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1. 6
Medical-Legal Risk Management
James M. Kelley, III and Gretchen M. Lentz
The word malpractice evokes a guttural response in physicians that only 3% of claims that were filed had no verifiable medical
and health care providers. This is perhaps more true in the areas injuries. Additionally, 37% of those did not involve errors, but
of obstetrics and gynecology, where the physical damages are of- rather would be what a physician would commonly refer to as
ten catastrophic and the economic damages are often in the mil- “frivolous.” Despite common perceptions about runaway juries
lions of dollars. The fear of being unjustly involved in litigation and lottery verdicts levied against faultless physicians, the study
and judged by nonphysicians as liable—despite having provided demonstrated that 84% of the claims that did not involve errors
reasonable and appropriate care—seems unavoidable to many resulted in nonpayment. Conversely, approximately six times
conscientious health care providers. The little-known reality, that rate of claims resulted in nonpayment to the plaintiff,
however, is that the growing consensus of empirical data on out- despite the presence of medical errors and verifiable injuries.
comes of malpractice actions shows that the legal system works
for the provider in the end far more often than it does not. Un-
Box 6-1 What Constitutes Medical Malpractice?
derstanding how the system works and making minor practice
modifications to minimize risk are essential to avoiding claims To successfully maintain a medical malpractice action, a plaintiff
and adverse outcomes. must be able to establish three distinct elements of his or her
A medical negligence case comprises three basic elements: a case by way of expert testimony:
deviation from the standard of care, proximate causation, and 1. Deviation from the standard of care. The health care provider
deviated from what a reasonable provider would have done in
damages. Each of these elements is required to be proved by
the same or similar circumstances.
way of “competent” expert testimony. The definition of compe- 2. Causation. The deviation was a direct cause of the injury
tent varies state to state, but all states are uniform in requiring a suffered.
physician to agree that malpractice occurred, and that it directly 3. Damages. Economic and noneconomic damages were suffered
resulted in injury. A deviation from the standard of care, al- as result of the injury.
though a cumbersome legal phrase, is simply a failure to act rea-
sonably as compared with another health care provider in the
same or similar clinical circumstance. A deviation from the stan- Although these data should be heartening for health care pro-
dard of care can be an act (intraoperative perforation, administra- viders, they do little to eliminate burdens of excessive litigation
tion of the wrong medication, etc.) or an omission (failure to run costs, time away from practice and families, and the stress of par-
the bowel intra-op or failure to timely review laboratory results). ticipating in litigation. The goal for conscientious providers
Proximate causation is often a more medically complex com- must be one focused on risk management: balancing improved
ponent. The law requires that the deviation from the standard of patient care and minimizing medical legal risk. Realizing law-
care be a direct, proximate cause of injury to the plaintiff. It is suits will inevitably occur, the following are practical insights
important to note that the deviation does not have to be the ex- aimed at helping you enhance patient care and communication,
clusive cause of injury but rather need only be a direct proximate minimize the risk of involvement in meritless litigation, and
cause. Proximate cause, legally, just means that with appropriate provide your best defense in the event a claim is made.
or reasonable treatment, the injury would not have occurred.
The final element is damages. Damages are economic and
noneconomic. Economic damages include such items as past COMMUNICATION
and future medical bills and past and future wage loss. Noneco-
nomic damages contemplate such things as past and future phys- Medical-legal risk management, at its core, centers on commu-
ical pain, emotional suffering, and, in certain instances, wrongful nication in both the written and verbal form. Awareness of the
death. To be successful, the plaintiff must prove each of these common pitfalls in the processes employed in communicating
elements to a probability, through expert testimony, in order information to patients—as well as concurrent and subsequent
to win. A failure on any of the elements will result in a verdict care providers—will be invaluable if problems or litigation arise.
for the defendant. The medical record, institutional policies and guidelines, and in-
As mentioned, many health care providers will be surprised to formation communicated to patients (prospective plaintiffs) will
learn what the growing consensus of empirical data reflects re- be the only information attorneys, claim representatives, and
garding medical claims. A review of approximately 1400 closed reviewing expert physicians have available to judge the validity
malpractice claims from five different liability carriers showed of a potential malpractice claim. The following examines good
105

2. 106 Part I B A SI C SC I E N C E
practices to improve communications with patients (both before and can ultimately lead them to seek answers to their questions
and after treatment), improve the accuracy of the medical re- from an outside source—most often an attorney.
cords, and provide useful information about navigating the Once again, it is imperative that you write contemporaneous
litigation process to your best outcome. and accurate notes. The timing of such notes, combined with
their detail and clarity, will begin to establish good defense in
the event the records are reviewed for a possible claim. It is easy
COMMUNICATION WITH THE PATIENT
to defend conscientious care, regardless of outcome, if the record
Physicians well understand that the relationship with their pa- supports you.
tient is in large measure a relationship of trust. More often than
not, a perceived breach of that trust is the impetus for a patient to
Box 6-3 Practice Tip
seek the advice of an outsider for explanations about unfortunate
medical outcomes. It must become a routine practice for physi- Communication with the patient when a problem occurs is an
cians to thoroughly and carefully discuss potential problems with opportunity to explain how the poor outcome happened,
their patients prior to treatment. Taking the time necessary to despite vigilance. Patients will naturally have questions, and
most who contact a malpractice attorney are doing so to get
assess a patient’s understanding of the procedures and possible
answers to questions they feel were not sufficiently answered by
outcomes, and answering all questions the patient may have, the health care provider.
are critical to managing and controlling expectations. Concur-
rent notations in the record that you have, in fact, reviewed
all risks and benefits of a potential treatment, thoroughly
COMMUNICATION THROUGH MEDICAL RECORDS
explained alternative treatments or procedures, and answered
all patient questions will provide important evidence of careful Once the litigation process has commenced, a plaintiff attorney’s
and appropriate treatment should it later become necessary. best friend is inaccurate or inconsistent documentation of the
care provided. Inaccurate documentation can stem from a gen-
Box 6-2 Practice Tip uine standard-of-care issue; however, inaccuracies can also arise
from the use of inappropriate nomenclature. In either situation,
Sample Progress Note the health care provider will be in the untenable position of
Risks/Benefits/Alternatives (R/B/A’s) discussed w/patient. attempting to defend a narrative note or deposition testimony
All ?’s answered in full. that is factually inconsistent with literature, policies, or objective
data in the medical record. Needless to say, in a courtroom, in-
The abbreviations and words in Box 6-2 are an invaluable consistencies never favor the inconsistent party. Careful atten-
resource in the event of a complication or litigation. tion to recordkeeping will not only demonstrate attentive care
In the unfortunate event of a poor outcome, it is imperative and rationally based treatment decisions, but it will ultimately
you communicate more, not less, with your patient or the pa- become a provider’s best defense in a courtroom.
tient’s family where appropriate. Health care providers often Within your hospital, facility, office, and charts, you must use
dramatically change—or end entirely—their relationship with nomenclature designed to standardize the verbiage utilized be-
patients following a maloccurrence. For example, in situations tween providers. Unfortunately, despite the attempts at stan-
where the patient may have ongoing care issues but is transferred dardization, many health care providers have been slow to
to a tertiary center or a different specialist, there is often minimal adapt. This is often based on variable levels of education by au-
or no ongoing relationship. Despite what may be the urge to dis- thors, and it is also generational. This increases not only the risk
tance yourself from an unpleasant or uncomfortable interaction, of inaccurate communication among health care providers, but
keep in mind that your patient and his or her family members also the risk of a medical record replete with inconsistencies.
will begin assessing whether or not you are forthcoming with Inconsistencies can be easily used to portray a provider as
them at this very time. If there is an attempt to avoid interaction incompetent or disingenuous.
it can, and likely will, be misperceived as an attempt to avoid From a medicolegal risk management standpoint, it is critical
explaining the cause or causes of the bad outcome. It is impor- to keep in mind when a plaintiff’s counsel attempts to determine
tant that your trust relationship with the patient and the patient’s whether or not medical malpractice may have occurred; the med-
family continues at this crucial time and that they feel you are ical record is the primary (and often the only) source of informa-
willing to answer all questions. tion available to evaluate the potential claim. Any narrative notes
When discussing the outcome or problem, revisit the discus- supplied will be read against subsequent health care providers’
sion of risks and outcomes at the time of the informed consent. notes and the objective data such as lab results and imaging.
Reiterate the information you previously provided, and explain As stated earlier, clearly noted and accurate recognition and de-
how this result is related to the risks previously discussed, if ap- scription of reassuring and nonreassuring findings in the record
propriate. Finally, it is also important that you are involved in will demonstrate attentive and competent care. However, inac-
establishing the plan for care going forward, even if it is outside curate terminology, when read against the objective data, could
of your specialty. Remaining involved preserves the physician- result in the commencement of litigation.
patient relationship. Patients are far less likely to file claims Beyond the initial review phase of a potential claim, inconsis-
against physicians with whom they have an ongoing, trusting re- tent and inaccurate nomenclature and recordkeeping will conti-
lationship. It is therefore important to make yourself available as nue to present obstacles to a favorable resolution of the claim
long as is necessary to assure the patient and his or her family that during the testimonial phase of trial. When a witness employs
you are answering all of their questions. Absence or avoidance modified or nonstandardized nomenclature, other health care
will make the patient or another family member suspicious providers, including expert medical witnesses, do not necessarily

3. 6 Medical-Legal Risk Management 107
understand the full extent of what is meant. This unclear commu- are the bases of any litigation should be familiar to you before
nication can result in actual medical errors between providers or, at you provide sworn testimony under oath. Because these written
a minimum, the appearance of errors within a medical record. policies can form the basis of an accepted standard of care in your
institution, any testimony or records inconsistent with these pol-
icies can be viewed by a jury as being outside the standard of care,
Box 6-4 Factual Scenario or negligent.
In a previous deposition, a physician was questioned regarding a
nursing narrative note.
Q. Dr. Doe, do you expect the nurse to relay to you if there are any Box 6-6 Factual Scenario
postoperative changes?
A. Any relevant postoperative changes should be relayed to me, Many gynecologic cases involve the failure to recognize
particularly if there are more than one. perforations or bleeds. Total abdominal hysterectomy usually
Q. By relevant change do you mean if any vital signs manifest carries with it a specific physician’s postoperative order or, more
persistent change? commonly, a hospital’s postoperative policy or protocol. It is of
A. I do not understand what that means; however, if a nurse sees critical importance that the nurse and physician both have an
vitals change, I want to know about it immediately, especially if understanding of the specific details of the policy or protocol
it persists. prior to executing care and prior to testifying regarding these
The narrative notes within the case included the nurse describing issues. The following example highlights why this is important:
labile blood pressures. Utilizing charting terminology such as Q. Are you aware as to whether or not there is a postoperative
labile created a scenario where the physician had expectations policy at this facility?
of being told immediately, and a medical record suggesting the A. I don’t know. I guess there probably is.
call should have been made. Further testimony demonstrated Q. Do you agree that you as a reasonable nurse have a duty to
that no information regarding these changes was relayed. follow the policy here at the facility?
The nurse testified as follows: A. I don’t really know what the policy says, but I’m sure it’s
Q. Did you relay to Dr. Doe that the blood pressures were labile? reasonable and yes I should probably follow it.
A. No. Q. If you failed to follow the policy, can we agree that you would
Q. Why not? have been acting unreasonably and beneath the accepted
A. Because I felt it was not necessarily significant and may be standards of care?
routine postop fluctuations. A. I probably should follow a policy if it exists. I guess if I didn’t,
Q. So you felt it was unstable but not labile? I was beneath the standard of care.
A. Yes. The nurse went on to define terms differently from the definition
Q. So when you chart the word labile, you want the jury to believe it contained in the policy and testified that the physician with
doesn’t mean labile? whom she was working was aware of her actions. When the
A. I guess. physician was questioned he testified as follows:
Q. Do you expect the nurses to follow your specific orders and,
when orders are not present specific to the chart, to follow
The preceding example shows how the inappropriate and in- policies or protocols that are in place for the delivery of health
consistent nomenclature forced the physician to be critical of the care to patients?
A. Absolutely.
nurse’s actions, while the nurse attempted to separate herself Q. For this patient did you write a specific postoperative order?
from her own charting. This is not only a difficult posture to de- A. No.
fend, but also it reflects poorly on the competency and truthful- Q. Your order says, “post TAH protocol”?
ness of the parties involved. Simply employing appropriate, A. Yes.
consistent nomenclature would have provided an easy defense. Q. Does that mean the nurse should follow the hospital’s policy or
protocol?
A. Absolutely.
Box 6-5 Practice Tip Q. Is a reasonable nurse allowed to deviate from that policy or
The consistent use of appropriate nomenclature not only protocol without calling you first?
minimizes risk in the defense of a medical legal action. It will A. No.
also allow the physicians and nurses to communicate clearly by
ensuring they are discussing the same findings and placing the
same significance.
Here, a lack of familiarity with the standard policy within the
hospital created a scenario where the physician and nurse were
uncertain as to what was expected by the hospital. Compound-
COMMUNICATION CONSISTENT WITH
ing matters, the lack of familiarity with the policy and protocol
INSTITUTIONAL POLICIES
prior to deposition created a scenario where not only did the
Published institutional policies and procedures should be nurse provide testimony that she deviated from the policy, but
reviewed regularly and integrated into your daily practice. The also she was forced to acknowledge a total lack of familiarity with
purpose of the policies or protocols is not merely for JCAHO, the same. In short, knowledge of and compliance with institu-
or to fill shelf space, but to effectuate patient care and create a tional policies, guidelines, and resources can demonstrate the im-
consistent safe administration of the medication and care to pa- plementation of appropriate care, and documentation can be the
tients. However, each individual patient obviously deserves indi- shield of your defense; or ignorance of and deviation from such
vidual care and modifications to the policy or protocol as may policies can provide a documented deviation from the standard
be necessary. Policies and protocols relevant to the issues that of care that will become the plaintiff’s sword.

4. 108 Part I B A SI C SC I E N C E
WHEN A CLAIM IS MADE Box 6-7 Practice Tip
1. Secure and isolate the patient’s complete medical record.
The institution of a claim varies from state to state and is defined 2. Make no additions, modifications, or alterations to that
differently among various insurance policies. It is imperative that chart.
you have an understanding through your institution, insurance 3. Notify either your institutional administrative or insurance
policy, and within your state as to what constitutes knowledge or representative of the claim, in order to preserve coverage.
notice of a claim. When notice of a claim is received, it is imper- 4. Participate fully—and as a priority—in the defense of the quality
ative that you immediately notify your hospital or group admin- of your care.
istrator and your insurance company. A failure to timely notify
individuals can jeopardize insurance coverage or compromise
your defense, and in a worst-case scenario it may potentially PHYSICIAN’S DEFENSIVE STRATEGIES
result in a default judgment for failure to timely respond.
Although the legal system does move slowly, there are certain ABANDONMENT
parameters, and timely responses are mandatory at the beginning
of litigation. Unilateral dismissal of the patient by the physician without
Participation in a claim is aggravating, frightening, and an proper notice to the patient is popularly conceived of as being
imposition upon your professional or personal time. However, the entire tort of abandonment. However, failure to keep an ex-
it is of critical import to avoid procrastination or de- press promise (being present for a delivery, making a house call,
prioritization of the claim regardless of the level of merit or dam- or treating with a particular modality are common examples),
ages you perceive. A lawsuit is typically commenced by the filing failure to give proper discharge instructions, or abrogating your
of a legal pleading known as a complaint. Thereafter, there will be authority to a less qualified individual are much more likely to
a statutory amount of time for an answer to be filed on your result in charges of abandonment. This is particularly true in the
behalf. Thereafter, the first portion of litigation is referred to case of the obstetrician/gynecologist, in which the courts con-
as discovery. This is where each side exchanges information either sider the physician/patient relationship to be particularly per-
through documents or sworn testimony between the sides—first sonal and private.
regarding factual information, then regarding expert opinions in
the claim. A deposition is simply the opposing attorney’s oppor- Physician’s Defense Strategy
tunity to ask questions under oath that are reasonably calculated Explain your coverage arrangements in a patient brochure and
to lead to relevant discoverable evidence. document that the patient has received it. Do not sign out to fam-
Your deposition is an obligation, not an opportunity. In that ily practitioners or partially trained gynecologists. If house offi-
regard, it is critical that you meet with your attorney in advance cers are going to be involved in the patient’s care, explain their
of your deposition so you can be prepared for the relevant issues. role and do not allow them to exceed the stated role. Do not make
A critical review of your care with your attorney is important so express promises if there is even a minimal chance a change of
that you can anticipate all areas of questioning and avoid being circumstances will prevent you from keeping your promise.
surprised under oath. The answers you give under oath are sworn
testimony in the case, and oftentimes depositions circulate even ABORTION
after the closure of the file. It is recommended that you meet at See the preceding discussion. Two subsequent Supreme Court
least 1 week in advance of your deposition with counsel for a pre- cases (Webster v. Reproductive Health Services, 109 S. Ct. 1759
paratory session—which will allow you adequate time in the [1989]; Planned Parenthood v. Casey, 112 S. Ct. 2791 [1992])
event your practice requires a delay or cancellation to reschedule have greatly expanded the local control of abortion, and preabor-
that meeting—before you actually give your testimony at depo- tion procedures.
sition. Additional techniques include a mock deposition, where
another attorney questions you in a practice session to prepare Physician’s Defense Strategy
you for the format. This can be very useful for pointing out Seek local legal counsel. Make sure all aspects of your abortion
medically complex issues and for enhancing your preparation practice conform to local, state, and federal law. Insist on an
for giving sworn testimony. opinion letter that covers preabortion, abortion, and post-
Your deposition testimony, along with the other factual wit- abortion issues. Do not do the procedure without “on advice
nesses, will then become a supplement to the medical record of counsel” protection. Get timely legal reviews.
for the expert witnesses to utilize and, ultimately, jurors to judge
which position they deem more reasonable. Accordingly, just as CANCELLATIONS AND “NO SHOWS”
accurate, concise, and consistent communication in your medical Cancellations and “no shows” of follow-up patients appointments
record is a priority, so too should it be within your deposition. are often ignored in the busy clinic or office. They can be, and are,
Following discovery, cases are usually scheduled for jury trials frequently responsible for subsequent malpractice suits.
based on individual court docket systems. You should plan on
attending each day of your trial and participating in the same. Physician’s Defense Strategy
While it is no physician’s desire to take time away from his or Each cancellation or no show should be documented in the
her practice to be in a courtroom, it is imperative that when chart. The chart should then be reviewed by the treating physi-
you arrive there, you have an accurate medical record and depo- cian and, where appropriate, a letter or phone call made to the
sition to support the reasonableness of the decisions you made at patient. All efforts to communicate with the patient should be
the time that you made them. documented.

5. 6 Medical-Legal Risk Management 109
COVERAGE ARRANGEMENTS “a slap on the wrist.” However, in 1977 Congress made those
laws draconian. False statements, which include:
As mentioned earlier improper coverage arrangements may lead
to charges of abandonment. Poor communication among cover- 1. Knowingly and willfully making or causing to be made any
age groups frequently leads to offended patients and can be the false statement or representation of a material fact in seeking
first step on the path to a malpractice suit. to obtain any benefit or payment
2. Fraudulently concealing or failing to disclose information af-
Physician’s Defense Strategy fecting one’s rights to a payment
The previously mentioned strategy applies here: 3. Converting any benefit or payment rightfully belonging to
another, and
1. List your coverage arrangements in your new patient brochure. 4. Presenting or causing to be presented a claim for a physi-
2. Sign out to qualified individuals. cian’s service knowing that the individual who furnished
3. Do not make specific promises as to your presence or the service was not licensed as a physician.
procedures.
4. In addition, coverage groups should meet regularly to ex- These also encompass false claims, bribes, kickbacks, rebates
change information and maintain protocols. or “any remuneration” and are felonies with a maximum of 5
5. Problem patients should be known to the entire group. years in jail and a $25,000.00 fine possible for each such of-
6. All after-hours care should be carefully documented and en- fense. (The law states that any provider who knowingly and
tered in the medical record either contemporaneously or at willfully solicits, pays, offers, or receives, any remuneration,
the latest, the next business day. in cash or in kind, directly or indirectly, overtly or covertly,
7. All medical records should be available to all members of the to induce or in return for arranging for or ordering items or
group. services that will be paid for by Medicare or Medicaid will
be guilty of a felony). These rules and regulations essentially
When you have the coverage: made it impossible to practice without violating some aspect
1. Don’t put geographic barriers between you and the patient (al- of the fraud and abuse laws. It was, however, 10 years before
though it is not written in stone, The Emergency Medical the laws were refined in the Medicaid–Medicare Patient Pro-
treatment and Active Labor Act and other federal regulations tection Act of 1987 which provided some “safe harbors” to free
and cases based thereon would indicate that you should be able normal course of business procedures. Since 1987, the govern-
to reach your patient’s bedside within thirty (30) minutes). ment has pursued fraud and abuse cases with ever-increasing
2. Do not drink alcohol or take drugs (even prescription drugs) vigor. In 2003, settlements in fraud and abuse cases netted
that can affect your cognition or cause somnolence. the government close to $2 billion (Wall Street Journal, A1, Fri-
3. Document all phone calls. Err on the side of caution. day, June 11, 2004). The real danger to the physician is not the
4. Emergency physicians are great, but emergency departments fine that may force him or her into bankruptcy or the unusual
are often overworked and slow and you are inserting an in- imposition of jail time (to date, the government has seemed
tervening opinion between you and the patient. An “I will more interested in recovering cash and calling a halt to illegal
meet you at the emergency room!” has been a great relief practices than it has in jailing doctors), but the felony convic-
to many a patient and many a physician. tion that may result in the automatic loss of the license to prac-
tice. Thus Medicare/Medicaid fraud and abuse is a far more
CONTRACEPTION AND STERILIZATION dangerous hazard than is malpractice.
Contraceptive methods and sterilization procedures can involve Physician’s Defense Strategy
the physician in multiple issues of informed consent, treatment Have your patients sign in whether they have come for an office
of minors, emancipation of minors, and court-ordered proce- visit or just a procedure. If you are worried about privacy issues,
dures, wrongful pregnancy as well as wrongful life and wrongful use a privacy sign in sheet that prevents subsequent signers from
birth suits. seeing who has signed in before (Colwell Publishing provides
several styles of such sheets and they are very likely supplied
Physician’s Defense Strategy by local firms as well.)
There is no escaping the necessity of researching your state’s re- Don’t unbundle procedures that are supposed to be bundled
quirements. However, no where in obstetrics/gynecology prac- on a physician’s visit. Don’t unbundle surgical procedures.
tice is the communication with the patient more important. A Don’t charge for procedures done by another licensed provider
thorough, unbiased informed consent is required. In addition, or charge for physician’s services if the physician is not physically
be careful of your terms. A tubal transection should be truly a present. Send your personnel to an accredited coding course and
tubal transection and a piece of tube sent as a pathology speci- make sure your coding is being done in an accurate manner. Do
men is a splendid proof that the tube was sectioned. A clamped, not be tempted to code up. Time studies and statistics are against
crushed, or cauterized tube signed out as a tubal transection is a you. Finally, beware of the “coding consultant” who promises to
much less satisfactory form of evidence at a subsequent trial. increase your accounts receivable.
FRAUD AND ABUSE INFORMED CONSENT
In 1972, as part of the first amendments to the Medicaid and Physicians continually ask for a foolproof informed consent
Medicare rules and regulations, Congress passed antifraud and form. Informed consent has little to do with a form. Informed
abuse regulations. The first such laws were hardly more than consent has to do with the physician’s fiduciary duty to his or

6. 110 Part I B A SI C SC I E N C E
her patient. As the patient’s fiduciary, it is the physician’s duty to follow-up must be documented. Telling the patient to call
give the patient all the information needed for the patient to for the test results does not relieve the physician of his or her
make an intelligent decision about the therapies suggested. duty to notify. Finally, use the information you secure.
The information given must be accurate for published studies Do not order laboratory or other diagnostic tests and then
and compared with the physician’s own figures, unbiased by ignore or belittle those results.
the physician’s privileges or other agenda, and presented in lan-
guage the patient in question can understand in view of her ed-
ucation, intelligence, experience, and social standing. The MEDICAL HIGH-RISK PATIENTS
information should include the diagnosis; a description of the Elderly, frail women with or without serious concomitant con-
suggested treatment; an explanation of what the treatment is ditions and women of any age with serious gynecologic or con-
thought to accomplish; the hoped for prognosis with the treat- comitant conditions are legally and medically at high risk.
ment; the possible side effects and possible adverse happenings
with treatment; the therapeutic alternatives, their benefits, and
Physician’s Defense Strategy
possible adverse and side effects; and the patient’s prognosis with
Treat these women as being at high risk. Question all of your
the alternative and no therapy.
routine procedures. Check what medications (prescription,
over-the-counter, and health food store) they are taking. Watch
Physician’s Defense Strategy the dosages you prescribe. Make sure your staff assists them
Give the woman all the information called for and document it from the moment they enter the door until they are safely over
in the medical record. Ask her is she has any questions. Answer the doorstep and into someone else’s capable hands. To let one
the questions, and document both the questions and the answers. of these patients get on or off an examining table by herself
Use diagrams when necessary. Add the diagrams to the medical is courting disaster. A premises liability suit can be just as ex-
record and ask the patient to initial the diagrams. Have the pensive as a malpractice suit, and it is much easier and cheaper
patient sign the consent form—use the statutory form if your to bring.
state has one—if not, use one approved by your clinic or local
medical organization and approved by your attorney. After the
patient signs again ask her if she has any questions. Answer those MEDICAL RECORDS
questions, and again document both the questions and answers. The 1930s wag who came up with the saying, “Medical records
Before the surgery, procedure, or therapy covered by the form, are the malpractice witness that never dies!” offered a truism that
again go over the same material, answer any last-minute ques- has only increased in value over time. The world of judges and
tions, and document the entire episode. Remember, the duty juries of 2012 expects much more than the hand-written scrib-
to secure informed consent is the physician’s duty, not the nurse’s bles on a 4 Â 6 inch card that marked the medical record of
duty or a hospital admission clerk’s duty. It is still questionable 1930s.
whether the physician is legally able to delegate that duty
elsewhere.
Physician’s Defense Strategy
If at all possible, all your records should be typed. Even the best
LABORATORY TESTS penmanship can be misinterpreted. All records should be written
or dictated contemporaneously with the event described. All re-
One of the most common reasons for malpractice suits is the cords should be in English, as objective as possible, clear without
unreported abnormal laboratory or X-ray finding. The usual confusion or ambivalence, dated, timed, signed legibly, and kept
story is that the pathologist or radiologist returns the report in chronological order. Chart by the subjective, objective, assess-
and the super efficient clerk, receptionist, or nurse staples it in ment, plan (SOAP) method whenever possible. Do not use ab-
the medical record and then files the record. The alternative story breviations! (That includes abbreviations “approved” by the
is that the report is never sent and there is no follow-up. Of institution or organization. Even the most common abbrevia-
course, normal clerical errors do occur in any business; neverthe- tions have multiple meanings. There will always be an expert that
less, the physician’s fiduciary duty extends to communicating the interprets the abbreviation in a manner contrary to your inter-
results and meanings of all abnormal tests to the patient. There- est.) Scrivener’s errors may be corrected en page. Errors of fact
fore, the failure to communicate the results of an abnormal pap or substance should be corrected as a new entry placed in the
smear, glucose tolerance test, or mammogram to a patient can chart chronologically. Do not obliterate, destroy, change, or
have disastrous legal consequences. “lose” any portion of a medical record. Such activities are termed
spoliation of evidence. At best they may call for civil penalties at
Physician’s Defense Strategy trial and at worst may constitute malpractice per se or invoke
A gynecologist must have a system to track and document all criminal penalties. In any case such spoliation of evidence makes
laboratory and diagnostic tests and imaging studies ordered. any subsequent suit almost impossible to win. If your state or
There is no totally satisfactory way to do this. Old-fashioned hospital or the American College of Obstetrics and Gynecology
“tickler” files are the least efficient, but better than nothing. (ACOG) has a standard form that is widely used in the commu-
Some office-generated computer programs have been highly nity, use that form or one even more extensive. Do not leave
successful, and some of the commercially available programs blanks on your form. If the question is worth asking it is worth
even generate an automatic notification letter. In any case, recording. Although many sources advise keeping medical re-
the physician must track all ordered tests and make every rea- cords for a period of 10 years after the last contact with the pa-
sonable effort to notify the patient. The notification and tient, a safer approach is to keep the record for a period that

7. 6 Medical-Legal Risk Management 111
would allow a conception at the date of last visit to reach matu- 12. Finally, check each prescription or order you write for clar-
rity and expire its statutory limitations or statute of repose in ity, legibility, appropriateness of drug and dosage in relation
states where there is a discovery rule. to the information available on the drug, the patient, and the
diagnosis.
PRESCRIPTIONS Addendum: A caution about drug samples. Samples should be
stored properly and with reasonable security. (Neither the pa-
Adverse drug events are among the most common medical er- tient, nor nonmedical personnel should be able to gain access
rors, and although physicians are loathe to admit it, more than to samples.) Rotate the samples appropriately, and dispose of
two thirds of all adverse drug events are caused by physician er- out-of-date samples safely and legally. Samples should be dis-
ror. Transmission errors and compounding (filling the prescrip- tributed by personnel with prescriptive authority only. (Some
tion) errors make up the remaining third of the errors. Proper states may permit others to do so under supervision and written
prescribing amounts to several simple basics, the appropriate protocols.) Do not distribute samples without issuing full
drug, the appropriate dose, the appropriate directions, the ap- oral and written instructions.
propriate time of administration, the appropriate termination,
and the appropriate refill directions. Today the appropriate drug
category can preclude prescribing a drug ineffective or margin- WHEN THINGS ARE NOT GOING AS EXPECTED
ally effective for the patient’s diagnosis, a drug the patient is al- Physicians are used to seeing cases progress in a somewhat pre-
lergic to, or a drug with adverse interactions with another drug dictable manner. Some patients progress more rapidly than
that the woman is taking. The prescription of a drug can no lon- others, but, in general, the course of disease and treatment fol-
ger be thought of as something a physician does “off the top of lows a course that physicians are used to. When things take an
his head.” He needs help from an information base that can ex- unusual turn, physicians are prone to take one or both of two
plore the medical chart, drug interactions, recorded allergies, destructive courses. First, they irrationally get angry at the pa-
drug doses, and the most effective therapy, and then must trans- tient, or they lose perspective on the important issues.
mit a legible prescription for compounding. Therefore, the best
approach lies in an extensive electronic medical record and da-
tabase system that is updated at least monthly and that controls Physician’s Defense Strategy
prescription writing. Absent such a system we can only offer Hold your temper in check. A woman who is not progressing as
homilies. expected is the patient you need to have the best relations with.
Go out of your way to let her know that something unusual is
happening and what you are doing to solve the problem. Do
Physician’s Defense Strategy not blame her! Reevaluate your diagnostic reasoning and differ-
Type or block print all orders and prescriptions. ential diagnosis early. Check the chart, medication orders,
1. Prescriptions should always be written in duplicate or tripli- nurses’ notes, and medications given for possible errors. Request
cate (one for the patient, one for the medical record, and those cultures, chemistries, and imaging studies you thought you
one as your personal permanent record.) The patient’s copy could short cut. Do not reject the patient’s suggestions out of
should always be on safety paper. hand. If it will do no harm, the expense is not overwhelming,
2. Do not issue oral phone orders or call prescriptions to phar- and it is neither unethical or illegal, concede to her wishes.
macies; use the fax line. Do not let your ego get in your way. Get help early! Get a formal
3. Clear, unabbreviated syntax works best. Never use abbre- consultation, don’t just talk to someone in the doctor’s dressing
viations for drugs. room. Get the best help available! Don’t just ask a friend be-
4. Always use the leading zero; never use the trailing zero cause he will concur with what you are doing. Establish good re-
(0.4 = yes; .40 = no) lationships with quality consultants early; do not wait until you
5. Spell out “units” never use the symbol “U.” need them to help in a disaster.
6. Always specify drug strength and route of administration.
7. Avoid decimals whenever possible (1500 mg rather
than 1.5 g). CONCLUSION
8. Think carefully before you sign on the “substitution permit-
ted” line. (Generics may have blood levels that vary as much In the broadest sense, medical malpractice is defined by whether
as Æ 20% from the original. Therefore, if blood level is im- or not conduct and decisions were reasonable. The fear of all
portant, the potential variation of up to 40% from one refill physicians is that they will be judged ultimately by lesser-trained
to another should rule against a generic equivalent.) individuals, who identify more with the patient than the pro-
9. Use reasonable prescription pad security. Do not leave your vider. The tests of reasonableness they will utilize are often as
prescription pad exposed on your desk or in your examining simple as asking the question, based on the care and testimony
rooms. you provided, would the jurors be comfortable being treated by
10. Be careful of multipharmacy especially in the high-risk pa- you? If the answer to that is yes, regardless of the complications,
tient, and be alert to the use of multiple psychoactive drugs decision making, and outcomes, the most likely jury verdict will
including opiates. be in favor of the defendant physician. However, if the care ap-
11. Give your patients printed instructions (Several good sys- pears to be inattentive or inconsistent and the records or depo-
tems are on the market, don’t ignore the AMA Patient Me- sitions are inaccurate, the chance to explain your decision and
dicinal Instructions or the USP Dispensing Information), do the reasonableness you feel is behind it may be lost through
not depend on the nurse or pharmacist. no one’s fault but your own.

8. 112 Part I B A SI C SC I E N C E
Breakdowns in the systems of communication—with pa- many problems can be avoided or quickly resolved. Awareness
tients, care providers, or through the medical records—can cre- that your patients will have serious questions about unexpected,
ate a host of problems for physicians, nurses, and health care often life-altering outcomes is integral to avoiding legal prob-
institutions in the event of an unfavorable treatment outcome. lems. Only when a patient feels that he or she has not received
By focusing attentively on both system-wide and individual best satisfactory answers from care providers will the patient seek
practices for accurate and contemporaneous communications, those answers elsewhere—most likely from an attorney.
REFERENCES CAN BE FOUND ON
EXPERTCONSULT.com
SUGGESTED READINGS
American College of Obstetricians and Gynecologists: Coping with the stress of medical professional liability Nygaard I: What does “FDA approved” mean for
Expert testimony: ACOG Committee Opinion litigation. ACOG Committee Opinion No. 406, medical devices? Obstet Gynecol 111(1):4–6, 2008.
No. 374: American College of Obstetricians and ACOG, Obstet Gynecol 111:1257, 2008. Richardson DA: Ethics in gynecologic surgical inno-
Gynecologists. Washington, DC, Obstet Gynecol Erickson TB, Buys EA, DeFrancesco MS: Report of the vation, Am J Obstet Gynecol 170:1–6, 1994.
110(2 Pt 1):445–446, 2007. Presidential Task Force on Patient Safety in the Of- Wall LL, Brown D: The perils of commercially driven
Baker T: The Medical Malpractice Myth, Chicago, fice Setting, Washington, DC, March 20 2010, surgical innovation, Am J Obstet Gynecol 202
2005, University of Chicago Press. ACOG. (1):30, e1-e4, 2010.
Charles SC, Frish PR: Adverse Events, Stress and Mann S, Pratt S: Role of clinician involvement in
Litigation: A Physician’s Guide, New York, 2005, patient safety in obstetrics and gynecology, Clin
Oxford University Press. Obstet Gynecol 53(3):559–575, 2010.