Reduce the risk of suit with the four “Cs” | Virginia Medical Law Report (2024)

Medical malpractice litigation impacts health care providers in varying significant ways. There is much discussion about defensive medicine, unnecessary tests and procedures, and the economic and emotional toil of malpractice litigation. Like the weather, many lament without doing much about it. Most providers today carry a cloud of worry and stress about what litigation might mean to their professional reputation, ability to practice, insurance rates and self-esteem. A personal action plan to help reduce your exposure should allow you to lighten the skies and lift that burden of worry.

Litigation occurs at the intersection of the unsatisfied patient and family, and the adverse or unexpected outcome to medical treatment. Neither is completely avoidable, and both halves of the equation merit attention. Malpractice litigation does not occur only to careless, inattentive, or unskilled clinicians. While claim statistics demonstrate that certain specialties are more vulnerable to suit, no health care provider is immune. Recognizing that you are an imperfect human being who will make mistakes, you can nevertheless reduce your risk of causing harm, and of being sued successfully. Start by practicing good risk management, building on the old adage of four Cs: compassion, communication, competence and charting.

Compassion is critical to healthy relationships, including those between care-givers and their patients. When you take the time to listen and understand, you get better information and you build a bond of trust with your patient. When the patient knows you care – you become a person, not just an insured funding source in the event of a significant medical complication. Surveys of patients and families who pursue litigation reflect that a common underlying motivation to suit was the belief that the health care provider was not completely honest with the patient, or was otherwise rude or unpleasant. Think about how you can communicate to your patient throughout the relationship in ways that demonstrate your good will and compassion. Be your most likeable and credible self. Studies have shown that tone of voice, eye contact and nonverbal signals can influence whether you are liked or disliked, sued or not sued. Balance the pressures of production, limited time and your taxing schedule with the need to connect. You presumably got into medicine to help people – let that show. Your professional life will be more rewarding, and your patient relationships better able to withstand the inevitable feelings of doubt and blame when bad things happen despite good medical care.

Communication missteps are at the heart of most malpractice cases. Missed or delayed diagnosis claims often result from a bit of critical data that was not shared where or when it needed to be. Medication and treatment errors can result from wrong information or wrong patient identification. Reacting appropriately to a change in condition requires that you access the information necessary to recognize the change. Complex conditions that could benefit from consultation with colleagues can lead to provider isolation and vulnerability when complications ensue. Good communication with patients, families and colleagues, substantially reduces the risk of adverse outcomes and resulting lawsuits. Make effective communication a priority.

Competence is more than the sum of your education, training and experience. It demands that you stay up-to-date on the latest evidence and clinical recommendations in your area of practice. It requires that you stay abreast with technology and its impact on patient care and documentation. It also necessitates humility – knowing when a situation has gotten beyond your expertise and seeking help and support. A low threshold for consultation, and a willingness to reevaluate when a patient is not progressing as expected can help you steer clear of situations that unnecessarily deteriorate and prompt litigation. Many malpractice claims seem to occur on the periphery of the provider’s area of competence. Know your limits and avail yourself to second opinions and other available resources when indicated. In the medical malpractice world, a loaded boat does not sink as quickly.

Charting serves a vital role in facilitating good medical care, and provides the best proof of it in litigation. Memories fade, habits can be unreliable and important details get lost over time. A patient-specific and contemporaneously entered notation in a medical record is valuable proof of a fact. When plaintiff attorneys evaluate a medical outcome to consider litigation, the medical record tells the story. What story does your record tell about your care of the patient? The transition to the electronic health record (EHR) has brought new challenges in this regard. Template driven charting, cookie-cutter entries, data overload and technology barriers create additional risk with the EHR. Detailed, objective, hones, and thorough charting, whether on paper or screen, sets the foundation for your defense if you get sued. The audit trail will show what information you accessed, when, and for how long. Build a strong foundation of proof that you gave good care with a comprehensive accurate use of entries in the medical chart.

Bad outcomes and lawsuits can happen to good doctors. Despite decreasing malpractice claims frequency in Virginia and nationwide in recent years, physicians remain vulnerable to the malpractice lawsuit when an unsatisfied patient experiences a bad outcome. The trend of fewer lawsuits will not go to zero, nor will your risk of being a defendant. But while there is no panacea, you can reduce your personal exposure with thoughtful action. Treat your patients with care and compassion. Invest energy in good clear communication throughout the health care team. Balance confidence and humility as you strive to maintain and grow competence in your area of specialty. And lastly, chart in such a way that your record withstands scrutiny and provides proof of excellent care.

– By Sean Byrne. Byrne practices healthcare law with the Richmond office of Hanco*ck, Daniel, Johnson & Nagle.