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All doctors today are aware of the risk of being sued.
While lawsuits against doctors used to be rare in the
past, trends are changing rapidly and we are quite likely
to follow the American example where practically every
doctor has been sued at least once, and where being
sued is considered to be one of the occupational hazards
of practicing medicine. While this can be bitter medicine,
there is little point in waxing nostalgic about the
good old days; we need to come to terms with the new
reality.
Learning how to minimize the incidence of adverse events
in medicine, and their impact, is called risk management,
and this has become a well-established science today.
The practice of risk management involves identifying
those aspects of problem behaviour on the part of doctors,
that cause patients to sue, and then eliminating or
controlling them to reduce the likelihood that a malpractice
claim will be filed. Unfortunately, most doctors in
India are still unaware of this field, and most of us
learn about it the hard way.
Risk management is tied to the concept of quality control.
The ideal solution to quality control would be to prevent
all risks, but unfortunately this is impossible because
provision of much needed medical care is unavoidably
accompanied by the occurrence of injuries. What can
you do to minimize your risks? Risk management focuses
on preventing problems, and the most important issues
are:
Clinical Competence
Medical knowledge requires maintenance: Keep
yourself up-to-date! Do your homework: good doctors
can prevent the most serious errors by being primed
to recognize and treat them. The sequence of events
leading to poor patient outcomes and eventually to malpractice
suits can usually be clearly visualized. Failure to
perform an adequate clinical assessment of the patient,
omission of necessary tests, an improper diagnosis,
and failure to treat the patient's condition can lead
the physician and his patient towards disaster. Fortunately,
proper attention to the details of the clinical encounter
and an awareness of the most common problem diagnoses
can help you to avoid these pitfalls.
Remember, however, that being competent as an individual
is not enough. You are in charge of the entire medical
team caring for the patient, and you need to ensure
that your staff too is competent. They will learn from
you, and it is your responsibility to teach them well!
It is important to realize your own limitations, and
to ask for consultations and referrals to seniors when
necessary. Also, do not criticize other doctors and
their care: after all, what goes around, comes around,
and your criticism may backfire in the long run.
Communication
This means being able to manage high-risk situations,
where the patient is likely to sue. Thus, the patient
who has had a poor outcome (for example, the birth of
a baby with birth asphyxia: the obstetrician's nightmare)
is like a time bomb which may explode if not handled
with care and tact. The most important skill is that
of patient communication: of being able to talk and
explain to the patient what went wrong, and why. This
is the skill of having a good bedside manner: of treating
patients as human beings worthy of your time and attention.
For many physicians that goes without saying, but for
some it bears repeating. Unfortunately, arrogance seems
to be second nature for some doctors in India and, as
Tuthill puts it, "If you act like God you'll be
expected to perform like God," and that's sure
invitation to a lawsuit. Remember, patients who like
their doctors and medical office staff, and feel a strong
sense of loyalty and friendship towards them are much
more inclined to resist the notion of suing even if
things do go wrong. For example, if a complication does
occur, do not try to hide it. It is best to explain
it as some form of biological variation in the patient
responsible for an unusual clinical presentation or
therapeutic response, for in most cases this is the
best tactical explanation.
Fortunately for most doctors, the majority of patients
who experience an adverse event or poor clinical outcome
because of an error do not sue their doctors. Nonetheless,
an adverse event or unexpected bad result can serve
as a red flag, warning the doctor that he may be slapped
with an allegation of malpractice. The severity of the
injury and the degree of patient or family dissatisfaction
may be additional "early warning" signs that
a lawsuit may be on the way. So what should you do to
prevent problems if an adverse event does occur ?
First, remember what not to do - don't lie; don't hide;
don't pretend; and don't push off the unpleasant duty
of talking to the patient or his relatives to someone
else - it's your responsibility and only you can do
it properly. Don't make a bad situation worse by running
away from it ! Unfortunately, the first response is
often to bury the error and hide it - but this often
makes matters worse.
Junior staff members should report all incidents to
their seniors, who can take appropriate steps. After
all, with seniority comes experience - and often your
seniors will have encountered similar problems in the
past, and will know exactly what to do. Their advise
and guidance can be invaluable.
The first priority should be to attend to the patient's
medical needs. Take responsibility
for dealing with the problem, ask for consultation and
make arrangements for follow-up. Discuss with all staff
members the factual details and sequence of what occurred
, and attempt to reconcile any opposing perceptions
of what occurred. Coordinate your response, to ensure
that everyone is going to tell the same story.
When a serious adverse event occurs, expressing sincere
sympathy and compassion to the patient and/or family
is often the most important response to help diffuse
a potentially volatile situation.
As soon as possible after the event, factually record
the incident and medical response and document plans
for further follow-up if indicated. It's a good idea
to ask the most involved and knowledgeable staff member(s)
to record factual statements of the event in the patient's
record and any follow-up needed or done as a result
of the incident. However, do not ever alter ( or allow
anyone else to alter) any prior documentation , or insert
backdated information. Ill-advised record alterations
can render otherwise defensible cases almost impossible
to defend. Do not use the medical record to speculate
or air grievances about other caregivers, equipment,
or administrative processes.
Be accessible for questions from the family and the
patient. Repeated requests for an explanation of the
event is a common reaction of upset patients and family
members - be empathetic and don't get irritated ! Be
honest with the patient and family - if you try to wriggle
your way out by lying, you may find yourself trapped
in a quagmire from which it may be very difficult to
extricate yourself later.
Organize a family meeting if several relatives are involved
in the patient's care or if treatment decisions are
complicated. Empathize with the family and offer emotional
support. Your goal should be to show compassion for
the patient's distress, without admitting liability
- and this can be tricky, but you need to find the right
balance !
Accept responsibility for follow-up of serious complaints,
but do not accept or assign blame, or criticize the
care or response of other providers.
Should you apologise to the patient if there has been
a goofup ? The best approach is a rational one - describe
the incident and medical response in brief, factual
terms and if additional follow-up is indicated, discuss
those plans with the patient. Show concern for the patient's
condition, but don't criticize yourself or other caregivers
for a poor outcome or engage in "thinking out loud"
about what happened or why.
If the event involved a medical device or piece of equipment,
preserve these materials for
investigation. Do not return defective devices to a
manufacturer who may be a possible party to a claim.
Electronic fetal monitoring strips, X-rays, and pathology
slides are examples of other important data to preserve
following an adverse event.
Today patients have higher expectations of the medical
care they receive, and they expect their doctor to have
excellent technical skills and to apply his medical
knowledge expertly to their problems. They expect value
for the money they spend on medical services, and they
also demand to be treated with respect, courtesy, and
caring. When they find their expectations belied they
turn into critics, and even plaintiffs.
Insurance
Ensure that you are covered and have adequate professional
liability insurance. Indeed, it would be foolhardly
for any doctor today to practice without taking out
comprehensive coverage for malpractice insurance, and
fortunately insurance premiums in India are still reasonable.
While coverage will not prevent you from being sued,
it will help to mitigate the possible financial impact
on your resources.
Documentation
It has been said that the medical record is a defendant
physician's only friend, or foe. In every malpractice
case, attorneys for both sides scrutinize medical records
carefully, looking for specific types of evidence that
will bolster their respective cases. Every medical record
has a potential for legal scrutiny, and it serves as
a legal record of the care provided to the patient.
The rule is simple: if it is not documented it did not
happen! Absent data, poorly integrated information,
or diagnostic conclusions that are not logical or are
not properly recorded, leave an impression of sloppy
practice and poor physician judgment. In fact, keeping
accurate medical records is so important, that we have
devoted a complete chapter to this.
If you want to reduce your risk of getting sued for
malpractise, follow these simple suggestions.
1. Be a nice person. Be pleasant to be around. Be agreeable.
Be friendly. While being nice is no guarantee that a
patient or family is not going to sue , they are far
more likely to sue you if you are unpleasant, obnoxious
and rude. So be nice.
2. Be honest. Don’t make promises you can’t
keep. And when you make a mistake, admit it. Promptly.
The reason for this is that when we lie, we send off
signals that something’s not right. And most people
can spot that a mile away. If you are honest and forthcoming
with patients and family, they are more inclined to
like you, and far less inclined to sue.
3. Be open. Make it a point of being available and easy
to reach, both in a physical sense, and in a psychological
sense. If something doesn’t make sense, say so.
If you don’t understand something, tell the patient.
And if you don’t have all the answers, tell the
patient that, and say that you will find someone who
does have the answers. And do it.
4. Be accessible. Don’t hide from your patients.
Don’t avoid them. Again, I’m not suggesting
that you be there for them 24 hours a day. But when
you are there, be there. And if you have other patients
to care for, tell your patient honestly that you have
other patients at the moment, but you will be back with
them as soon as you can.
5. Keep up to date professionally, and not do things
that you are not competent to do. This is just a part
of being honest with yourself. Know what you can do,
and do it. Know what you can’t do, and don’t
do it.
Life is full of the unexpected, and this is especially
true in an inexact science like medicine. No matter
how competent and careful you are, problems are bound
to occur. If you are prepared for these, and have a
plan of action to deal with them, you will be able to
cope much better when they do crop up.
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