No one argues that physicians have a lot on their plates. Regular challenges include providing quality care to each patient within a fully booked schedule; keeping up with medical record documentation; learning new systems; maintaining current awareness of regulations and laws; and navigating reimbursement issues. In addition, physicians spend a great deal of time educating patients and managing expectations for treatment, yet they still encounter the non-compliant, demanding or dissatisfied patient.
These circumstances can create a charged environment. Add into the mix a disagreement with a colleague, an unanticipated outcome in patient care, or a notice of a lawsuit, and the environment gets even hotter. Many providers have rushed to confess their shortcomings or criticize a colleague’s care (which can appear to be self-serving), only to learn later that the outcome was unrelated to the care given or, in the case of criticizing a colleague, that there were additional factors that influenced treatment choices. In the tense environment after an adverse outcome, providers may say things to patients or document opinions in the chart that are not objective and do not serve to promote patient care.
Sometimes a subsequent treating physician (knowingly or unknowingly) acts as a trigger for the filing of a lawsuit when he or she makes a remark to the patient that is critical of a prior physician’s care. In addition to a physician’s verbalizing his or her subjective opinion to the patient, similar comments expressed in the medical record do not meet the patient’s clinical needs. Some physicians have actually found themselves pulled into the litigation process when they make remarks to a patient about another provider’s care, only to learn that there is an active suit in progress. The following scenario shows how disparaging remarks can help a plaintiff’s case that is already underway.
A surgeon performed an angioplasty and stenting on a 55-year-old male patient who had suffered an acute myocardial infarction. One week later, the patient experienced a pulmonary embolism and a chest infection. He also developed an aortic aneurysm. He was then treated at a clinic over a two-week period. The physicians at the clinic were able to resolve the chest infection with a drain but did not address the aortic aneurysm. Following the patient’s clinic stay, he returned to the surgeon, who performed a second procedure to address the aortic aneurysm. Because the patient had enjoyed a good rapport with the physicians at the clinic, he decided to see them for follow-up care. During one of these visits, his primary treating physician told him that he was “lucky to be alive” because the surgeon clearly did not perform the first procedure properly. The physician documented this conversation in the medical record. Unbeknownst to the physician, the patient and his family had recently filed a claim against the surgeon, alleging negligence resulting in his poor post-surgical course and need for additional surgery.
In addition to speaking negatively about another provider’s care and documenting those comments, this physician—who did not know that the patient was entering into litigation with the surgeon—was soon subpoenaed for deposition by the patient’s attorney.
A physician’s ability to respond appropriately to patient-care situations involving other providers is crucial. Expressing oneself objectively in both written and oral communication is key to promoting continued patient care and, if applicable, defense of a malpractice claim.
Risk Management Recommendations
Communicating with the Patient
Contact your insurance carrier’s Risk Management Department for assistance with communicating with patients.
If the patient asks you to comment on the treatment or role of other healthcare providers, only comment on your own care and interaction with the patient.
When conveying to the patient and family what is known about an unanticipated outcome, avoid speculation and blaming anyone.
If a patient asks a specific question about an unanticipated outcome, and the cause is not yet known, an honest answer might be, “I don’t know” or “I don’t know yet.”
Communicating with a Colleague
Access your Clinical Quality Committee or Medical Director/Medical leadership as appropriate for assistance with handling concerns regarding clinical patient care provided or with patient inquiries regarding a physician’s care provided.
Review the patient’s record, previous studies, etc., to prepare for the discussion. The better prepared you are with the facts, the more likely you are to maintain a cool head; conversely, plunging into a conversation with little information and a lot of emotion pulls attention away from proper patient care and management of the event.
Find a quiet place to have a discussion; this demonstrates respect for the work environment and also protects patient confidentiality.
Discuss disagreements about care objectively; ask for clarification.
Documenting in the Medical Record
Document in a timely fashion.
Focus your chart documentation on your care of the patient.
Document discrepancies using objective language.
If addressing the contents of comparison reports, prepare a formal, written report for all studies that includes review of previous reports and, if indicated, comparison of previous images when possible. State if previous reports and images are not available and any attempts to obtain them.
Blame or disparage other providers or the patient in the chart
Offer personal (other than medical) opinions
Speculate on causes of poor outcomes
Make observations, notes or entries unrelated to patient care
Make derogatory statements or use language that blames another healthcare provider (e.g., “error,” “mistake in judgment”)
Engage in professional disputes in the chart
Include references to incident reports, legal actions, and attorney or risk management activities in the medical record (These should be maintained in a separate, confidential file.)
In the Event of a Claim or a Potential Claim
NEVER alter the medical record in any way. If you are involved in an adverse or unanticipated outcome, contact your insurance carrier’s Claims Department to report the medical incident. The claims specialist may ask you to prepare a legally privileged and confidential narrative summary to be used by Claims Department personnel and the defense attorney, as indicated. In the narrative, you can do the following:
Clarify chart entries
Elaborate on customs and practices
Recollect medical reasoning and reconstruct decision-making processes
Document discussions that were not included in the formal chart (e.g., those with the patient and family members, informal consultations with other healthcare practitioners and interactions with hospital personnel)
Engage in a preliminary retrospective analysis of your treatment and consider potential criticisms and appropriate explanations
Keep a copy of the narrative summary in a confidential litigation file—separate from the medical record—so that the information remains personal and private.
Additional PMSLIC Risk Management Resources
Additional resources are available to PMSLIC policyholders regarding communications, documentation, the litigation process, etc. Here are a few examples:
Disclosure of Unanticipated Outcomes
Medical Records: Corrections and Alterations
CME Course: Communication and Follow-Up
CME Course: Responses to Litigation Stress
Physician as Defendant: Understanding Your Role in the Litigation Process
Current PMSLIC policyholders can obtain courses or resources by contacting PMSLIC’s Risk Management Department at (800) 492-7898. If you are not a current PMSLIC policyholder and would like to learn more about how to join PMSLIC, please call your agent or 800-445-1212 and ask to speak with a PMSLIC sales representative.
Jane Mock, CPHRM, is a Risk Management Specialist with PMSLIC Insurance Company and the NORCAL Group.
The information contained in this document is intended as risk management advice. It does not constitute a legal opinion, nor is it a substitute for legal advice. Legal inquiries about topics covered in this document should be directed to an attorney.
Recommendations contained in this document are not intended to determine the standard of care, but are provided as risk management advice. Recommendations presented should not be considered inclusive of all appropriate risk management strategies or exclusive of other strategies reasonably directed to obtain the same results. The ultimate judgment regarding the propriety of any specific procedure must be made by the physician/healthcare provider in light of the individual circumstances presented by the patient.
PMSLIC is a leading Pennsylvania physician-directed medical professional liability insurer committed to protecting physicians and their practices with comprehensive coverage and industry-leading risk management services. With over 30 years of proven experience, PMSLIC has gained the insight and expertise to help physicians improve patient safety and reduce their liability risk. In the event that an adverse outcome does occur, PMSLIC supports its insureds every step of the way. Rated “A” (Excellent) by A.M. Best, PMSLIC is financially strong, has a flexible underwriting approach, and is committed to protecting the reputation of its policyholders. For more information, visit www.pmslic.com.
Copyright 2013 PMSLIC Insurance Company. All rights reserved. This material is intended for reproduction in the publications of PMSLIC-approved producers and sponsoring medical societies that have been granted prior written permission. No part of this publication may be otherwise reproduced, edited or modified without the prior written permission of PMSLIC. For permission requests, contact: Karen Davis, Project Manager, at (800) 492-7898.