Sue jones graphic lawBy Sue Jones

Our society is litigious, and malpractice lawsuits—some justified, others not—show no sign of slowing down. Research recently published in JAMA: Dermatology showed that lawsuits related to cutaneous laser surgery are actually increasing and indemnity payments are exceeding previously reported averages. In fact, of the 120 cases with public decisions, 61 resulted in decisions in favor of the plaintiff, and the mean indemnity payment was $380,719.

Still, getting sued is not a given. Practicing defensible medicine and making sure appropriate checks and balances are in place will not only protect patient safety, they will also protect your practice from steep indemnity payments.

A review of claims data by the Cooperative of American Physicians Inc during the past several years shows a pattern of five risk management areas that are essential in reducing the likelihood of getting hit with a malpractice suit.

They include:

1) Communication

Very often when a claim is filed, one will hear a patient say, “The doctor never told me,” or, “Had I understood,” or, “Had I known.” Good communication preserves the doctor/patient relationship. Patients are relying on your advanced knowledge and expertise in explaining the risks, benefits, and alternatives to a treatment/procedure.

2) Documentation

Five Questions to Ask Yourself Before Scrubbing in for Your Next Procedure

1) Is the setting appropriate?

2) Is the practitioner licensed to
perform the procedure?

3) Is there informed consent?

4) Did you fully explain all risks
and benefits to the patient?

5) Are you sure there are no contraindications?

If the answer to all these questions is yes, you are practicing defensible medicine and are less likely to get hit with a malpractice suit and a steep payout.

Equally as important as good communication is detailed documentation. This needs to be completed with each patient visit and also be paired with the informed consent discussion. It is not enough to document “patient understands” or “informed consent obtained.” This very loose wording does not support the physician’s rationale for the treatment/procedure or the fact that a discussion even took place. This conversation and its documentation should cover the nature of the treatment/ procedure, the risks involved, the possible complications, the expected benefit(s), and the alternatives, including doing nothing. When a claim is filed, the medical record becomes a key source of information. In the study of lawsuits related to cutaneous laser surgery, the most common preventable cause of action was failure to obtain an informed consent.

Better safe than sorry, so if you are not sure the patient fully understands the risks and/or benefits of the procedure, explain them once more.

3) The Appropriate Patient

During the consultation, make sure there are no contraindications and that the patient has realistic expectations about what the treatment can, and can’t, do. The patient also needs to receive pre- and post-treatment/procedure instructions which include follow-up care.

4) The Appropriate Setting

Make sure the location chosen is the appropriate setting for the treatment, and that there are proper procedures in place to treat potential complications should they occur.

5) Practitioner Scope of Practice

The physician should maintain current licensure and training of staff to avoid a claim of negligent supervision. In the JAMA: Dermatology study, nonphysician operators accounted for a substantial subset of the cases, with physician supervisors named as defendants even
though they did not perform the procedure.

It’s difficult to predict whether a given patient will file a claim or not. When good care is well documented and protocols are followed, good medicine is defensible.

Sue jones bio

Sue Jones is a senior risk management and patient safety specialist at the Cooperative of American Physicians Inc, based in Los Angeles.