Thursday, June 4, 2015

How to avoid lawsuits

Doctors call it defensive medicine. They order extra tests, perform extra procedures or push for more office visits because they think that without them, they’re at greater risk of being sued.
But studies don't support the notion that this extra precaution reduces their risk.
What might help physicians avoid being sued is getting along better with their patients. Or at least, they could become better communicators.
Sometimes, when confronted with such assertions, doctors lash out. It’s the system’s fault. It’s the lawyers. It’s greedy patients. But these declarations ignore one important fact: Lawsuits aren’t random. Some doctors are sued far more than others.

As far back as 1989, a study of obstetricians in Florida found that about 6 percent of obstetricians accounted for more than 70 percent of all malpractice related expenses over a five-year period. These physicians did not just have a short run of bad luck. A follow-up study found that one of the most significant predictors of being sued was being sued in the past. Doctors who are sued are different in some way from those who aren’t.
Now it’s possible that these physicians were bad doctors, and that they deserved this. If that’s the case, then this is the malpractice system operating efficiently, and no one would have any reason to complain. But this relationship held true for both paid and unpaid claims. Some doctors were more likely to be sued, regardless of whether the cases against them were eventually found to have merit...
No one is minimizing the difficulty of changing doctors’ behavior. Learning to be better communicators, and to be better at — in essence — customer service is no small task for physicians. But improving those skills might actually make a difference in whether they are sued. Too many doctors would rather see policy changed than change themselves, even if those policy changes have a much lower chance of succeeding.
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  1. A woman in California is suing her obstetrician because he performed an episiotomy that she had specifically requested not be done. A relative of the patient shot a video of the entire delivery. The portion of the video embedded below begins after the mother had been pushing for about an hour. You can judge for yourself about the bedside manner of the obstetrician. [Emphatically NSFW]

    According to Yahoo, more than 80 lawyers turned down the case before a civil rights attorney agreed to handle it. People who commented cited this as proof that the patient did not have a strong case for malpractice.

    The reason it is not a good malpractice case has nothing to do with whether the doctor was negligent or wrong. In order to successfully sue for malpractice, there must also be damages. In this case, the episiotomy apparently did not cause harm. Therefore, a malpractice lawyer would decline the case because, absent damages, there is no money to be made.

    This case is not about malpractice. It is about the right of a patient to refuse an intervention. While the doctor stood with scissors in hand, the patient can clearly be heard saying, “Don’t cut me.”...

    In early May of this year, I blogged about a bill introduced in the Wisconsin legislature that would mandate that every operation be video recorded. I discussed a number of reasons why I thought it should not pass. But after watching this, I am seriously rethinking my position on video recording of procedures. Maybe it’s not such a bad idea.

    - See more at:

  2. "And really, after five minutes of talking to you in pre-op, I wanted to punch you in the face and man you up a little bit," a doctor can be heard saying in a recording at the center of a lawsuit.

    A patient in Virginia received $500,000 after the operating team mocked him while he was under anesthetics during a routine colonoscopy.

    The patient said he had his phone set to record the post-operation instructions given to him before he was put to sleep. He forgot to turn off his phone during the procedure, though, and when he listened back to what the operating team had said about him, he was shocked.

    "I'm going to mark hemorrhoids, even though we don't see them and probably won't," the anesthesiologist, Dr. Tiffany Ingham, can be heard saying. "I'm just gonna take a shot in the dark."

    The audio, obtained by the Washington Post, was used in a lawsuit against the doctors. The patient sued for defamation and medical malpractice...

    The group joked about the patient having various ailments, such as Ebola, tuberculosis and "some syphilis on the arm or something."

    After the assistant made a remark that the patient was squeamish about looking at his IV, Ingham replied, "Then why are you looking then, retard?"

    Ingham and Shah shared an exchange about patients they called annoying, making comments about their patients, specifically people around Northern Virginia.

    "Here's it's holier than thou, too much Internet use, a little too much information," Shah said.

    "They want to believe what they want to believe. These people are into their medical problems," Ingham said. "Round and round we go, wheel of annoying patients we go. Where it'll land, nobody knows!"


  3. A nationwide survey of nearly 700 patients who either experienced harm themselves or whose relatives were harmed by medical errors reveals that trust makes a difference in whether those patients and families take legal action.

    Of the 1,805 mishaps detailed in the survey, the most frequent were diagnostic errors, surgical or procedural complications, hospital-associated infections and medication errors...

    In many cases, the survey respondents perceived a lack of accountability, disrespect or poor communication from their providers, according to findings published in the June issue of BMJ Quality & Safety.

    And when patients or their relatives perceived the health system as untrustworthy or designed to hide fault, they were more likely to take legal action. ..

    "Patients are not asking for something that is unrealistic,” added study co-author Julia Hallisy, president of the Empowered Patient Coalition. They want honesty and perhaps an apology, she said. "But the system is not designed to support either."

    Anxiety over potential lawsuits and the fear of retaliation from their employer are often cited as impediments that prevent clinical staff from owning up to a mistake. But establishing a venue where clinicians can discuss mishaps and possibly prevent future harmful incidents from occurring is critical to creating the "culture of safety" that is often talked about, yet difficult to achieve in healthcare...

    “When a patient is injured, providers feel guilty,” Southwick said.

    But, as Southwick and many others have noted, "Errors are often complex and a high percentage are caused by system defects rather than the individual." ...

    According to an analysis of the narratives, many individuals felt "a desperate need for answers that never came.”
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