7 tips to avoid a malpractice suit, according to experts

By Naveed Saleh, MD, MS
Published June 30, 2021

Key Takeaways

The menace of malpractice litigation—and the loss of income and reputational damage that goes along with it—is enough to keep physicians up at night.

As we know, patients sue their doctors for myriad reasons: medical errors, delayed diagnoses, device/technology malfunctions, prescription errors, privacy leaks, billing disputes, and more.

But, according to malpractice experts, many lawsuits are rooted in failures that largely relate to physician communication and trust. It may seem strange, but malpractice litigation has evolved to include patient perceptions and sentiments about failure to communicate and mistreatment, rather than medical errors.

The upside is that such issues are preventable. It’s possible to avoid a malpractice suit by making the patient the center of your practice.

Here are seven tips to consider.

Establish a trusting relationship

Legal experts say that building a trusting and open relationship with patients is key to avoiding malpractice suits. This can be achieved by practicing good communication and spending enough time with your patients to really listen to their concerns, according to an article in Medical Economics. 

So what can you do to make the most of your time with patients? One place to start is by reviewing your patients’ charts before entering the room so you are not spending precious minutes playing catch-up. Once inside the exam room, if you find yourself spending too much time documenting in the EHR—ie, looking at a screen rather than making eye contact with your patient—consider using a medical scribe for data entry.

And beware the pitfalls of using your smartphone in the exam room, which can lead to “distracted doctoring” and potential privacy risks. Read more about how smartphone use can land doctors in hot water, at MDLinx.

Keep in mind that you want to convey compassion to your patient and their family members in order to build trust. Explain things in an accessible and forthright manner, and refrain from using jargon or medical lingo. Be sure to ascertain whether the patient understands, and allow plenty of time for questions.  

Of note, without trust, patients may not disclose certain personal information such as sexual activity or drug misuse that could be crucial to any robust assessment and plan. Additionally, patients who trust their physicians are more likely to comply with treatment recommendations, which is a win-win for all parties. 

Communicate the diagnosis and treatment plan

Treat your relationship with your patient as a partnership. Patients will appreciate a doctor who works with them as opposed to feeling things are being done to them. Therefore, two-way communication is critical. Explain diagnosis and treatment plans in detail, using illustrations or models to explain complex medical issues, as appropriate. But leave plenty of time for questions, deliberation of alternative options—and emotions, as they may arise.

And make sure you have included your rationale for your diagnosis treatment plan. Simply being the best diagnostician possible means little to your patients if they don’t understand your reasoning. Many malpractice suits arise from a lack of communication about diagnosis and treatment plans.

Chart everything

Written documentation of patient visits constitutes evidence in a malpractice case. Patient visits need to be documented as they happen in real-time. Documentation needs to be systematic and thought-out. The assessment and plan have to be well-supported. Lab tests should be reviewed and referrals explained. 

Keep in mind that charting done in retrospect—several years after a patient visit—will likely fail the smell test in court proceedings.

Listen to others on your medical team

Being a physician comes with much training, education, and responsibility. It’s natural for other staff to view the physician as an unassailable leader. But, when other healthcare workers don’t feel empowered to bring up concerns about patient treatment plans, malpractice can happen.

Remember that as a physician, you are only one person. Your staff interacts with patients in other ways and can relay critical information that you may not be privy to. They have a critical role in helping the patient feel comfortable and valued, too. When you treat other staff as equals and invite their commentary and input, patient care can only improve. 

Refer when appropriate

Competent physicians are expected to be masters of their own specialty, but not masters of every specialty. If the standard approach isn’t working, it may be a good idea to enlist the help of a specialist. As always, remember to rigorously document this decision. 

Documentation on the part of the physician is necessary even if the patient is given a referral slip. In case of malpractice, a patient can say they never received the slip. If a patient refuses a referral, document this.

Adhere to protocol

Protocols that help guarantee patient safety are incredibly important in the prevention of medical errors, according to the aforementioned Medical Economics article. One important protocol is to follow up with every referral to check on patient status. Missing a key finding could compromise patient health and result in unwelcome litigation.

In a recent article published in the AAP News, author Robert M. Turbow, MD, JD, details the importance of safety protocols.

“Patient safety measures only work if there is reliable compliance. Distractions, “drift” (ie, the normalization of divergence from safe practices), and routine rules violations are common contributors to medical errors. Ignoring or working around patient safety checks can be factors when the prosecution makes a case for criminalization. All clinicians, including pediatricians, need to understand that taking what may seem to be benign shortcuts can harm the patient as well as end a career,” he wrote.

“Adopting and rigorously following patient safety protocols and initiatives are essential. Not only will routine patient safety adherence decrease the chances that patients will be harmed, it reduces the practitioner’s exposure to medical liability risk and those rare instances of criminal repercussions,” he added.

Basic safety protocols to follow include the following:

  • Thorough handwashing

  • Time-outs before procedures

  • Use of checklists and other safety tools

  • Standardized order sets and office procedures

  • Staff meetings to identify sources of patient harm and report potential errors

  • Encouragement of staff to learn from preventable errors

Obtain informed consent

It is critical to solicit proper informed consent from your patients. Make sure to discuss the advantages and risks of treatment plans, as well as alternatives. And, of course, make sure that patients sign the required documentation for informed consent, as well as any other paperwork. 

Bottom line

The key to avoiding malpractice suits appears to involve valuing patient care and relationships above all else. Empathy and kindness, consistency, and strong communication can go a long way in the mind of a patient. Moreover, keeping the patient interaction at the center of your practice will likely improve your own experience, too. If patients feel heard, valued, and comforted by your care, you can feel better about having fulfilled your role as a dutiful and trusted caregiver. And hopefully avoid litigation, too. 

To learn more about medical malpractice, read 10 malpractice terms that all doctors should know at MDLinx. And click here to read about some of the biggest malpractice cases of 2020.

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