Medical Malpractice and the Primary Care Provider
Although all healthcare providers are at risk of being sued as part of a medical malpractice case, only a minority of healthcare providers have had the uncomfortable experience of actually being sued.1 Medical jurisprudence is not taught in most medical schools or residency programs, so most healthcare providers enter a medical malpractice case for the first time with little or no knowledge of what will happen and what is expected of them. Using an illustrative case, this article will lead the reader through the course of a typical malpractice case, giving advice on how to prepare for and strengthen your defense. Risk management strategies will also be discussed.
Mr. Jones is 84 years old. He has a history of atrial fibrillation, congestive cardiac failure, and a distant history of a seizure disorder. He is taking warfarin, atenolol, furosemide, and phenytoin. His international normalized ratio (INR) is tested approximately every three weeks, and he is consistently in the therapeutic range of 2-3. After discussing the issues with the patient, you decide to discontinue his phenytoin. Two weeks later, Mr. Jones is admitted to a local emergency room because of a stroke. The computed tomography (CT) scan shows a large cerebral infarct, and his INR is 1.1. The patient dies the following day. Three months later, you receive notification that you are being sued for malpractice. The patient’s son has contacted a plaintiff attorney. They contend that inadequate monitoring of the patient’s anticoagulation status led to his stroke and subsequent death.
The Litigation Process
Four criteria must be met for malpractice litigation to have merit2:
1. Did the named individual or institution have an established duty or obligation to perform a particular service or provide care to an individual?
2. Was there a breach of this duty that fell below the applicable standard of care?
3. Was there an injury to the individual that occurred?
4. Was there a proximate cause that links the breach of this duty directly to the injury being alleged by the plaintiff?
A patient or a patient’s family member(s) may approach a plaintiff attorney if they feel that poor care has resulted in a bad outcome. The plaintiff attorney will review the case and decide whether to proceed with the suit. Most states have a state-specific statute of limitations governing how soon a case needs to be filed after the alleged malpractice occurred. In Connecticut, for example, the case must be filed in most instances within two years of the occurrence.3 Most plaintiff attorneys work on a contingency basis and will only proceed with the case if they believe it can be won or settled.
In the case outlined above, the plaintiff attorney has a nurse on staff who reviewed the case and felt that there was sufficient evidence to proceed with a suit. The patient’s son was upset that the attending physician did not call and explain what had happened at the time a stroke occurred.
The plaintiff attorney will file a Complaint with the court. The practitioner will then be served a legal Summons by the court, which will outline the allegations. At this point, you should contact your professional liability insurance company. A default judgment could be entered against you if your legal council does not respond soon enough. Do not answer the Complaint on your own. Do not contact either the plaintiff or the plaintiff attorney. Be careful about to whom you talk regarding the case. Only your discussions with your attorney as designated by your professional liability carrier are confidential. Colleagues and others who are close to you could be called to testify if you have discussed the case with them. Peer review within an organizational structure may be protected from subsequent disclosure, but informally discussing the case with a colleague, supervisor, or administrator will not. Your review of the medical literature, if you conduct such a review after learning of the case, including notes that you make, is also discoverable (ie, it can be requested by the plaintiff attorney).
Medical malpractice cases can proceed for many months, and sometimes years. Both plaintiff and defense attorneys will want copies of pertinent medical records. Both will usually seek to depose fact and expert witnesses. The healthcare provider being sued will almost certainly be deposed at the request of the plaintiff attorney. This is a process where you will be asked questions under oath. This is also an opportunity for your defense attorney to ask you questions under oath. Attorneys representing other parties may also be present and may also ask you questions. The deposition usually takes place in an attorney’s office, but has the same significance as if this were occurring in a courtroom with a judge and jury present. A stenographer is usually present, but in some circumstances video testimony is recorded.
Before going to the deposition, make sure that you review the records in detail. Be careful about putting tabs on the records. You may be asked to explain why you have done so. Be careful about making a summary of the record, especially if the summary contains comments or opinions on what occurred. These notations are not privileged information. You may be asked about them, and they may be marked and entered as evidence. Organize the records so that they are in chronological order. You should meet with your defense attorney before the deposition. Answer only the questions you are asked. Do not volunteer information. Take your time before answering a question; your own attorney may want to record an objection. Listen carefully to the questions. If you don’t understand a question, ask for it to be rephrased. If you need a break, ask for one. It is a good idea to avoid interruptions, so ask someone else to answer pages and calls for you during the deposition. Do not react angrily, even if you feel that your honesty, character, or professional qualifications are being questioned. Answer the questions you are asked honestly. You are under oath, and to knowingly make a false statement during the course of the deposition is a legal offense.
The plaintiff and defense attorneys will usually retain the services of expert witnesses. Expert witnesses are called upon to give opinions on the care delivered, and to defend or refute the assertion that there was a deviation from the widely accepted standard of care (defined as treatment that experts agree is appropriate, accepted, and widely used). The outcome of a case often hinges on these opinions and the expert witnesses’ testimony. Your defense attorney will go to the expert witnesses’ depositions, but you will not. You should make no attempt to contact any of the plaintiff’s expert witnesses. The plaintiff and defense attorneys will avoid retaining a witness who works with you or knows you well.
In this case, both an expert witness hired by the plaintiff and an expert witness hired by the defense gave the opinion that there was a deviation from an acceptable standard of care, which was highly likely to be a contributing factor in the occurrence of a stroke. The withdrawal of a highly protein-bound medication such as phenytoin resulted in a lower-than-normal serum level of warfarin, with a resulting decrease in anticoagulation effect, and the physician’s failure to monitor the adequacy of anticoagulation was the proximate cause of the patient’s injury (stroke).
There may be a request for a negotiated settlement of the case before it reaches a trial. Depending on the circumstances, it may be in your best interests to agree to a negotiated settlement. You should, however, know the extent of your malpractice coverage and be sure that the amount being negotiated will be covered. A negotiated settlement of the case may have implications for your future malpractice coverage, your medical privileges, and your future participation in medical insurance plans. It is a good idea to discuss with your current malpractice insurance company its approach to requests for injury settlements. Medical malpractice cases are expensive to defend, and your carrier may seek to settle to reduce the ultimate costs to them.
If there is a trial, you will be asked to testify. You should once again review the medical records. You should review the transcripts of your deposition and the depositions of all other witnesses. You should meet with your defense attorney. Attend the trial every day, even if you are not scheduled to give testimony. Avoid appearing arrogant or condescending. Dress appropriately; do not wear a white coat.
Risk Management Strategies
Risk management strives to reduce the likelihood of a malpractice case occurring. It involves the use of specific skills and interventions to reduce lawsuits. The most common reasons for healthcare providers to be sued as part of a medical malpractice case are: (1) an untimely or inaccurate diagnosis, (2) inadequate treatment, and (3) inadequate monitoring of care.
Many aggrieved patients and family members cite poor communication with their healthcare provider as a primary reason in their decision to sue. Time constraints may cause some providers to avoid explaining an illness, change in condition, or test result to the patient, family member, or guardian. Take the time to communicate with the patient, or call the patient’s guardian when there is a significant diagnosis, change in condition, or inadequate or unexpected response to current treatments. Be sure to outline the potential complications associated with prescribed medications or treatments. Ensure adequate follow-up, and implement policies and procedures for your office to ensure that abnormal test results are triaged and managed appropriately. It is also important to ensure that there are mechanisms in place to triage and manage calls received by the office from patients and other healthcare providers. Ensure that charting and documentation is accurate and complete. Reiterate with covering physicians the importance of communicating significant changes in the patient’s condition with the patient’s primary care provider. Set some guidelines with nursing homes and assisted living facilities regarding notification of a change in the patient’s condition. Empathy and compassion are important components of good care and risk management.
It is difficult for physicians to admit that they were wrong or to apologize for their behavior. Some states have introduced laws that promote the open discussion of errors and encourage healthcare providers to express regret and sympathy in the event of an adverse outcome. Such admissions may be protected from inclusion in a medical malpractice case, and not be considered an admission of guilt.4,5
Documentation of Care
Documentation of care is important when justifying professional charges, but it is also important for ensuring accurate communication between healthcare providers. Although documentation is not an exact measure of the quality of care provided, the defense of a medical malpractice case is made more difficult when there is inadequate, incomplete, or illegible documentation. Take the time to fully document the care provided, including discussions that may have taken place regarding the appropriate plan of care and follow-up arrangements. This is particularly important when addressing areas of care that are known to be high risk for the subsequent occurrence of a medical malpractice case. Document the communication of significant changes in a patient’s condition received by the physician or the physician’s office from another healthcare provider or healthcare facility. Document the response of the physician or the physician’s staff to the notification of the significant change.
Prevention, Treatment, and Management of Clinical Conditions
The prevention and treatment of pressure sores, the management of anticoagulation, the adoption and use of widely accepted standards for preventing disease, and the timely diagnosis and treatment of acute medical conditions are areas of high malpractice risk for physicians who manage the care of older patients.6-8 Warfarin is a potentially dangerous medication. Close monitoring of its anticoagulant effect is necessary, and the prescriber needs to be aware of potential interactions with foods and other medications. The case described above highlights the serious complications that can occur when warfarin treatment is mismanaged. Your office should have policies and procedures in place to address the prescription and monitoring of warfarin. These policies and procedures should encompass the use of this medication by patients who may reside in a nursing home or an assisted living facility.9 There are standardized nomograms that can be used to facilitate the use and monitoring of warfarin therapy.10
Disease prevention recommendations are another high-risk area. Primary care practices should consider incorporating a disease prevention and health promotion checklist into the patient’s medical record. Recommendations should be documented and should be consistent with widely accepted standards of care.11 Many screening recommendations and guidelines are moving away from having age alone determine when a screening recommendation should be discontinued.12 Not all practice guidelines are suitable for the care of older patients with complex medical conditions.13 When a physician makes a recommendation that is counter to a widely accepted guideline, he or she should indicate in the medical record why the recommendation was made. The healthcare provider should also discuss his or her reasoning with the patient or the patient’s legal guardian.
Many physicians who manage the care of older patients rely on input from nurses and other healthcare professionals who also provide care for the patient at his or her home or at a healthcare facility. Calls regarding these patients received by the physician’s office or by covering physicians may be considered bothersome and unnecessary by the person receiving the call. Inappropriately managed calls can lead to mistakes and poor health outcomes.14 Physicians should establish policies and procedures regarding the notification of abnormal test results, adverse events, changes in condition, prescription refills, and other inquiries. Calls that are not urgent or that arise because the nurse or healthcare facility is obligated to notify the physician of an event should be directed to the office by fax, voicemail, or e-mail. Direct phone calls to the office—and especially to the on-call service—should be reserved for situations where the nurse or facility needs the physician’s input immediately. Reserving this mechanism of notification for important changes can help the covering physician give the matter the attention it deserves.
Good medical practice with an emphasis on communication is congruent with the principles of risk management. You should be aware of those aspects of geriatrics medical practice that are most likely to lead to a medical malpractice claim. Inadequate time is probably the greatest threat to providing quality medical care. Unfortunately, being pressed for time is not an acceptable defense strategy in a medical malpractice case. Take the time now to review your office policies and procedures pertaining to the high-risk areas listed above. Most medical malpractice cases can be prevented. If you are sued, seek legal representation as soon as possible. Discuss the details of the case with only your defense attorney. Take the time to participate in your own defense.
Dr. Coll is Professor of Family Medicine, University of Connecticut Health Center, Farmington.
The author reports no relevant financial relationships.
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