Compassion, communication, and documentation will help to prevent most medical-malpractice lawsuits

We are attorneys who formerly defended many hospitals and physicians—including plastic surgeons—in medical malpractice cases. After leaving the medical malpractice firm and opening our own office, we have sued many physicians on behalf of patients.

Over the years, we have asked ourselves: Why do some physicians who make a mistake get sued, whereas others who make the same mistake do not? What could those physicians have done to prevent or minimize the risk of being sued? Why is it that some clients refuse to sue one of the involved physicians? It is always interesting to us when interviewing a prospective client that the client would agree to sue one treating physician but would adamantly refuse to sue another, even more culpable, physician.

Over the years, a pattern has emerged. You can never completely protect yourself from getting sued, but there are definitely things you can do to minimize the risk.

Plastic surgery is an art form. Patients run the gamut from those who seek plastic surgery to “solve” lifelong problems that have caused deep emotional trauma to those who simply want to enhance themselves to look the very best they can. Here are seven tips we have developed over the years to minimize your chances of getting sued, regardless of the type of patient.

Tip 1: Have a Good Bedside Manner

Be nice. This tip is easy for most, but difficult for some. If lawyers could pick one piece of advice to magically instill in their physician clients, this would be it. A great bedside manner has helped more physicians avoid lawsuits than all other tips on this list combined.

Occasionally, while we were defending physicians in lawsuits, the attorney representing the plaintiff would not name one of the treating physicians—sometimes the physician most responsible for the patient’s injuries. When we contacted the patient’s lawyer and asked why, the lawyer would invariably respond with words to this effect: “My client just could not sue that physician because he was so caring and nice.”

Similarly, we have interviewed patients who sought to sue for medical malpractice but adamantly refused to sue one of the treating physicians, even when we tell the clients that we may not be able to sustain their cases unless that physician is named as a defendant. Many times, these clients will tell us that they just cannot sue a particular physician, because they believe that the physician’s caring attitude excuses any mistakes that physician may have made. These experiences have convinced us that a great bedside manner is critical to minimizing the risk of being sued.

A caring bedside manner is easy for some physicians. They are naturally interested in people, find it easy to smile, and show that they are deeply concerned for their patients through their body language and oral communications. Some, however, have difficulty showing this concern; their demeanor may be stiffer, and perhaps may give an impression of indifference.

Those of you who have this difficulty should hire kind and caring support staff. Make sure that the person in your office who has the most contact with your patients is nice. Instruct your nurses and technicians to be caring toward your patients. Their compassionate attitude will go a long way toward compensating for any deficiency you have in this department.

The end result is simple. No matter how easy or difficult it is for you to have a great bedside manner, it is essential that your patients feel that you and your staff have a genuine interest in and concern for them. Patients will think long and hard before suing physicians who they perceive are genuinely concerned about their well-being.

Tip 2: Trust Your Gut

We cannot tell you how many physicians we have defended have told us, “I knew this patient was going to cause trouble the mo­ment I met her,” or, “I should have passed on this patient because something he said did not sit right with me.” More often than not, physicians who have been sued tell us that they went against their instincts when they agreed to treat the patient.

Intuition is usually correct: Physicians seem to know who the problem patients will be. There is just a sense upon meeting them that they spell trouble. If you have a concern about a patient, trust your gut and either refer the patient to someone else or take extra time to document all of your discussions with the patient.

Tip 3: Inform, Inform, Inform

Informed consent is a major issue in almost every lawsuit filed against a physician. It is one of the first factors a plaintiff’s attorney analyzes when considering a potential case. It is also one of the first defenses your attorney will look for should you get sued. A well-documented informed consent is a critical shield that every patient’s chart must contain.

The law of informed consent states that a physician must communicate known risks and complications to the patient so  that the patient can make an informed decision on whether to go forward with the procedure. The physician need not communicate every possible risk, but he or she must communicate those that would be material for a reasonable patient to make a decision about the procedure.

You should inform patients about the potential risks and complications yourself. Some physicians have their nurses perform this task, but, in our opinion, the physician who delegates this very critical issue to a staff member is taking a big risk. Not only does it come across to the patient that the physician does not have enough time or does not care enough to talk to the patient about the good and the bad, but there is also the chance that the staff member will fail to do it or will not do it adequately.

If you are a defendant in a medical malpractice case, you want to be able to testify under oath that the patient was fully informed of the risks and complications because you did it yourself. This issue is often central to a medical malpractice action, so do not let someone else perform this task.

What should a good informed consent look like? First, it should be in writing, both in your notes and as transcribed dictation. It should be thorough and include the material risks and complications of the procedure (for example, bleeding, infection, anesthesia complications, scarring, and nerve damage). You should also have a duplicate informed consent document that is signed and dated by the patient and kept in the patient’s chart. Have someone on your staff review the informed consent form with the patient on the day of surgery and make a notation in the patient’s chart regarding the discussion.

As a plaintiff’s attorney, informed consent is one of the first factors we examine when we consider whether to take a case. We ask the patient what was said regarding informed consent, and we look at the informed consent document and the physician’s notes and dictation. A well-documented informed consent often puts this issue to rest and may prevent a potential malpractice suit.

Tip 4: Document, Document, Document

Documentation seems quite straightforward, yet many physicians do not document their discussions with their patients well enough. When you fail to document properly, the door is left open for a “he said, she said” contest with the patient. This is another aspect that plaintiff’s attorneys look at when they review a potential case. Thorough documentation is a great deterrent to a lawsuit. When there is a dispute as to what was said about a procedure or the risks of a procedure, the written word usually prevails.

Tip 5: Prescribe Preoperative Antibiotics

This is one of the main things that plaintiff’s attorneys get excited about in plastic surgery cases. The reason is that many cases, especially those concerning breast augmentation, involve postoperative infection. When we defended plastic surgeons in postoperative-infection cases, the surgeon almost always failed to administer or prescribe preoperative antibiotics. This oversight made it incredibly difficult to defend the surgeon to a jury, because the average juror believes, rightly or wrongly, that antibiotics will always prevent infection. Plaintiff’s attorneys know this and will jump on a postoperative-infection case in which preoperative antibiotics were not administered.

Tip 6: Call Your Insurance Company

When you think that a patient may be considering suing you, immediately contact your insurance company so that it can provide a lawyer as soon as possible. Most insurance companies have physician help lines that you can use to speak with an insurance representative or an attorney to get advice and assistance in dealing with a potential lawsuit. More often than not, a good defense attorney will be able to help you work through the problem and, with any luck, avoid the lawsuit. Check with your insurance carrier to see what is available to you.

Tip 7:  Do Not Change Your Notes

Finally, if you get sued, do not change your notes. We have been involved in a handful of cases in which the physician, afraid of a potential lawsuit, “enhanced” or annotated his or her notes.

It generally happens like this: Immediately after a procedure, a patient requests copies of her records from your office. (The patient is entitled to these records by law.) Without your knowledge or consent, your staff makes copies of the records and gives them to the patient. Later, a lawsuit is filed, and you “enhance” your notes. The patient’s attorney requests a complete copy of the patient’s chart from your attorney. New copies are made, and they do not match the original copies given to the patient. The patient’s attorney moves to add a cause of action against you for fraud and requests punitive damages. Fraud judgments and punitive damage awards are not covered by insurance. In addition to an allegation of fraud, changing your notes is a sure way to get the medical board involved and have an action filed against your license.

If your notes are poor and you believe that you may be sued, it is better to live with the poor notes than to face a lawsuit alleging fraud and action by your medical board.

We hope that these tips will help you in your practice. Remember: Good communication with your patients, a pleasant disposition, and thorough documentation will go a long way toward keeping you out of trouble and out of the courtroom.

Robert A. Mosier, JD, and Holly H. McGregor, JD, are partners in McGregor & Mosier, a law firm in Laguna Hills, Calif. They can be reached at (949) 609-0488 or robmosier@lawfirm.occoxmail.com.