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Steering clear of malpractice problems in residency

While housestaff aren't generally included in lawsuits, there strategies to help you play it safe

From the September ACP Observer, copyright © 2003 by the American College of Physicians.

By Christine Kuehn Kelly

Medical liability insurers are abandoning markets, malpractice rates are skyrocketing, and malpractice settlements and verdicts continue to reach new levels. It's no wonder that liability insurance is very much on the minds of many physicians, including residents.

A recent survey by Merritt, Hawkins & Associates, a Texas-based physician staffing firm, found that 62% of medical residents had a "significant" concern about malpractice issues. That number was up from 15% of residents in 2001.

Lawyers, however, say that the threat of malpractice is probably not as dire as most residents think. In part, that's because residents don't have to meet the same legal standard as practicing physicians. They can also protect themselves by establishing relationships with program directors, chief residents and attendings.

Here's an overview of some liability issues that residents face, as well as some tips to help housestaff stay out of trouble.

The best defense

The law defines medical malpractice as a breach of the standard of care that directly causes injury to the patient. The standard of care in turn is defined as what a reasonable physician would do with the same or similar patient under the same or similar circumstances.

Most malpractice suits involve errors in diagnosis, particularly missed diagnoses for myocardial infarction, breast cancer, appendicitis, lung cancer and colon cancer. Overall, doctors win 70% of tried cases, but that figure doesn't include suits that are settled out-of-court because the malpractice was so egregious.

The good news is that residents aren't usually named in malpractice suits unless they have really dropped the ball, according to Lee Dunn Jr., JD, a Boston attorney who specializes in health care. And if a malpractice claim is made against a resident, the physician-in-training will be judged against the professional conduct and competence expected at that level of residency.

"Making a mistake that other doctors could make would not make you guilty of malpractice," Mr. Dunn said. "The malpractice cases I see stem from physicians' not being attentive enough."

The best defense against malpractice is practicing good medicine. In the eyes of many courts, following evidence-based guidelines can go a long way to establishing that you are in fact a good practitioner.

"If you are involved in a lawsuit," said Thomas J. Hurney Jr., JD, a lawyer with Jackson Kelly PLLC in Charleston, W.Va., "your case may be measured by these guidelines."

Here are some other suggestions from legal experts about how you can reduce your risk of making mistakes that lead to lawsuits:

  • Take a look at your training environment. It's important to step back and take a hard look at your department and find the unwritten rules that may affect your risk for being sued down the line.

    For example, do some attendings take certain patients for themselves, making it hard for you to be involved in the tough clinical cases that you need to learn? Are you getting the level of training you need and expect? If not, you may be exposing yourself to less-than-optimal learning that can lead to a greater likelihood of errors being made.

    Also make sure to evaluate the competence of the nursing staff and other health care providers. Are they good enough to rely on, or might they expose you to liability?

  • Know your boundaries. "Understand your limits as a resident," said Phil Hemstreet, ACP Associate, a cardiology fellow at the University of Texas-Houston. "The best residents push themselves, but they know when they are at their limits." If your inner voice tells you to take a step back or your palms start getting sweaty, it's probably time to get help.

    If you spot a potential problem, talk to your program director or chief resident. Dr. Hemstreet, who was a chief resident at Baptist Health System in Birmingham, Ala., said he always appreciated it when residents came to him early with problems so he wasn't blindsided when problems turned out to be serious. Also consider contacting your institution's risk management department when trouble arises.

  • Establish patient rapport. Open communication is key to dealing with patients and families—and protecting yourself against being sued.

    "Family members can get frustrated trying to understand care, especially when a loved one is in the ICU," explained Sara Wasserbauer, ACP Associate, a second-year resident at Exempla St. Joseph Hospital in Denver and a member of ACP's Council of Associates. "Give them the details they need so they don't have to get attention in other ways."

    When you tell them why a patient is being intubated, for example, explain why the tube is taped to the patient's face. Be prepared to answer family questions over several visits.

    And if something goes wrong, know when to sit down with the family. At some point, you will need to tell them the truth—although not necessarily directly after a tragedy. Look to attendings for advice on how to communicate your regrets without putting yourself at legal risk.

  • When it comes to charting, follow hospital policy. If your hospital's policy says you should chart once daily and you don't have a progress note in the record, a jury may infer that you weren't even in the hospital.

    "If a lawyer can demonstrate to the jury that charting is sloppy or inadequate," Mr. Hurney explained, "then the trial is less about medicine and more about the doctor's credibility."

    And if you do a procedure but don't write it up for weeks, he added, "I guarantee the prosecuting attorney will attack you on your recollection of the case."

  • Document, document, document. Adequate documentation is one of the most critical ways to establish quality of care, especially when claims arise years later. A well-documented medical record will show you gave careful thought to the case.

    Make sure you write enough so that others can understand your thought processes in arriving at a differential diagnosis and treatment options. Include other relevant details: Did a traffic jam keep you from getting quickly to the hospital when on call? Did you try to phone family members but couldn't get through? If you don't write a note in the record, there is no way you will be able to recall details a decade later.

  • Connect with nurses. Take time to read nurses' notes and ask them about patients, and always respond when nurses say you need to see a patient. "Don't hesitate," Mr. Hurney said. "Nurses should be your eyes and ears when you aren't on-site."

  • Use a lawyer. While most residents never talk to a lawyer, it's a good idea to have a relationship with someone in case you need legal representation.

    At the very least, you should probably use a lawyer to review your employment and insurance contracts. Medical institutions and insurers often write contracts that favor and protect themselves, Mr. Dunn said.

    For example, he said physicians should never sign a contract that includes the word "indemnification." That clause could make you, not the institution, liable for any malpractice settlement and court costs.

    To find an attorney who is familiar with medical law, contact your state or local medical society or your state bar association.

  • Advocate for malpractice reform. Finally, physicians and lawyers alike point to another essential safeguard: advocating for malpractice reform.

    "Get involved in organized medicine at the grassroots level," said Dr. Wasserbauer. If physicians don't take a stand on reform, she pointed out, they run the risk of having their careers seriously affected by malpractice claims.

    Besides, she added, studies have shown that physicians who are active in their communities are less likely to be sued by irate patients and their families.

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

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