How to Protect Yourself from Being Sued for Medical Malpractice
The thought of getting sued is what keeps every doctor up at night,and that’s not surprising as the cost of medical malpractice to the NHS this year was around £4.4 billion, an increase on half a billion since just last year[i]. Health workers fear that the recession is making people more desperate for money and more likely so sue over things that they wouldn’t normally make a fuss about. Luckily, about 70% of all lawsuits are dismissed by the plaintiffs before a verdict is reached[ii], and in the end only around 1.8% of lawsuits actually lead to any financial
consequences[iii].
Document EVERYTHING
As a medical student the need for good documentation is drummed into you on a daily basis, and from 3rd year you will be expected to write in patient notes regularly. This is to ease you into one of the most important aspects of your job-good documentation. Everything you do must be written in the patient’s notes, including any conversations you have with them about their illness, any examinations and your findings, any tests and the results when they come back, any medications you decide to put them on and the reason why and even a note to say when they were discharged. Most of the time, the only thing standing in the way of you getting sued is your documentation, because it will prove that you saw the patient on a regular basis, you took a thorough history and conducted a proper investigation, and sent for all of the tests you were required to. If you don’t write even the smallest thing down you may find that it will come back to haunt you. Lastly, make sure your writing is legible! Otherwise you may find that your patient is given a completely different drug than the one you wrote in their notes, or a different dose which can be just as dangerous.
Examine the Patient Thoroughly
Always do a full examination of the patient, including all systems just to rule things out. If the patient later becomes critically ill or dies and it comes out that you did not do a full examination then it is you that will be in the firing line. Also make sure you document the examination fully, including any further tests which you would like, because neglecting to do those tests could be the difference between life and death for a critically ill patient who
doesn’t look that ill; a child with a fever is a perfect example. They may have had a high temperature for a few days and be off their food, but they seem to be playing normally and all examinations are normal. You discharge the child,
who is later brought back into A&E having a seizure because what he actually had was bacterial meningitis, and a routine blood test would have shown increased C-reactive protein and white blood cells, indicating the need for a
lumbar puncture. Don’t get caught out, especially where children are involved; looks can be deceiving.
Bedside Manor
This can mean
different things to different people, but it is basically how your patients perceive you. A patient requires your full attention whenever you are in their company. Listen to everything they have to say, just let them talk and don’t
interrupt because they might tell you everything you need to know. Show them empathy, the patient likes to know that you sympathise with the way they are feeling, and don’t just rush off to another patient; show them they are important by just spending a few extra minutes of your valuable time with them and they will respect you for it. A study showed that doctors who had never been sued spent over 3 minutes more with each patient with the ones that had[iv].
Show the patient that you respect their privacy by drawing the curtains whilst you are examining them, or
even when you are just talking to them, it will make them feel like they have your full attention and they will see that you care about trying to keep their case between yourselves; most patients do not want everyone on the ward knowing what is wrong with them. And lastly, show the patient that you are human! Make a joke, laugh with them, show them a side they can relate to and they may even open up more.
Good Communication
This is just common sense; a patient needs to know what Is wrong with them and to be able to get to that
point they need to be told in terms they can understand. Signpost your consultations, for example “Good Morning Mrs X, I’m just here to ask you a few questions to get to the bottom of what is going on. First you can tell me what’s been happening in your own words, then I’d like to do an examination of that’s alright, and then there will be time for you to ask me any questions.” Setting your conversations out like this allows the patient to know what’s coming, so they don’t try to ask you all their questions before they have told you their presenting complaint, or get angry when you ask them to remove their robe for an examination.
A significant number of medical malpractice cases involve misinformation. You will have to consent people on a daily basis, and should involve talking them through the procedure, explaining both the risks and benefits, talking about alternatives and asking the patient if they have any questions. If this information is not all given you are setting yourself up to get sued. If a patient suffers from a complication from a procedure when they had not been informed of any risks then it is you who will get blamed, not the attending surgeon or the person that carried out the procedure. Do not lie to a patient-if they ask about risks tell them about ALL of them, even if they include death.
The patient’s family play a big part in their care, and in some cases you will be expected to provide care on the basis of what the family approve ie in patients who lack capacity. Make sure the family are always kept informed, including the risks of any procedures that the patient may have, because if they suffer from a significant complication then at least you are covered where the family are concerned.
Included in communication could be patient confidentiality; if you breech it expect a call from your patients lawyer. Patient confidentiality can only be breeched in very specific circumstances, namely if you need to discuss the case with others in your MDT to come up with the best possible care, if you suspect the patient is putting
others in serious danger, or if you have a good reason to suspect that the patient is being abused.
Attend to the Patient
Do not forget that your job is to treat the patient, not the illness. Sure, the pan-systolic murmur in bed 5 might be a good learning tool for your medical students, but do not forget that they are also a person. Treat them like a human being and they will reward you with the same courtesy.
Don’t Be Afraid to Look it Up
Doctors are sometimes perceived to be these mythical creatures who can retain all the knowledge in the world. Some of your patients will expect you to know every medical condition in the world, and be able to tell them what is wrong after a brief chat. This just isn’t the case, you are only human and no human can remember everything you learned at medical school plus every patient you have seen since. If you are stuck, look it up, whether that be symptoms, medications or test results; and if that fails, ask someone who will know! Doctors specialise for a reason, so that they can be an expert in one field, which may mean they are a little rusty in areas they do not have to deal with every day. Asking for help does not make you stupid, it shows you care about your patient and want to make sure you are doing everything right. If you are unsure-ask.
Discharge Appropriately
Ensure that you have done everything possible for your patient and that they are adequately healed before you send them home. Many medical negligence cases start with the patient being sent home earlier than they should have done, and coming to harm due to complications because of it. Document in the notes why you chose to
discharge them at that specific time, because you may be asked about it later on.
Say You’re Sorry
It is easy to forget that doctors are only human, and they can make mistakes too. They are held so highly in society that it is thought that they have all the knowledge in the world and cure someone as easily as look at them. If you make a mistake own up to it, there may be time to correct what you did wrong so no harm comes to the patient.
It will also make your colleagues respect you more, and could lead to the jury voting in your favour if the case is ever taken to court. You are allowed to make mistakes, just so long as you realise what you have done before it causes any harm. No one is perfect.
Don’t take it personally….
Around 7% of all doctors are sued each year, it is a fact. This does not mean that you will be one of the 7%, but just be aware that it can happen to even the most careful doctors. The families of patients who have died sometimes sue the attending health workers because they are grieving and they think it will help with the process; they are going through a very hard time and are taking it out on the easiest people- the people who were responsible for trying to keep their family member alive.
Sometimes probability means that you will have a patient who will suffer from a complication in one of the procedures you have to perform, and they may choose to sue; of course you will be better prepared to handle this if you have documented in their notes that your explained all of the risks to them….
Being sued is just something many of you will have to deal with because of the position of responsibility that you are in. The case may take years to go through the courts and will most likely result on you being found not guilty, but those few years can be a very stressful time, with up to 10% of doctors who have been sued at some point admitting to considering suicide[v]. Essentially, what you need to do it let the case run its course, do everything you can, and then forget about it and do your job, because if you don’t your patients may suffer. And after all, if you got upset every time a patient complained against you, you would spend your life being a very unhappy doctor!
References:
[i] http://www.dailymail.co.uk/health/article-111187/Negligence-claims-costing-NHS-4-4bn.html
[ii] http://www.aafp.org/fpm/2006/0600/p57.html
[iii] http://physicianfamily.com/2012/08/07/the-other-bad-outcomes-how-to-get-sued-without-even-touching-your-patient/
[iv] http://ethicalnag.org/2010/10/15/why-doctors-get-sued/
[v] http://www.kevinmd.com/blog/2009/01/being-sued-for-malpractice-for-doctors.html