Litigation Landscape: Your GPS for Avoiding Legal Action

MATTHEW KERIS
Chair, Electronic Medical Record and Audit Trail Practice Group
Marshall Dennehey

We all love getting suggestions on places to visit, events to experience and books to read, but there is not a person alive who recommends being sued in a lawsuit.  It is never a pleasant experience and it can cause anxiety, self-doubt and stress that disrupts and negatively impacts all aspects of a person’s life.  The best advice is to avoid being sued, but that can be easier said than done.  However, there are common sense measures psychiatrists can take to minimize the risk of being sued under a professional liability claim.

Don’t underestimate the personal approach

First, a good bedside manner goes a very long way in preventing a lawsuit.  Be nice to your patients.  Talk to them. Listen to what they are saying.  Share something about yourself with them. If a patient genuinely likes you, they are less likely to sue you. If you take that extra minute with a patient and show you are genuine, you can significantly lessen the chances that they would ever consider making a claim against you.

Documentation is Key

A second recommendation to avoid a lawsuit is to make sure your documentation is complete and accurate.

  • Take the time to proofread your entries.
  • If you are using an EMR system with drop-down options, make sure you are selecting the accurate choice, not the closest, next-best option. If there is no correct drop-down choice that fits, make sure to use a narrative note to adequately document the precise finding.
  • Avoid negative references or criticisms of the patient in your documentation, and instead use clinical or more general descriptive terms.
  • If there is an interaction with the patient that is out of the ordinary, make sure to include it in the chart and use quotation marks around specific comments said during the visit. For example, “patient reminded to take medications and responded, ‘I am sick and tired of taking pills that don’t work and cost me money, so I’m not taking them.’”
  • It is important to be specific in documenting patients who are refusing treatment or recommendations. If you do not capture these instances, there is a very good probability you will forget that it took place, and you may later question why the patient did not undergo a certain treatment or remedy.
  • Avoid copying and pasting.
  • Lastly, interact with the patient, not the laptop during your visit. A common criticism of health care providers is that they are paying more attention to the computer than the patient. Do not hurt your relationship with your patient because you want to document simultaneously to providing care. It is more appropriate to chart immediately after the patient visit. Good charting practices go a long way in preventing a lawsuit.

Dealing with Record Requests

Another way to avoid a claim deals with responding to patients requests for their records.  Patients make requests for copies of their records all the time. Record requests can be motivated by several reasons, such as the management of their care, answering personal questions about their care or so that a lawyer and their medical expert can evaluate the care for purposes of considering a medical professional liability case.

  • If your office gets a records request, make sure the response is timely, complete, and accurate.  It may mean providing information beyond what is considered the traditional chart.
  • Avoid conclusions about what you think the patient is looking for so you can limit the records production. Far too often I have encountered records custodians who make their own judgment as to what should be turned over, or not, and this practice could lead to more questions by the patient. In addition, in instances where an attorney is considering a lawsuit, if a partial chart is turned over, a decision to sue might be made on inaccurate and incomplete information. For example, if the decision to sue is based on the failure to follow up with a patient, not producing a phone message from the patient cancelling the appointment could lead to a lawsuit being filed. However, if the phone message cancelling the appointment was produced, then it is less likely that a claim will be pursued. If the patient does not get the complete clinical record, including emails or other documents upon a records request, it could lead to more problems in the future. Make sure you are providing the complete record without picking and choosing what you want the patient to have when responding to a request.

Over the course of my 25 years representing and defending healthcare providers, I have learned that one of the most common reasons why patients file lawsuits is because they have unanswered questions about the care rendered, particularly when it results in a negative outcome. If healthcare providers do not provide adequate responses to patients’ questions, they can go to a lawyer and seek those answers. So, if a patient or their family member has questions about the care rendered, do not avoid or ignore this opportunity to squelch a future potential claim. You should prepare yourself and meet with the patient or their family and try to provide them the best answers to their inquiries.

Responding When Something Bad Happens

Speaking to a patient after a negative result has risks, but if prepared in advance, those risks can be minimized:

  • First, consider reporting the event and the patient request for a meeting with your professional liability carrier or in-house legal counsel. They can provide advice on how to respond to the questions and things to avoid.
  • Second, prepare yourself for the meeting by reviewing the patient’s record in detail. The person you will be meeting with will certainly have done so in advance. You should be more familiar about the record than them, so you appear confident and interested in responding to questions. Again, be nice and do not appear aloof, distracted, or rushed.
  • Be careful not to speculate or provide inaccurate or partial answers. You may need to explain why you do not have answers to specific requests.

By following these tips, you are increasing your chances of a positive result from a meeting with a patient or family member after a bad outcome than by not meeting with them at all.

Consider the “Benevolent Gesture”

Lastly, you should determine if your state has what is referred to as a “benevolent gesture” statute in advance of a patient or family member interaction. The “benevolent gesture” statutes provide an opportunity for healthcare providers to express sympathy toward a patient or family member after a bad result without fear that it would be subsequently used as an admission of liability.

These statutes provide specific guidance as to what can be said by a healthcare provider and not be used against them later. For example, the statute may provide protection if you say, “I am sorry for your loss” but may not protect the statement “I admit, it is my fault that your mother passed away.” You may need to specifically script out in advance of the meeting what can be said to avoid it later being used as an admission of liability. The best advice is to receive legal guidance on the issue of the appropriate “benevolent gesture” before meeting with a patient or family member after a negative outcome.

Empathy and transparency, rather than silence, helps prevent lawsuits. This runs against what healthcare providers were counseled to do in the past. Do not make the mistake of an ostrich and bury your head in the sand when trouble lurks. Meet it head-on, prepare yourself and be ready to provide answers to hard questions. By doing so, you may avoid the stress of several years in litigation with an uncertain outcome. You owe this to yourself and your patients.

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About the Author

Matthew Keris is Chair, Electronic Medical Record and Audit Trail Practice Group, at Marshall Dennehey. Matthew has defended health care providers, large businesses and device manufacturers for more than two decades. He has developed substantial expertise in electronic medical record (EMR) preservation, production and discovery matters. As a resource for clients and the legal community on issues pertaining to the EMR and AI, Matthew’s commentary is routinely sought by legal publications. His counsel is routinely sought by health care providers, administrators, risk managers, claims professionals, defense counsel, medical societies and governmental entities on issues pertaining to legal, ethical and patient safety matters.

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