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Wednesday, November 28, 2018

Common Areas Where Physicians Get Sued

When one thinks of medical malpractice, it is easy to just think about surgical errors or lawsuits involving unfortunate outcomes.  In June of 2018, Rhode Island Hospital entered into a consent agreement with the State Department of Health after reporting four patient errors in four consecutive weeks.  These preventable errors included  performing the wrong tests on the wrong patient and performing a spinal procedure on the wrong part of the spine.  These are the stereotypical types of claims that are associated with physicians being sued, but there are three  more common areas where physicians often find themselves embattled with litigation

1.  Failure to obtain informed consent.  When a physician intends on performing a procedure or operating on a patient, he or she must get informed consent from his or her patient.  This is typically accomplished by having the patient sign a form labeled "informed consent" which is full of that small fine print language us lawyers love to use.  While this is often enough to protect physicians from claims of failure to obtain informed consent, it is much easier to fight of lawsuits if the physician has taken the time to properly sit and explain the risks, benefits, and alternatives of the offered treatment to the patient.  As an added bonus, this often leads to better patient care as well as an improved relationship between the physician and the patient. 

2.  Maintaining illegible or incomplete documentation.  While this is often linked to a medical malpractice claim, a physician's illegible or incomplete medical records are often pushing attorneys to file suit on the patient's behalf.  It is much easier for an attorney to argue that a physician did not engage in proper protocol related to patient care if the physician's notes cannot be read or if there are obvious missing information from the medical records.  If a patient's medical records contains a missing medical history section it can be presumed that the phyisican did not inquire about the patient's medical history.  Furthermore, if (as is happening a lot these days) the medical history is just copied and pasted from the last visit, and is therefore not updated with any new medical issues, it can be inferred that the physician was unaware of the new medical condition or did not take the time to ask.  Physicians are under a lot of pressure these days to see as many patients as possible while, at the same time, are under a lot of pressure to have near perfect medical records.  While a bottom line profit is important, it is far more important to make sure that a patient's medical records are as thorough as possible, which will help bolster patient care.

3.  Failure to refer when appropriate and failure to track referrals.  Some physicians (not to mention some lawyers, counselors, teachers, as well as every other profession out there) are afraid to tell someone, "I do not have the answer you need, you will need to ask someone else."  There is nothing wrong with asking for help.  Actually, in the medical world, there is something wrong with not asking for help when you need it.   In the medical world it is called a referral to a specialist and physicians can get in serious trouble for trying to handle a patient's issues that fall in an area of medicine they are not specialized in.  Additionally, phyisicans can get in trouble for making an urgent referral and never following up on it.  For example, if a physician finds a specicious looking shape on an imaging study and refers the patient to a specialist, that physician needs to make sure the patient actually goes to the specialist.  While it is not the responsibility of the physician to physically drive the pateint to specialist, implementing a system to track referrals can improve patient care and reduce liability exposure. A system to track referrals can help a phyiscian verify that the patient kept the appointment, confirm the receipt of the consultant report, prompt a call to the consultant if a report is not received; make sure the physician sees the report, and arrange for a follow-up appointment, if necessary.  Circiling back to an earlier point, all of the steps the physician, or his or her office has taken on his or her behalf, should be properly documented in the patient’s chart.  

If you are a physician who needs legal advice or a patient who has questions about your care and treatment, please feel free to contact the Law Offices of Samuel S. Reidy for a free consultation.

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