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How you can steer clear of a malpractice lawsuit

Experts say the keys are documentation and talking to patients when you make a mistake

From the November 1999 ACP-ASIM Observer, copyright 1999 by the American College of Physicians-American Society of Internal Medicine.

By Christine Kuehn Kelly

If you're like most residents, you've heard the malpractice horror stories. There's the $5.6 million settlement in a Massachusetts General Hospital case where a resident and attending missed a cervical fracture of a patient's spine. Or the Kansas City case, still in litigation, where an emphysema patient died when her portable oxygen supply ran out and the resident didn't notice.

While you're not likely to get involved in lawsuits like these, experts estimate that roughly 40% of inpatient malpractice complaints name residents. Those odds are balanced by the fact that eight out of 10 malpractice cases get settled before they come to trial, but they still mean that residents need to take liability issues seriously.

See also:
  • Observer articles by Subject: For Residents
    (March 1995-November 1999)

"You may have the sense you are still in training, but that doesn't fully protect you from malpractice suits," said Tim J. Corbin, ACP-ASIM Associate, chief resident at Scripps-Mercy Hospital in San Diego. "Even though you are still learning, you can be named in a lawsuit and end up with your name in the National Practitioner Data Bank."

Besides sullied reputations, residents need to think about the financial implications of being sued. "Residents understandably worry that an adverse finding in today's litigious climate will end up affecting their ability to meet debt obligations," said Gregory A. Hood, ACP-ASIM Member, a general internist with the Southern California Permanente Medical Group in San Diego.

The law defines medical malpractice as a breach of the standard of care that directly causes injury to the patient. In short, the standard of care is defined as what a reasonable physician would do with a same or similar patient under the same or similar circumstances. When malpractice is alleged, a jury will determine whether the standard of care has been breached. In court, the plaintiff and defendant both present experts to establish what they view as the standard of care. The jury ultimately decides which experts to believe—thereby determining the standard of care—and then decides whether that standard was met. It is important to note that juries often differentiate between a reasonable standard for residents and attendings.

If an attending's signature never appears in your records, you're asking for trouble.

Occasionally, an attending may try to shift all the blame onto the resident. "In one situation, a pediatric resident needed to do an exchange transfusion on a baby, and had never done one," recalled Elizabeth Mulvey, JD, an attorney with Lubin and Meyer in Boston. "The resident called the attending in the middle of the night and was told to 'go look it up.' The resident still got the formula wrong and drained out 80% of the baby's blood, causing loss of portions of both arms and legs." The attending blamed the resident for misreading the textbook and refused to share the blame. Both were found guilty of malpractice, however.

So how can you lower your malpractice liability? Experts say that good record-keeping and communication with patients are two of the best ways to steer clear of malpractice problems. Here are some pointers to keep you out of the courts, and to help you win your case if you're sued:

Document your work. Good documentation is vital for protecting yourself, according to Dr. Corbin from Scripps-Mercy. "Document the full exam and history," he said. "Have the attending there to document the important aspects of the exam. And make sure the attending reviews your work."

If an attending's signature never appears in your records, "you are begging for a problem," said Lee Dunn, JD, a Boston lawyer who specializes in health care litigation. Patients don't come to your institution to be treated solely by residents, so make sure your attending signs off on the progress notes and order sheets as appropriate.

Also make your records as thorough as possible. "Residents sometimes forget to document that they spoke to a senior resident or attending," said attorney Ms. Mulvey. "When it comes to a trial, they know they must have done it, but they can't prove it."

Don't be tempted to change a record after the fact, even if you finally remember a conversation you had with an attending. An altered record can prove fatal to your defense.

"Residents also can get into trouble by including subjective information in the record," explained Stephanie Unger, JD, the College's chief legal counsel. She suggested being careful about statements such as, "I tried to call several times, and no one was there. They are always late." Instead, she said, document that you called at 2 p.m. and 4 p.m. and never got a response. "Finger-pointing is one of the quickest ways to get in trouble," she noted.

Disclose errors. Good doctor-patient communication is one of the most effective ways to ward off malpractice suits. When something does go awry, full disclosure is best, said Albert W. Wu, ACP-ASIM Member, associate professor of health policy and management at Johns Hopkins University in Baltimore.

'If anything makes you uncomfortable, or you can imagine a headline describing it, share the information with the patient'

Albert Wu, ACP-ASIM Member

"First, create an expectation of shared decision-making and involve the patient in decisions throughout treatment," he said. "If something does go wrong, the patient will be less likely to blame you. Disclosure is also likely to minimize the patient's anger and if compensation is ultimately necessary, decrease the amount. Equally important, it's the ethical thing to do."

Though such candor may be the best approach, it's hardly common practice. A study by Dr. Wu that examined medical mistakes by residents found that less than a quarter of residents discussed mistakes with patients or patients' families. Housestaff reported discussing the mistake with an attending in just over half of the cases. (The study was published in the April 24, 1991 issue of The Journal of the American Medical Association.)

How much disclosure is enough? "You don't need to talk about every inconsequential happening or a minor mishap that almost happened," Dr. Wu said. "But if anything makes you uncomfortable, or you can imagine a headline describing it, share the information with the patient."

Work with your legal office. When you make a mistake and have discussed it with the patient and done what you can clinically to correct it, go directly to your legal office or risk management department. Talking to the legal department promptly about a problem allows your institution to investigate while the details are fresh in everyone's mind.

"Don't fear the legal department," said Kelly A. Gebo, ACP-ASIM Associate, a second-year fellow in infectious diseases at Johns Hopkins. "They are there to help you."

Beware Internet information. Because of the amount of bogus medical information on the Internet, residents need to be cautious when patients talk about their favorite Web sites. "If they can establish they talked to you about the site, you may be liable when there is a problem," Dr. Hood explained. He regularly gives patients a handout he created warning about the downsides of gathering information on the Internet.

In the same vein, you'll need to use caution when patients bring up alternative and complementary therapies. "I explain that alternative therapies are not regulated by the FDA and there is no guarantee of their efficacy," Dr. Hood explained. "If I know of a potential interaction, such as between ginkgo biloba and warfarin, I warn the patient and document the discussion."

Make sure you're covered when moonlighting. Working a second job can expose you to liability. When residents moonlight, they may lose the coverage that their residency program provides.

"It's easy to forget to check whether your insurance coverage applies everywhere you are employed," said Ms. Unger, the College's legal counsel. "If you're in a hospital-based setting, it's likely the hospital will be savvy enough to make sure you are covered. But if you are working in an urgent care facility or a clinic, you may need to have additional coverage."

In some cases, residents who are moonlighting function as supervised residents; in other cases, they act as attendings. The latter is legally valid, explained Ms. Unger, as long as the resident has obtained a full license to practice medicine. From a liability standpoint, a resident acting as an attending is held to the standard of care of an attending in the same situation, which is usually a higher standard.

Get your own counsel. If it looks like you are going to get sued, warned Reid Holbrook, an attorney with the Kansas City firm Holbrook, Heaven and Osborne, it's important to make sure you have your own counsel.

"The insurance companies like to save money by having only one lawyer for attendings and residents," he said. "Your interests may not be the same, however." If you are successful in getting your own attorney, make sure the counsel assigned to you is an experienced malpractice lawyer. *

Christine Kuehn Kelly is a Philadelphia-based freelance writer specializing in health care.

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