Medical Malpractice Lessons, the Hard Way...

(Excerpted from Medical Economics, 12/01/06)

Dr. Duldner received his first notice letter while still a second-year resident. The following 18 months, which he described at torturous, marked his beginning of an interest in the medicolegal system. After several more notice letters over the years and four cases that almost went to trial, Dr. Duldner shares three major lessons that he has learned over the years.

Lesson 1: Trust your attorneys but verify the facts

After the initial self-doubt and anger, do your own detective work in reviewing the situation as honestly and objectively as possible. Did you meet the standard of care? Had evaluations of other patients, before and after, differed from your actions in this case? Did you forget something that you typically do? Was your documentation of the evaluation sufficiently detailed? Did you instruct the patient about the diagnosis, prognosis, and actions to take if conditions worsen – and was that documented?

In the doctor's first case, he requested the toxicological analysis from the autopsy. His attorneys had been unaware of its existence and it showed that the medication, which he has prescribed for the patient, had not been found in her blood. What was found was Demerol and cocaine. Within three days, the case was dropped.

In other words, trust your legal team, but take an active role in your own defense so you know the medical aspects of the case better than anyone else.

Lesson 2: Document with an eye to the future

The doctor's second lesson came from another case where he saw a patient in emergency and wanted to admit him for observation, but the patient refused. The next day the patient returned and was diagnosed with a perforated appendix. The surgery and recovery was successful, but he sued the doctor for failure to make a timely diagnosis.

Reviewing his documentation, Dr. Duldner realized that there was a certain lack of specificity in his notes. He should have provided a more detailed narrative of the first day abdominal discomfort and should have documented the patient's refusal to be admitted for observation.

Finally, he should have asked the patient to sign a "discharge against medical advice" waiver. Such detailed documentation could have carried greater weight with the plaintiff's attorney during depositions and interrogatories.

Today Dr. Duldner suggests examining every chart as if a year had passed since the treatment. Assume that the complaint or care had a bad outcome and then ask yourself if the documentation would be sufficient to justify your treatment plan; or would it lead an attorney or a jury to conclude that the course of action was unjustified and thereby leading to a bad outcome.

Lesson 3: You can always do better

Any involvement, direct or indirect, in a malpractice case should be viewed as an instructive experience and a good tool for continuous quality improvement. In re-evaluating your charts, look for ways to do better. Not only will it improve your patient care, but it will leave less room for scrutiny and second-guessing in the legal arena.

The risk of litigation is an undeniable fact of practicing medicine. When and if you are sued, you need to have a strategy in place for staging a successful defense. That means taking an active role in your own defense, having detailed records available to justify your actions and making sure you have second-guessed yourself before someone else does.