Tips from the Trenches: Practical Advice on How to Reduce Your Risk of Being Sued

Elizabeth A. Leedom, JD

Every provider practices in the knowledge that someday he or she may be named as a defendant in a malpractice suit.

The fear of being sued is not unfounded, as more than 75% of physicians in specialties that are considered “low risk” for malpractice claims will be sued before reaching 65 years of age. So how does one mitigate the risk of being sued? The following discussion looks at some common causes of malpractice claims, and how to lower your risk of being sued in each of these areas.

1. Failure to Follow Up on Abnormal Test Results

Given the sheer number of test results the average healthcare practitioner handles, it’s easy to see how something could slip through the cracks. If an abnormal test isn’t acted upon, and later turns out to be significant, the volume of test results alone isn’t an excuse that a jury is likely to accept. You need a reliable system with more than one check to be sure that potentially significant results are read, acknowledged, and conveyed to the patient—and that proper follow-up occurs. Many electronic medical record (EMR) systems have procedures in place to help facilitate this. But as we have seen in several recent cases, sending an electronic request to medical assistants to contact the patient may not be enough. Is there evidence in the chart, for instance, that the patient was actually called? It is critical that these efforts to reach patients are timely and thoroughly documented. The amount of effort that’s reasonable to expend in trying to reach a patient depends on the seriousness of the test result, within the context of the patient’s clinical picture; more concerning results obviously require additional effort.

It’s also important, when seeing the patient again, that you take the opportunity to look back through the patient’s progress notes and lab tests to see if there are any abnormalities that have not already been addressed. In most EMR systems, the Results tab can conveniently show you any recent abnormal results.

2. Failure to Diagnose a More Serious Condition

Failures to diagnose and delays in diagnosis are probably the most common reasons patients sue their physicians. Such claims are often based on hindsight, but can be tricky to defend, because the undiagnosed condition was likely present when the care and treatment at issue was given.

In defending failure-to-diagnose claims, I frequently find that the defendant physician actually did consider what later turned out to be the correct diagnosis, but the clinical picture did not support that diagnosis at the time. Unfortunately, the physician’s clinical judgment in the moment, as to why the diagnosis did not fit, was often not contemporaneously documented. I therefore encourage you to always document your medical reasoning—write down the specific reasons why you place the more serious diagnosis lower on your differential. If your judgment later turns out to have been in error, the jury will at least know that at the time, you thought about the possible diagnosis but determined that it didn’t fit the facts of the case. A jury that understands that will be more willing to give the physician the benefit of the doubt. If there is no documentation of your medical decision-making, on the other hand, the patient’s attorney can easily argue that you didn’t even think of the diagnosis at all.

3. Dealing with a Bad Outcome

No one wants his or her patients to experience a bad outcome from medical care. Accordingly, there’s a natural instinct among doctors to distance themselves from their patients who have experienced such an outcome, so as not to be reminded of it. That is the opposite of what the patient needs, and the opposite of what will reduce your risk of being sued in that unfortunate event. Instead, make it a point to meet with the patient and their family members, often and without time pressures, to acknowledge that the outcome was not as everyone had hoped. It’s okay to express sadness or regret that this outcome occurred—even legally. Under Washington law (RCW 5.64.010), expressions of apology are not admissible as evidence if they’re made within 30 days of the patient’s injury. (Similarly and under the same statute, offers of payment of medical expenses are not admissible in a later malpractice action.) Be prepared to explain what happened and how. Be sure to ask the patient and their family if they have any other questions—and enlist referrals to other specialists or social workers to try to lessen the impact of the bad outcome. Your insurance company and/or your hospital should have risk-management specialists who can help; do not be reluctant to reach out to them.

4. Occurrence of a Risk or Complication from a Procedure

A thorough informed-consent discussion is key to defending against a suit based upon a later risk or complication. If you’ve taken the time to explain the specific risks and possible complications to the patient beforehand, the fact that the complication did in fact occur will be more understandable to the patient. Be sure to take advantage of any patient-education materials on the specific procedure to be done, too. Many professional societies, insurers, and even medical-device manufacturers have excellent, patient-friendly materials describing common procedures. It’s always important to document the specific risks and complications that were discussed, and you can work with your EMR specialists to create smart phrases, applicable to your practice, that can be used to simplify this documentation process. It’s also important to develop a custom and practice of explaining to patients that even though a risk may be low, undesirable outcomes can and do happen, and therefore could happen to them. Statistics are fine in conveying this information—but remember, in an individual case, the chance of experiencing the complication is either 0 or 100%.

5. Communicating with Patients Outside the Chart via Cell Phone, Social Media, and Email

While communications outside the chart may not be the reason a patient brings a lawsuit, such communications may make your case more difficult to defend. First, communication through such nonsecure routes may violate state and federal privacy provisions. Second, such communications are likely to be saved by the patient, and could later be used against the defense in a lawsuit. Third, the casual nature and tone of the communications may not give a sense of professionalism and appropriate physician-patient boundaries in the eyes of a jury. (Can you imagine how a jury might react to an emoji-laced text telling the patient that his or her post-op pain is not unexpected and doesn’t require further evaluation?) Finally, communications outside the chart are not available to other members of the care team who may need the information, setting up potential communications failures.

Most EMR systems provide patients with the ability to communicate non-urgent matters via secure email. Such email communications are part of the chart and meet privacy requirements. If you do communicate with a patient after-hours on your cell phone, either log into the chart remotely to document the call, or make a note to add the communication to the chart when you have the opportunity. Texting with patients is very problematic, as you may not see the text or respond to it right away—plus, the information is difficult to put into the chart later.

6. Lawsuit Risk-reduction Strategy: Build Solid Patient Relationships

While the odds of being sued during your career are, statistically, unfortunately high, having a good professional relationship with your patient can at least make the patient more reluctant to sue, and more likely to say good things about you at a deposition, if it comes to that. Such relationships are built over time, on a foundation of good communication. Taking the time to listen to your patient, to directly answer his or her questions, and to explain your medical thinking and proposed treatments in understandable terms will help build this foundation.

Elizabeth A. Leedom is Vice President and Corporate Secretary at Bennet Bigelow & Leedom, P.S. and is an experienced trial lawyer representing hospitals, physicians, and other providers. She is regularly selected on the “Super Lawyers” and Best Lawyers® lists, most recently in 2017 when she was also selected to the Top 50 Women Lawyers list.