WITH HEADLINES proclaiming another medical malpractice crisis, it’s a good idea to take stock of how physicians conduct business with patients.

Let’s face it, in malpractice cases the trouble doesn’t begin with lawyers, it begins with doctors’ interactions with patients. Patients who feel well cared for and have an amicable relationship with their physicians rarely sue, even when there may be a poor outcome to some element of a care plan.

In medical practice for 38 years, I’ve seen the malpractice concerns of physicians rise from minimal to, sometimes, almost hysterical. The scope of our problems accelerated in the early 1970s.

I believe our risks for litigation grew as individuals dispersed away from their core family groups after World War II. The close, long-term contacts with which many of us grew up in our well-defined communities were disrupted. Trust became a victim of that dispersion. People did not have the family ties and, due to frequent moves, did not develop new ones.

That mobile pattern continues to increase today. In addition, the highly publicized scientific developments in medicine began to make the public believe that medicine could cure almost anything and expectations became unrealistic in many cases.
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This combination of lost trust in physicians and publicity surrounding miracle cures played a large part in the development of the litigious society in which we live. Of course, this litigious attitude is not limited to physicians, but it hits us hard when we see our insurance premiums rise each year and our coverages reduced.

Cost of doing business

Involved in medical malpractice crisis since the early 1970s with the Nebraska Medical Association committee on malpractice, I later served as a co-author in a group that helped write the Nebraska medical malpractice statute that still exists today.

In the mid-1980s while a professor of family medicine at the University of Cincinnati, I took a sabbatical at the University of Cincinnati College of Law as a scholar in residence to study the basic elements of tort law and how they affect the medical profession. That sojourn led to continued activity in the area of malpractice for the past 16 years.

After leaving law school, I continued to practice medicine, but also worked as a consultant with a number of law firms to review potential malpractice cases. I reviewed cases for plaintiffs attorneys, defense lawyers and medical malpractice insurance companies. I occasionally served as a witness for both defense and plaintiffs.

It is my observation that most doctors practice quite good medicine, but some just don’t do their jobs with care. There truly is medical malpractice out there, but in some cases malpractice suits are filed due to factual misunderstandings or poor communication.

Unfortunately, even good physicians are sometimes inadvertently negligent in the care of a patient. Most negligence is an unintended lapse or accident and not a sign of incompetence. Good doctors do get sued and this does not necessarily reflect on their abilities. Nonetheless, litigation is an unhappy cost of doing business in our society.

On the other hand, there are some doctors that I am ashamed to call colleagues. Their behavior toward patients would turn the stomach of even the most adamant defenders of the medical profession.

It is our duty to police ourselves and protect patients. We have a sworn duty to do no harm and that duty extends to preventing harm done by others.

Avoiding lawsuits

Based on my experience in the review of over 200 medical malpractice cases, I created a list 10 ways to help practitioners to avoid litigation. The list is not all-inclusive, but it does provide a number of preventive measures that, if followed, can reduce litigation risks significantly.

(1) Maintain open communication.

One of the leading causes of litigation is poor communication between doctors and patients.

Patients view their physicians as arrogant or distant when they do not make an effort to speak with them and their families.

I recently dealt with a case that centered solely on a surgeon’s failure to explain to the family the complications that arose during an elderly patient’s operation. The need to communicate with patients and families pertains to us all.

Remember the great French barber surgeon Ambrose Pare’s admonition to all physicians; “We are sometimes to cure, often to treat, but always to console.”

(2) Keep accurate medical records.

Keep clear and concise records. If handwritten, be certain the records are legible.

I went to a trial where a physician could not read his own medical records. It cost his insurance company a bundle. Use only standard abbreviations. Do not use personal codes that others cannot decipher.

The records are for the benefit of patients and the information they contain belongs to them. Keep pertinent positives and negatives in the notes.

A record needs to reflect the logical pursuit of a diagnosis and treatment plan. Remember, the records must be kept confidential.