04/19/23 1

Med/Mal – Med/Mal – Issues from both sides of the Issues from both sides of the

aisleaisleTulane School of MedicineTulane School of Medicine

Med/Peds Med/Peds

Conrad Meyer Esq., MHA Conrad Meyer Esq., MHA FACHEFACHE

Chehardy Sherman, LLPChehardy Sherman, LLPcm@chehardy.comcm@chehardy.com

(504) 830-4141(504) 830-4141

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Most Malpractice Suits Are Most Malpractice Suits Are Due to Failure to Do the Due to Failure to Do the

BasicsBasics Inadequate Hx & PEInadequate Hx & PE Inappropriate TestsInappropriate Tests Poor CommunicationPoor Communication

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Two Components to Patient Two Components to Patient CareCare

1.1. Technical Side – the ScientistTechnical Side – the Scientist

2.2. Human Side – the HealerHuman Side – the Healer

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Three Components to Three Components to Malpractice SuitsMalpractice Suits

• CommunicationCommunication• OutcomeOutcome• DocumentationDocumentation

Bad Communication + Bad OutcomeBad Communication + Bad Outcome

= Malpractice Suit= Malpractice Suit Good Communication + Good or Bad Good Communication + Good or Bad

OutcomeOutcome

= Usually no suit= Usually no suit

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Communication Communication – exchange of – exchange of information – information –

Story (“History”)Story (“History”) FamilyFamily NonverbalNonverbal Verbal – languageVerbal – language Atmosphere in ERAtmosphere in ER

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CommunicationCommunication

A.A. Let the patient talkLet the patient talk 80% of pt “stories” are < 60 sec.80% of pt “stories” are < 60 sec.

B.B. Give the family a chance to Give the family a chance to commentcomment

C.C. Introduce yourself. Touch. Dress Introduce yourself. Touch. Dress Code. Eye ContactCode. Eye Contact

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CommunicationCommunication

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Communication cont’dCommunication cont’dD.D. VerbalVerbal

Non-chief complaintNon-chief complaint Medical – “ease”Medical – “ease” Team playerTeam player

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Top 10 reasons for Top 10 reasons for malpractice claimsmalpractice claims

against primary care against primary care physiciansphysicians Errors in diagnosisErrors in diagnosis

No medical misadventure - The doctor was named in a No medical misadventure - The doctor was named in a lawsuit, but there was no allegation of inappropriate lawsuit, but there was no allegation of inappropriate medical conduct on his partmedical conduct on his part

Improper performance Improper performance Failure to supervise or monitor caseFailure to supervise or monitor case Medication errorsMedication errors Not performed - The physician allegedly failed to perform Not performed - The physician allegedly failed to perform

an indicated treatment or procedure, and that failure was an indicated treatment or procedure, and that failure was the main reason for the malpractice action.the main reason for the malpractice action.

Failure/delay in referral or consultationFailure/delay in referral or consultation Performed when not indicated or contraindicatedPerformed when not indicated or contraindicated Failure to recognize a complication of treatmentFailure to recognize a complication of treatment Delay in performanceDelay in performance

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Top Procedures Docs are Top Procedures Docs are SuedSued

Diagnostic interview evaluation, or consultationDiagnostic interview evaluation, or consultation Prescription of medication Prescription of medication General physical examGeneral physical exam No care rendered No care rendered Injections and vaccinations Injections and vaccinations Diagnostic radiologic procedures excluding CT scan and Diagnostic radiologic procedures excluding CT scan and

contrast material contrast material Diagnostic procedures involving cardiac and circulatory Diagnostic procedures involving cardiac and circulatory

functionsfunctions Misc. manual exams and non-operative proceduresMisc. manual exams and non-operative procedures Diagnostic procedures of the large intestine Diagnostic procedures of the large intestine Misc. non-operative proceduresMisc. non-operative procedures

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Most Frequent Source of Most Frequent Source of ClaimsClaims

1.1. Wound ComplicationsWound Complications

2.2. Extremity fx and complicationsExtremity fx and complications

3.3. Myocardial infarction (Myocardial infarction (1/31/3 of all $ of all $ awarded against ER-MD)awarded against ER-MD)

4.4. AppendicitisAppendicitis

5.5. Head TraumaHead Trauma

6.6. Aortic aneurysm/dissectionAortic aneurysm/dissection

7.7. Medication ErrorsMedication Errors

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Typical Day in Clinic?Typical Day in Clinic?

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RED FLAGSRED FLAGS Time of careTime of care Change of shiftChange of shift Unscheduled return visitUnscheduled return visit Language problemsLanguage problems Uncooperative ptUncooperative pt Compromised pt (diabetes, Compromised pt (diabetes,

alcoholics, anticoagulants)alcoholics, anticoagulants)

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How do we prevent How do we prevent lawsuitslawsuits

Tracking and follow-up: Don't neglect either Tracking and follow-up: Don't neglect either Establish Tracking or Follow-up proceduresEstablish Tracking or Follow-up procedures

Labs and X-rays you've ordered are performed.Labs and X-rays you've ordered are performed. The physician reviews reports before they go into the The physician reviews reports before they go into the

chart.chart. Patients are told to come in for follow-up visits.Patients are told to come in for follow-up visits.

juries appreciate and understand that doctors juries appreciate and understand that doctors have noncompliant patients. What juries struggle have noncompliant patients. What juries struggle to understand—and to forgive—is a perceived lack to understand—and to forgive—is a perceived lack of effort on the physician's part to manage of effort on the physician's part to manage information on a timely basis and follow up with information on a timely basis and follow up with the patient. A practice that doesn't have a suitable the patient. A practice that doesn't have a suitable system can get itself into an indefensible positionsystem can get itself into an indefensible position

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How do we prevent How do we prevent lawsuits cont.lawsuits cont. Putting it in writing: The importance of documentation Putting it in writing: The importance of documentation

You are expected to keep careful, complete recordsYou are expected to keep careful, complete records The problem might involve the record's content or legibility, or The problem might involve the record's content or legibility, or

whether the practice keeps track of things like patients' whether the practice keeps track of things like patients' medication history and allergiesmedication history and allergies

The medical record can provide the most striking evidence that The medical record can provide the most striking evidence that you've done right by your patient. “you've done right by your patient. “

As lawyers, we need to use the medical record to show that the As lawyers, we need to use the medical record to show that the doctor we're defending got the appropriate history, ordered the doctor we're defending got the appropriate history, ordered the appropriate tests, and told the patient that he or she needed to be appropriate tests, and told the patient that he or she needed to be seen againseen again

The record should also indicate that the doctor instructed the The record should also indicate that the doctor instructed the patient about any changes in symptoms that might suggest a more patient about any changes in symptoms that might suggest a more serious problem serious problem

No right or wrong way to document – but be consistentNo right or wrong way to document – but be consistent Errors in documentation – simply cross out and re-write – Don’t Errors in documentation – simply cross out and re-write – Don’t

White out!White out!

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DocumentationDocumentation1.1. Hx addresses chief complaintHx addresses chief complaint

2.2. Include pertinent negativesInclude pertinent negatives

3.3. High risk Dx excludedHigh risk Dx excluded

4.4. Repeat ExamRepeat Exam

5.5. Time and notes about consults Time and notes about consults conversationconversation

6.6. Repeat abnormal vital signsRepeat abnormal vital signs

7.7. Discharge InstructionsDischarge Instructions

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Discharge InstructionsDischarge Instructions Short and clearShort and clear Written in standard EnglishWritten in standard English Give them a doctorGive them a doctor Close the ring - FinaleClose the ring - Finale

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How do we prevent lawsuits How do we prevent lawsuits cont.cont. Keeping in touch: Communicate with patientsKeeping in touch: Communicate with patients

You must establish good doctor-patient—and doctor-doctor—You must establish good doctor-patient—and doctor-doctor—communication channels before an adverse event occurs.communication channels before an adverse event occurs.

In many malpractice claims, either the doctor failed to tell the In many malpractice claims, either the doctor failed to tell the patient something, the doctor's instructions were patient something, the doctor's instructions were misunderstood, or the doctor failed to pass along important misunderstood, or the doctor failed to pass along important information to a referral physician. information to a referral physician.

In an adverse event, first the patient experiences surprise, then In an adverse event, first the patient experiences surprise, then disappointment, and finally anger. disappointment, and finally anger.

Most physicians who have a disappointed patient, a treatment Most physicians who have a disappointed patient, a treatment failure, or a complication naturally tend to avoid the patient. failure, or a complication naturally tend to avoid the patient. That's a big mistake. That's a big mistake.

Perceived arrogance or disinterest on the doctor's part is a key Perceived arrogance or disinterest on the doctor's part is a key reason a disappointed patient turns angry and visits a lawyer reason a disappointed patient turns angry and visits a lawyer

Many times, patients just want empathy, and to know that what Many times, patients just want empathy, and to know that what happened to them won't happen to someone elsehappened to them won't happen to someone else

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Louisiana “I'm Sorry Law” Louisiana “I'm Sorry Law” (LSA RS 13:3715.5)(LSA RS 13:3715.5)

Any communicationAny communication, including but not limited to an oral or , including but not limited to an oral or written statement, gesture, or conduct by a health care provider written statement, gesture, or conduct by a health care provider expressing or conveying apology, regret, grief, sympathy, expressing or conveying apology, regret, grief, sympathy, commiseration, condolence, compassion, or a general sense of commiseration, condolence, compassion, or a general sense of benevolence made to a patient, a relative of the patient, or an benevolence made to a patient, a relative of the patient, or an agent or representative of the patient, agent or representative of the patient, shall not constitute an shall not constitute an admissionadmission as defined in Code of Evidence Article 801(D)(2) or a as defined in Code of Evidence Article 801(D)(2) or a statement against interest as defined in Code of Evidence statement against interest as defined in Code of Evidence Article 804(B)(3), Article 804(B)(3), and shall not be admissible in evidence to and shall not be admissible in evidence to establish liability or for any other purposeestablish liability or for any other purpose, including , including impeachment, in a medical review panel proceeding, arbitration impeachment, in a medical review panel proceeding, arbitration proceeding, or civil action brought by or on behalf of the patient proceeding, or civil action brought by or on behalf of the patient or by or on behalf of an heir, survivor, statutory beneficiary, or or by or on behalf of an heir, survivor, statutory beneficiary, or agent or representative of the patient against the health care agent or representative of the patient against the health care provider who made the communication. A statement of fault, provider who made the communication. A statement of fault, however, which is part of, or in addition to, any such however, which is part of, or in addition to, any such communication shall not be made inadmissible pursuant to this communication shall not be made inadmissible pursuant to this Section.Section.

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How do we prevent lawsuits How do we prevent lawsuits cont.cont.

Medication errors: What patients don't know can hurt Medication errors: What patients don't know can hurt them them Doctors should tell clinical staff that as part of the intake Doctors should tell clinical staff that as part of the intake

process, they need to ask what medications patients are process, they need to ask what medications patients are taking, including over-the-counter and herbal remedies, and taking, including over-the-counter and herbal remedies, and what medications they've had problems with.what medications they've had problems with.

Recommend asking patients to bring all their medications to Recommend asking patients to bring all their medications to the office so the staff can actually see what they're takingthe office so the staff can actually see what they're taking

With the huge increase in the number of drugs available, With the huge increase in the number of drugs available, adverse drug reactions and interactions have become a major adverse drug reactions and interactions have become a major malpractice snaremalpractice snare

Physicians should meet with pharmaceutical representatives Physicians should meet with pharmaceutical representatives so they have a clear idea how to use new medicationsso they have a clear idea how to use new medications

You need to write scripts clearly and avoid abbreviations You need to write scripts clearly and avoid abbreviations that can be misunderstoodthat can be misunderstood

Refilling prescriptions in perpetuity without seeing the patient Refilling prescriptions in perpetuity without seeing the patient invites troubleinvites trouble

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Top Ten List for Avoiding Top Ten List for Avoiding Med/Mal Suits Med/Mal Suits

1.1. Tell the truth, the whole truth, and nothing but the truth: Tell the truth, the whole truth, and nothing but the truth: Avoid subjective comments, complete all insurance forms, Avoid subjective comments, complete all insurance forms, and document any lack of diagnostic uncertainty. and document any lack of diagnostic uncertainty.

2.2. Write well and write often: Your notes should be legible, Write well and write often: Your notes should be legible, thorough, and accurate. Don't write data in the margins. thorough, and accurate. Don't write data in the margins. Noting patient quotations can be helpful if you're ever Noting patient quotations can be helpful if you're ever sued. sued.

3.3. See your patient before making the diagnosis: If possible, See your patient before making the diagnosis: If possible, don't order medication without examining the patient, or don't order medication without examining the patient, or at the very least make sure you review the patient's at the very least make sure you review the patient's medical history before issuing prescriptions. medical history before issuing prescriptions.

4.4. Pay attention to the little things: Watch nonverbal cues, be Pay attention to the little things: Watch nonverbal cues, be courteous, and reassuring. courteous, and reassuring.

5.5. Never underestimate vital signs: Always record and review Never underestimate vital signs: Always record and review temperature, BP, weight, height, and pain analog scales. temperature, BP, weight, height, and pain analog scales.

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Top Ten List for Avoiding Top Ten List for Avoiding Med/Mal SuitsMed/Mal Suits

66.. Communicate as if your job depends on it: Tell the Communicate as if your job depends on it: Tell the patient what to expect during an exam, prolong office patient what to expect during an exam, prolong office visits, use appropriate humor, and make sure patients visits, use appropriate humor, and make sure patients understand their options. understand their options.

7.7. Be nice, be yourself: Nice doctors get sued less often. Be nice, be yourself: Nice doctors get sued less often. 8.8. Know that others will read your charts: Don't even think Know that others will read your charts: Don't even think

about recreating charts with different information. about recreating charts with different information. 9.9. Consider all diagnoses, not just the common ones: Listen Consider all diagnoses, not just the common ones: Listen

to the patient carefully, and revisit unresolved problems. to the patient carefully, and revisit unresolved problems. 10.10. Stay alert, and don't forget the unusual: Don't rush, and Stay alert, and don't forget the unusual: Don't rush, and

remember "red flags." remember "red flags."

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YOUR RESPONSIBILITYYOUR RESPONSIBILITY Keep up with CMEKeep up with CME Clear your mind before you walk in – Clear your mind before you walk in –

FocusFocus Forget your EGOForget your EGO Get enough sleep. Keep your sense Get enough sleep. Keep your sense

of humor.of humor.

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It is ok to “fire” patientsIt is ok to “fire” patients

It's ok to "fire" patients with whom It's ok to "fire" patients with whom you can't agree after multiple you can't agree after multiple efforts. efforts.

Make sure to choose your words Make sure to choose your words carefully, put it in writing, and, if carefully, put it in writing, and, if possible, dismiss them in person. possible, dismiss them in person.

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One of the most effective and most abundant One of the most effective and most abundant resources available to medical residents is often resources available to medical residents is often

overlooked, although in plain view....overlooked, although in plain view....THE NURSE!THE NURSE!

Nurses have a lot to offer residents:Nurses have a lot to offer residents: Years of experience in caring for the type of patients that Years of experience in caring for the type of patients that

the resident may have never before encounteredthe resident may have never before encountered The benefit of having experienced how a number of different The benefit of having experienced how a number of different

physicians have attempted to manage a disease process or physicians have attempted to manage a disease process or clinical presentationclinical presentation

Have knowledge of the facility's policies and procedures - Have knowledge of the facility's policies and procedures - which might come into play in the event of an unfortunate which might come into play in the event of an unfortunate patient outcome patient outcome

Have access to a number of resources, such as medical Have access to a number of resources, such as medical literature, old patient charts.....take out menusliterature, old patient charts.....take out menus

Have developed excellent interdepartmental Have developed excellent interdepartmental communication - may be able to get you those important lab communication - may be able to get you those important lab results back ASAP or know the specific criteria necessary for results back ASAP or know the specific criteria necessary for having a patient bumped ahead in the CT linehaving a patient bumped ahead in the CT line

Usually don't bite - most tend to be nurturing and willing to Usually don't bite - most tend to be nurturing and willing to teach without judgment or arroganceteach without judgment or arrogance

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Building a Relationship with Building a Relationship with Nursing StaffNursing Staff

When new to a floor or unit, be certain to introduce When new to a floor or unit, be certain to introduce yourself and let the nurses know you are glad to be yourself and let the nurses know you are glad to be therethere

Understand you're in their house - although this is Understand you're in their house - although this is your temporary office, this is where many have your temporary office, this is where many have worked for years - be respectful of the environment worked for years - be respectful of the environment and the unwritten rules of conductand the unwritten rules of conduct

Be sure to write orders rather than give them Be sure to write orders rather than give them verbally whenever possible; this decreases the verbally whenever possible; this decreases the number of errorsnumber of errors

Sign, date and time every entry into the chart if the Sign, date and time every entry into the chart if the chart is not electronicchart is not electronic

Ask questions - not everything is charted; nurses Ask questions - not everything is charted; nurses spend a lot of time with patients and are able to spend a lot of time with patients and are able to relay trends in clinical status relay trends in clinical status

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Building a Relationship with Building a Relationship with Nursing StaffNursing Staff

Understand that nurses Understand that nurses are accustomed to are accustomed to working as a team; working as a team; make an effort to be make an effort to be part of that team by part of that team by discussing the patient's discussing the patient's symptoms, progress symptoms, progress and plan of care with and plan of care with the nursethe nurse

Be clear and accurate Be clear and accurate in all orders and in all orders and communicationscommunications

Write legiblyWrite legibly Follow up on the results Follow up on the results

of critical testsof critical tests

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Questions or Comments Questions or Comments Please contact:Please contact:Conrad Meyer Esq., Conrad Meyer Esq.,

MHA FACHEMHA FACHEChehardy Sherman, Chehardy Sherman,

LLPLLPcm@chehardy.comcm@chehardy.com

(504) 830-4141(504) 830-4141