Preventing and protecting against lawsuits
Beyond documentation and a Q/A with a lawyer
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Notes are “the witness that never lies or dies” as they say. They are your best friend, or worst enemy, in lawsuits. And in our increasing litigious society, lawsuits are an unfortunate reality that you must be prepared for.
For this issue, I’m stretching beyond the bounds of documentation. In my Q/A with a lawyer, he told me something that seems obvious…but many need to internalize:
“You should practice in a way that causes your patients, and everyone you work with, to like you. This will help you avoid litigation.
Some naturally work well with others and have good bedside manner. For those who don’t, there are skills that can be taught and learned. The list below are techniques we can likely all work on.
The Soft Skills
Sit. This doubles your perceived time in the room. A top complaint by patients is not enough time with the doctor. You can hack this by simply sitting. This also puts you “equal” with the patient, not talking over them.
Call. During Covid, with family unable to visit, our hospitalists program enacted a policy that we had to call a family member of every patient every day. “Wow…we should probably have been doing this all along” a colleague said. The hospital saw a sudden DROP in patient complaints. While calling for every patient long-term is unrealistic, the benefit of calling patient’s family members is clear.
Ask, “What questions do you have?” rather than “Do you have any questions?” at the end of your visit. It’s a subtle difference, but the former communicates that I expect them to have questions and care about answering them. The latter, especially if you seem rushed, can come off as inauthentic.
Introduce yourself. This shouldn’t need to be said, but I recently posted about this on twitter and clearly struck a nerve. In the hospital, introducing yourself daily is often helpful.
My wife has had 3 doctors in a row walk in and not introduce themselves.
Are we that lost in medicine?
I understand being busy, I'm a hospitalist, but I still have 5 seconds to introduce myself / confirm the patient's name.
— Robert Oubre, MD | The Doctor of Documentation (@Dr_Oubre)
Oct 2, 2023
Use the patient’s name. As Dale Carnegie famously said, “Names are the sweetest and most important sound in any language.” Also, confirming how to say their last name, if it’s not one of which your familiar, is an extra step in establishing trust.
Acknowledge others in the room
Mention the NAME of other doctors that are caring for them (that either you’ve talked to them, reviewed their note, etc)
Smile. Listen. Affirm their experiences (“That sounds difficult…”)
Follow up on promises. This was an unfortunate jaded joke in training. “Tell the patient you’re going to do something to get out of the room.” No. Tell them what you’re going to do, when they should expect for you to do it, and then do it. From getting them ice to following up the results of a scan.
Establish a team-work mentality. “We’ll figure this out together…”
Be approachable to nurses. Nurses are your eyes and ears when you’re not around. Establish trust with nurses and allow them to be comfortable asking you questions and bringing up concerns. They can stop errors and identify clinical status changes early.
I could keep going, but there are entire courses on this. Those above are some of the basics.
Back to documentation, there are two ways I think about this:
Keeping the lawyers away in the first place
Documentation to protect you in case of a lawsuit.
Keeping the Lawyers away
As Benjamin Franklin said, “An ounce of prevention is worth a pound of cure.” I’ve discussed this idea in many of my newsletter issues:
Use your note to help you think and stay organized to prevent medical errors.
Don’t document things you didn’t ACTUALLY do such as pre-populated physical exam templates and auto-populated labs and radiology reports that significantly increase your chances of documenting inaccuracies or documenting results you didn’t actually review. This study specifically quoted reliance on templates and forms as a problem leading to lawsuits.
Structure your notes to avoid copy/forward errors (which can lead to medical errors)
Avoid acronyms that may be misunderstood. “NOAC” = Noval Oral Anticoagulant if written as “NO AC” could be interpreted as “No anticoagulation.”
If you get sued
“Think in ink” Documenting your thoughts not only helps YOU think through the case, but in a lawsuit would convey your thoughts. Even if it’s determined that your thought process was “incorrect” or “incomplete,” this documentation, especially differential diagnoses you considered but ultimately didn’t pursue any why, would go a LONG way in showing that you were not negligent (aka, you didn’t ignore certain considerations).
Your documentation helps you refresh your memory, which could be many years in the future.
Be specific. Don’t just document “RBA discussed.” Document which risks, which benefits, and which alternatives were discussed. Don’t just document “Discussed with cardiology.” State which cardiologist you spoke with, what you told them, and what they told you. Many trials have doctors pitted against each other because documentation was non-specific in what exactly was discussed.
Copy/pasting others work, such as a hospitalist copy/pasting the ER HPI, could be used to suggest you didn’t interview the patient yourself. Don’t do it.
I asked Eric, with The Expert Witness Newsletter, his recommendations. He emphatically recommends that doctors “NEVER, never never go back and alter the chart after a bad outcome occurred.” Even if what you add is factual, it’s incredibly bad for your defense and it’ll look like you’re covering something up.
Straight from a Lawyer
I did a Q/A with a lawyer. I’ll just cut out the middleman and share the exact Q/A.
Q: We often hear the advice, "If it wasn't documented, it didn't happen." Is there any nuance or further input you'd like to add to that?
A: Everyone needs to internalize this mantra. Not just from a malpractice standpoint which is crucial. Doctors, nurses, med students need to be able to do something immediately or have a system that will cause them, within the appropriate time period, to act as needed.
It’s best to write/dictate notes in real time or as close to the time after the visit as possible. Documenting too late is suspicious.
Q: Are there any words that are particularly problematic? Helpful?
A: “Attempted”. “Left a message.” Depending on how important, a provider has to make sure that the specialist or other doctor is made aware of the important test result, change in condition, etc. Imperative the content is conveyed to the right person. As far as helpful, specificity in documentation increases the provider’s credibility.
Q: Have you seen cases that were won or lost purely on documentation?
A: I would say there have been many cases where documentation was a major factor in victories for the patient and same with cases where the provider won. A doctor lost a case where he failed to ensure the patient knew he had to return for a significant test in 2 weeks. The patient claimed to never know that he had to return for a test. The doctor should have had a system where his office called the patient and then documented the file. There was no note about efforts to reach patient. One call and leaving a message is not enough. (Technology has improved so an automated text message should be sent to make sure the patient got the message.). In a different case where a doctor prevailed, the doctor had excellent notes with direct quotes from the patient where the patient admitted a delay in getting care that would have likely changed the negative medical outcome.
Q: Sometimes we have bad interactions with patients that involve cursing, yelling, etc (from the patient). How should we document in these situations?
A: Anytime you can include specificity you should, especially with a difficult patient. Doctors are humans too and it is important to not let negative emotions change care. Difficult, unlikable patients are also entitled to non-negligent medical care. The more the file is documented showing how the patient is unlikable, the less attractive the file is to a plaintiff’s attorney and the more likely the case will be resolved early in the event it is initiated.
Q: Any general recommendations for doctors' documentation? Do's and Don'ts?
A: Document everything. Be specific. When you are specific you are showing a reviewer that this patient was an individual. If something unusual occurs, and there was a nurse or someone else in the room with you, document that individual so he/she could help in the future. Remember that you have to look out for yourself. If you are a hospital employee, do not allow that relationship to change the way you document.
Q: Is there a common thread you see amongst medical malpractice cases that would be important for doctors to know?
A: If you have bad bedside manner, your chances of getting sued are significantly greater than if you have excellent bedside manner. If you are not honest with your patient, the patient will likely figure it out and will have hostility towards you and likely be more open to trying to sue you. If you make a mistake, the best thing you can do is tell the patient and at the same time offer the solution to how to fix it. Too often I have seen surgeons tell the patients that the surgery went great when it is obvious that it did not. This is short-sighted and it may delay litigation for 6 months or a year but eventually the patient will figure out you lied to him and that will cause him to get an attorney to try and sue.
Q: Any general advice regarding litigation?
A: Litigation stinks. No question about it. Doctors should look at it as a cost of doing business and try to not take it personally (much easier said than done). There are certain areas of medicine where you are likely to get sued multiple times in your career. That does not mean you are not a good doctor. After being notified that you will be sued, when the initial shock wears off, take a deep breath and have a plan of action. Your plan will be based on your insurance coverage and who has control in making settlement decisions. If I am advising doctors, I tell them to get it over with as soon as possible because it puts too much stress on your life and it is best to put it behind you (kind of like a divorce).
The best way to avoid litigation is to have good relationships with your patients, and be honest with them when the result is less than anticipated. If and when you explain the bad result, have at the same time the solution to offer them.
Juries like doctors. Juries know that doctors are trying their best. You should practice in a way that causes your patients, and everyone you work with, to like you. This will help you avoid litigation.
Thanks to Julie Hobson, RN, CLNC, for her additional insights.
That’s all for now. I hope that was helpful.
Please feel free to reach out and ask questions as they help inspire future issues!
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