is filed.
Always be prepared
The best defense is a strong offense. Addressing items like patient communication and bedside manner can reduce the chance of incidents. Many suits lack merit and wouldn’t happen with better rapport. People tend to not sue people–including doctors–they like.
Openly and transparently communicate any delay or change in diagnosis, new test results, or other circumstance shift. Patients are accepting and trusting when options are clear. They don’t feel like the doctor’s missing or, worse yet, hiding something.
Be careful about boilerplate informed consent documents, and don’t rely on paper alone. Document physician conversations around the form. Otherwise, plaintiffs’ attorney can easily pick it apart.
Avoid the EHR-technology-enabled temptation to “cut and paste.” Plaintiff attorneys cite such practices as “black-and-white proof the physician didn’t pay attention.” Such claims are damning. They’re difficult to defend and make physicians look lazy.
Separate cost from treatment option discussions. Refer patients to the front-desk person to help them evaluate these. Front-office staff can help in other ways, too. Many patients show dissatisfaction in the waiting room. Attuned staff can observe such behaviors and let the doctor know immediately. If they’re not attuned, train them.
Finding a financially-strong, knowledgeable insurance provider is a given. Candid communication plays out here, too. Represent the practice scope completely and truthfully on the application. This puts you on solid footing.
We recently had a claim against an allergist for emergency room work–a role not disclosed on his application. He had to spend time in emergency to maintain staff privileges, but was afraid to tell us. Knowing this up front could have prevented misunderstanding and avoided coverage questions.
Years ago, we managed a program for alternative medicine physicians. Some doctors we covered seemed afraid to disclose to us what procedures they included in their practice. Yet, this particular insurance program was designed specifically for them. We had to push to find out exactly what they were doing.
Physicians today also are exploring fee-for-service practices–med spas, integrative medical procedures or other services patients want but aren’t always looked kindly on by fellow doctors. Don’t assume underwriters respond like medical peers. There’s no “club mentality” with insurance providers.
Be sure to use risk management services insurers make available. For example, our online courses focus on soft skills, helping doctors communicate with patients every step of the way.
Lawsuits are traumatic and emotional. A natural reaction is to want to talk to somebody. That “somebody” should be your insurance provider. Pick up the phone and let the company know, even if you haven’t been sued, of a bad outcome. The claims team will talk you through the situation and address next steps, perhaps assigning counsel or simply creating a communication plan. They will explain what everyone needs to do.
Early reporting allows for early intervention, which can make claims disappear. The old-school perception that reporting an incident is a black mark is wrong. Insurers don’t react emotionally. Successful defense and mitigation are more likely if the insurer knows about things early.
Assigned attorneys work for the physician, not the insurer, and counsel appropriately. For example, “I’m Sorry” laws in many states provide legal context for diffusing a situation. Patients and families want to hear a physician feels bad about a situation and that it won’t happen again. There’s a way to do this constructively and a way that makes things worse. Professional counsel is key.
Back on the horse
Physicians must fight the natural inclination to take a claim or lawsuit personally. That’s tough, because they’re passionate about what they do and often feel like a suit is a betrayal.
Many claims are without merit. The physician simply chose the wrong patient. It’s important to get on with it. Go through the grieving process. Cooperate with your insurance company and move on. Your patients need you at your best.
Physicians worry about suits appearing in the national practitioner databank. In today’s world, 70 percent of the physicians will be sued throughout their career. It doesn’t mean that they’re bad or unprofessional. It’s just life.
The biggest part of recovery is communicating with the person in the mirror. Is there something you could have done differently? Could you have communicated or documented better? Must something change in your practice — a specialty that might be better served by a referral? Learn from mistakes. Make changes.
Again, don’t personalize it. Get through it. And use it as constructively as possible. If there’s an elephant in the room, deal with it.
Jeff Brunken is President of The MGIS Companies, Inc. MGIS helps brokers, practice managers and other healthcare professionals create effective and targeted malpractice and disability insurance programs for physicians and medical professionals.