Where Medicine Meets the Law

Early influencers to litigation and how to increase your liability I.Q.

By noon, it had already been a long day for Dr. David Ruiz—unfortunately, it was about to get longer. While his partners were out during lunch, he was the only physician in the office when a panicked staff person announced that a man in the waiting room had chest pain. Dr. Ruiz conducted an initial clinical assessment, but because of the patient’s drug allergies, he had few choices for treatment. That was in 1985—two years later Dr. Ruiz found himself in court with a judgment against him for $12,500.

Deeply motivated to provide good care to his patients, Dr. Ruiz took this as a personal blow. He worried that he had caused harm to his patient, wondered why the patient was so affronted by the delivery of care, and found himself unable to talk about it with peers due to the confidentiality of litigation—leading to isolation and an emotionally draining process.

Today David Ruiz, MD, a program director for family medicine residents at PeaceHealth Southwest Medical Center, draws from that personal experience to help residents develop their own sensibility around liability and learn better practices for avoiding a lawsuit. But this isn’t the norm. In fact, according to some of his peers, most physicians don’t learn about liability until they’re faced with a claim.

“Some will be able to absorb and understand what litigation is early on,” says Amy Forbis, a defense attorney and partner at Bennett Bigelow & Leedom. “It varies depending on the practitioner and personality. Others may not have a sense of it after years of practice, and even some in the throes of litigation still won’t connect where and how medicine and the law meet.” And that’s the challenge of educating today’s medical students and new-to-practice physicians—when and how to teach them about risk and liability during an already jam-packed education schedule. Says Dr. Ruiz, “Even though there may be an underlying sense of anxiety that liability is part of our professional lives, it doesn’t become real until there is an incident. We need a better way to imprint this idea on their thinking.”


At a macro level, it can be argued that the top reasons for adverse outcomes or patient complaints leading to litigation stem from poor physician-patient communication, a lack of informed consent, inadequate documentation, and a failure to diagnose—three of which have relatively little to do with the actual medicine and more to do with the physician-patient interaction. “Being more cognizant of those things that get us in trouble or those phrases and words that keep us out of trouble—all these should and can make us better clinicians,” says Dr. Ruiz. Forbis agrees: “I constantly talk about and represent in litigation the need for contemporaneous documentation during
a patient visit.” Contemporaneous documentation, an important skill, occurs when physicians articulate their thoughts during the patient visit, being mindful of why they are dismissing or attributing diagnoses, and making sure that they document what they intuitively absorb.

Even when it is evident that the physician spent the proper amount of time with a patient—and some time was spent explaining procedures—if the documentation is skimpy and doesn’t support the physician’s story, the case becomes a “he said, she said” scenario. When this happens, suggests Forbis, it becomes difficult to convince a plaintiff’s attorney not to file a lawsuit. “When documentation is good, when a physician does it right, most good [plaintiff’s] attorneys won’t take the case. This means the physician avoids depositions, trial, and a world
of grief.”


But documentation is only part of the equation. It’s easy for physicians to focus on the medicine at the expense of the office practice and procedures. “Put up good protocols and practice them,” notes Forbis. “Revisiting them annually [or more frequently] is a good idea to ensure they are reflective and appropriate to the time and needs of patients, and needs of the practice.” Linking all aspects together—medicine, staff, physician extenders, and office policies and practices—helps to not only minimize the risk of an adverse patient experience, but actually improves the delivery of the care.

Some physicians argue that doing all these extra steps is impossible in today’s typical medical practice. For sure, with a 12-to-15 minute office visit, and churn of 40-plus patients a day, taking 90 minutes to review patient flow from the parking lot to waiting room to exam room, or an hour to brainstorm a more efficient way to handle urgent care patients—these can seem like unreasonable demands on an already full schedule. Forbis notes that “doing these things may seem like an impossible task, but you have to in order to better your patient care and improve your practice, not just to avoid getting sued.”

Aparna Ananth, MD, an anesthesiologist with Pacific Anesthesia in Tacoma, Washington, supports the idea that paying attention to these details can lead to positive patient outcomes. “Physicians who don’t really understand how liability works will order every test and procedure in an attempt to protect themselves. This not only adds to cost within the system, but may also increase risk. But if you standardize processes, make fundamental decisions on how to run the business of medicine, communicate with your patients in ways they understand, then you improve patient health and experiences.” In other words, a healthy sensibility for liability allows practitioners to improve care overall, rather than resort to aggressively defensive medicine focused not on patient care but avoidance of litigation.


But all this is simply just good advice if physicians are not taught how to document in this manner—which begs the question of when to teach about risk and liability. Notes Dr. Ananth, “The day you hear about a lawsuit is not the best time to learn about it. In business school there are entire courses taught on business and the law; in medicine there may be onlya few hours.” This simply is not enough, according to residency program director Dr. Ruiz. “I’d like to have this be a big part of the latter half of the third year into the fourth year of medical school, not during residency,” he says. During this time in a typical medical student’s career, there is a little less structure and more time for electives. “And,” notes Dr. Ruiz, “we have to move away from the traditional didactic to a case-based or simulation teaching method. This provides the medical student with a chance to think analytically about risks (medical and business) and discuss possible solutions.”

Leslie Struxness, MD, an obstetrical gynecologist with Aethena Gynecology Associates in Vancouver, Washington, agrees. “We need to give more than just lip service in residency. It might not even stick at that point and most new physicians don’t think about private practice anymore, so they aren’t thinking about their own professional liability—they believe someone else will take care of it.” Instead, Dr. Struxness suggests sprinkling liability throughout the curriculum for a more integrated medical school experience. “When you talk about EMR, documentation, patient communications, informed consent—those are teachable moments to also talk about potential liability. Liability doesn’t have to be a separate class or event; it can be woven into short, daily, in-the-moment conversations.”

Unfortunately, the training and education needed may not be what is being taught in medical school. In a 2009 survey conducted by Jackson Healthcare, those who were surveyed estimated that 34 percent of health care costs stem from defensive medicine. And 90 percent of the participants reported practicing defensive medicine in large part because that’s what they’re being taught. For relatively new-to-practice physicians (aged 25-34), 83 percent reported being taught to practice defensive medicine in medical school or residency by an attending physician or mentor. That number falls precipitously for physicians older than 65, with only 19 percent reporting being taught to practice defensive medicine. This means that, according to Gallup and Jackson surveys, “between $650 billion and $850 billion are being spent each year due to defensive, or lawsuit-driven, medicine,”* which means that physicians are trying to do anything possible to avoid a lawsuit even when they know they should be trying to reduce the overall costs of medicine.

But even if physicians receive more liability education and training, how well do they understand the integration between defensive medicine and their effectiveness in patient care? “It’s not just about the medicine,” suggests Dr. Ananth. “Learning about where potential liability exists in your practice can make you a better physician. Having a comprehensive view of risk management, how to minimize or mitigate risks throughout your practice, how to see things from the patient as well as the physician perspective—all of this makes the system work better, improves  patient care, and lowers costs.”

And that ideal presents an opportunity for the next generation of physicians coming into practice—and those who are teaching them. How can the medical education system teach upand-coming physicians about liability and this new perspective while the same physicians are moving further away from choosing and interacting with their own professional liability insurers? “As the practice grows, or if physicians are employed in larger systems or hospitals, they are less involved in vetting and choosing a professional liability insurer. Some don’t even know who their insurer is,”notes Dr. Struxness, who was two years into her own career before she learned who her liability  carrier was—and that was because she was being sued.

*Jackson Healthcare, “Physician Study: Quantifying the Cost of Defensive Medicine,” accessed January 24, 2014, http://www.jacksonhealthcare.com/media-room/surveys/defensive-medicine-study-2010.aspx.