Simple Ways to Ward Off a Lawsuit

The other day, a very good friend of mine and I were creating training material for my residents. Tony is an attorney, but he's the good type. Almost all of his law practice is medical malpractice defense. During the brainstorming session, he gave me a few important nuggets that I would like to share with you.

First and foremost, be a good physician, because outcomes do matter.

Always practice good, sound medicine. Even the very smartest, most brilliant physicians will get sued. It's the nature of our business because we deal with the most precious thing people have - their life. We are also human and sometimes things don't go as planned or as hoped. It's really how we handle the less than satisfactory outcomes that will really determine our malpractice risk. A good physician is a good communicator. Take the time to discuss the expected outcomes with the patient and his family. Be honest with them. Don't tell them what they want to hear, but what they can expect to occur. I know we don't want to crush their hopes or make them despair. However, if we set or allow for the establishment of unrealistic expectations, we actually can do more harm than good for everyone involved.

Be nice, patient, and compassionate.

Outcomes may matter, but what really influences people the most is how we make them feel. It is very likely patients will not remember most of what we share with them. It can be difficult for laypeople to understand the foreign language we speak sometimes. Frequently, the words and stuff will get jumbled up, words will be switched around, or brand new words will be created. However, I guarantee they will always remember how you made them feel. Those feelings are based in emotions, and emotions are what drive decisions and ultimately lawsuits. Take time with your patients; solicit their questions, express compassion and understanding for what they are experiencing. That honestly is one of the best defenses against a lawsuit.

Documentation can only help you.

In our hectic worlds, making certain we document events, conversations, and decision processes can easily be skipped. We think we will get to it later but ultimately forget. Get things down on paper soon after they occur, so the details do not fade. This serves to help record your decision-making process. Hindsight is always 20/20, but we operate with imperfect data sometimes trying to make the best decisions for our patients. Recording the data available and the decision-making process used to arrive at a particular decision is important. It can help prevent a lot of the armchair doctoring that goes on.

Always call your attorney first.

Many good physicians have been unwittingly dragged into lawsuits because they didn't seek legal counsel first. If you are served with papers or if an attorney who doesn't represent you phones, you should immediately call your attorney. Nothing is worse than becoming a fact witness against the defense or being named in the lawsuit because of the way you answered an objectionable question. Lawsuits are serious and they lie outside our area of expertise. Always call an expert.

Remember, healthcare is two distinct parts: the process and the outcome. The latter can get you sued, but how you handle and behave during the process can protect you.

David J. Norris, MD, MBA, CPE, is an anesthesiologist at Wichita Anesthesiology Chartered in Kansas, the owner of the Center for Professional Business Development, as well as a member of the Physicians Practice Physician Advisory Board. How do you protect yourself against a potential lawsuit? Tell us at editor@physicianspractice.com. Unless you say otherwise, we'll assume that we're free to publish your comments in print and online.

This article originally appeared in the March 2015 issue of Physicians Practice.