Practicing Preventive Legal Medicine

I am including below excerpts from an article I recently had published in Florida Medical Business Journal, Florida’s leading medical business journal. I apologize in advance to those who practice outside of Florida; however, most of the principles discussed in this article are applicable to doctors practicing in any state with the United States.

Practicing Preventive Legal Medicine Florida Medical Business Journal by Stephen Snyder

At the end of a long day, you take the time to advise your morbidly obese patient, who complains of frequent shallow breathing and chest pains, that he should exercise regularly, reduce caloric intake and immediately visit a specialist. Taken aback, he explains that you shouldn’t be concerned because he “has health insurance coverage with a low hospital co-pay” and, after all, “heart attacks are pretty rare, aren’t they?”

While your patient’s response to your recommended preventive medicine is absurd, many physicians unknowingly behave like him when confronted with preventive legal medicine. Regardless of insurance coverage, litigation is unpleasant and the practice of preventive legal medicine can greatly reduce the likelihood of being sued and any potential liability.

When practiced effectively, preventive legal medicine is patient-centric and employs consistent habits or disciplines that reduce potential liability. As a result, an ounce of preventive legal medicine often saves a physician a pound of legal cure.

Habit #1: Focus on Relationships

A host of recent studies have reinforced a fact that we all know instinctively to be true. A person is less likely to sue someone he or she likes. In the context of medical malpractice claims, both anecdotal and empirical evidence supports the notion that a patient is far less likely to sue you if he or she likes you.

As you know, building strong relationships with your patients takes time. While some of us are simply more likeable than others, there are certain things you can do to build a positive relationship with your patients.

First, seemingly small tokens of your appreciation, such as annual birthday cards, may pay dividends. Second, respecting your patients’ time fosters healthy relationships, while double and triple booking often strains these relationships. Finally, bedside manner is critical. Attitudes and words expressed in this setting sometimes act as a litigation catalyst for a patient who may be unsatisfied with a treatment outcome. … [continued below]

Habit #2: Set Realistic Expectations

Setting honest, realistic expectations and appropriately disclosing possible risks is central to maintaining a healthy doctor-patient relationship. Further, documenting these disclosures is fundamental to preventing litigation.

Under Florida law, you have an obligation to obtain your patient’s informed consent. If you unjustifiably minimize the potential risks, you are not satisfying your legal obligation to your patient and you are setting yourself up for failure since a certain percentage of your patients will experience complications.

While shrinking reimbursements and skyrocketing costs may require you to delegate many tasks to your non-physician staff members, it is critical that you remain actively involved in the informed consent process. It is essential that you take the time to develop a rapport with your patients regarding the risks and benefits associated with a given procedure, together with other possible options. Moreover, it is critical that you thoroughly document this discussion and obtain any required written consents.

Habit #3: Schedule and Track Critical Information

Many busy and successful practices do not appropriately calendar and track key information that is critical to the wellbeing of its patients. This administrative breakdown can cause a practice to become a contributing factor in a tragedy when a specialist fails to provide the office with a report, the lab is slow in forwarding results or a patient fails to appear for an important visit. While the root cause of these calamities is the negligence of a third-party, an unwary physician may be culpable if he or she fails to detect the problem.

Some offices have had success using a comprehensive paper tracking system. Many other offices have discovered that simple technology (such as practice management software) can provide efficient office management assistance. While the choice of a particular system is yours to make, it is very risky not to have any system at all.

Habit #4: Document, Document, Document

It is critical to thoroughly document each patient encounter. Failure to do so may make it impossible to convince the court that you asked the right questions and took certain appropriate steps.

While there is not simply one ‘correct way’ to document encounters, there are certain important rules to keep in mind. First, your writing should be, generally speaking, contemporaneous to the encounter. Second, it must be comprehensive and show that you have taken the time to understand your patient’s needs and respond appropriately. Third, the writing should be legible so as to avoid any future misunderstandings.

In the context of preventive legal medicine, providing good medicine is step one. The essential second step is to document, document, document.

Habit #5: Make yourself Less Attractive

When a plaintiffs’ attorney meets with a potential client, he or she tries to develop a sense of how much can be recovered in damages and how difficult it will be to prove the case. If the attorney accepts the case, he or she continues to consider these factors as the matter proceeds.

Avoiding malpractice and practicing preventive legal medicine are the main ways to make yourself less attractive to a plaintiffs’ attorney; however, asking your patients to waive certain rights may also strengthen your position… [continued below]

Summary

By employing preventive legal medicine, you can significantly decrease the likelihood of becoming a defendant. Best of all, preventive legal medicine is easy to practice and it will enhance your patient’s satisfaction and care, keeping you in the hospital and away from the courthouse.

Disclaimer: The information contained within the MTBC® Learning Center is provided for general educational and informational purposes only and should not be construed as legal advice. The author of the Learning Center does not represent the Web site user or the individual submitting a particular question. Please seek the advice of legal counsel to address any specific questions you may have regarding your particular facts or circumstances