Five Tips for Reducing Legal Risk: Improve Communication and Documentation

By Echo Miranda | April 10, 2018

In 2016, there were a total of 11,095 medical malpractice payments issued, 40% of which were valued at over $250,000 each[1]. According to a study conducted by the Health Affairs organization, roughly 60% of those lawsuits were dropped by the plaintiff[2]. However, the damage of a lawsuit extends far beyond the number of dollars paid. The very fact that a claim was filed implies incompetence. Malpractice payment implies that these claims were valid. All of these can impact patient census and your reputation not to mention a major hit to your morale. We can safely assume that medical practitioners practice with the patient’s best interests at heart. Interestingly, a whopping 70% of physicians who were sued did not see it coming[3] according to a study by Medscape.

The number one reason why malpractice claims are filed are due to misdiagnosis or mishandling of a diagnosis,[4] followed by communication issues and failure to follow up on diagnostic tests ordered. But not all malpractice results in a lawsuit. Why? Studies suggest that the patient’s perception of how they were treated largely affect their decisions to file or not to file[5]. Here are some tips to improve your operations and reduce your overall risk:

1. Assume a lawsuit could happen

I remember when I was getting my motorcycle license the instructor told me to drive as if everyone was out to hit me. He meant, drive defensively! In a sense you do want to conduct yourself as if a lawsuit could happen at any moment because… it could. So, ensure that your documentation will support you ten years from now. As I get older I realize that trusting my memory is a terrible idea. Your note should communicate thought processes and factors considered in decision making. Take care to ensure that your note would be clear to another provider who may assume care of your patient.

2. Communicate!

Good communication can be challenging. I once read that 93% of communication is non-verbal and knowing that the majority of people communicate electronically only adds to the challenge of effective communication. Merely sending a note through the patient’s portal may not be enough to cultivate a positive relationship between you and your patient. In what improved ways can you communicate with your patient? While you are in the exam room give the patient a few minutes of your direct time and attention. Even the best multi-taskers can seem distant and distracted while listening to the patient and typing into the chart. Make eye contact. Be genuine. Consider keeping little notes about your patient’s personal life and refer to them from time to time. “How is Rover doing? He must be getting big!” – a simple note in the patient’s chart that she recently got a puppy can go a long way towards establishing trust and rapport with your patient.

3. If it isn’t documented, it didn’t happen.

You have probably heard this a dozen times or more. And it is true! But, define “documented”. “Documented” as in ‘present in a document’ or “documented” as in ‘entered into the chart’. I would bet that this quotation dates back prior to electronic medical records. Too often, I see information placed in the template of a chart but not in the visit note. How does this happen?

Most often this is because the information was entered into the EHR after the encounter note was generated. Let’s think about that for a second. Picture the typical clinical workflow: The patient is triaged and roomed. Provider sees the patient and places orders. Provider submits billing codes and generates the encounter note. MA completes the order in the EHR. And the cycle repeats. Did the MA re-generate the visit note to include the updated information? Unfortunately, this step is often missed. So, be sure your documentation – something you can print on a sheet of paper – is complete and accurate before ending your visit.

4. Monitor and follow up on diagnostic tests.

Monitoring and follow up on diagnostic tests can be challenging. Roughly 35% of encounters result in lab orders[6] and 22% in radiology orders. In a 2005 study, of the 1,231 physicians surveyed, an astounding 91% reported believing that physicians order more diagnostic tests and procedures to protect themselves from malpractice suits[7]. If you average 25 patients per day and 35% of those resulted in just lab orders, then you and your staff would need to follow up and close the loop on nearly 9 patients a day. And that is just for labs! Factor in radiology studies and referrals and you are practically looking at a full-time job just to manage all of them.

And manage them you must. While we can say that the onus is on the patient to manage their own care, the fact is many malpractice suits are filed because the patient did not receive necessary treatment for those findings (or lack thereof). Sometimes tests are completed but the result is not received by the ordering provider. Sometimes the patient fails to complete the ordered tests. And sometimes the result is viewed and then tucked away without action. So do you order fewer tests? Or do you spend more time following up on every single test ordered? The answer might be both but at the very least make sure that you receive results for tests you order and follow up when they are missing. And be sure to document!

5. Get it in writing.

This may seem like a no-brainer but surprisingly many claims cannot be defended because the patient did not sign a consent form. Too often I see “the patient was informed of the risks and benefits of [insert purpose of consent] and states she understands and agrees to have the procedure done”. This might be interpreted as hearsay and may not stand up in court.

Informed consent should contain[8]:

  • Name and signature of the patient, or if appropriate, legal representative
  • Name of the hospital
  • Name of procedure(s)
  • Name of all practitioners performing the procedure and individual significant tasks if more than one practitioner
  • Risks
  • Benefits
  • Alternative procedures and treatments and their risks
  • Date and time consent is obtained
  • Statement that procedure was explained to patient or guardian
  • Signature of person witnessing the consent
  • Name and signature of person who explained the procedure to the patient or guardian

Note: Always seek the advice of your attorney.

Most EHRs have informed consent built in so that the bulk of this information is easily entered into the document, but the patient must still sign the form. If this is by means of an eSignature pad, great! If not, then print the form and have the patient sign it. Then scan it back into their record. Be sure to refer to the scanned form in your procedure notes. Be sure your organization’s policies are reviewed, understood and followed for gaining consent.

These five tips can not only help in preventing medical lawsuits or in defending yourself against one, but also in ensuring accurate and complete clinical documentation in your EHR. If you feel like your EHR needs improvements to help with workflow, documentation, or other processes to increase your records keeping, please reach out to us.

[1] https://www.npdb.hrsa.gov/resources/npdbstats/npdbStatistics.jsp
[2] https://www.healthaffairs.org/doi/10.1377/hlthaff.2010.1132
[3] https://www.medscape.com/features/slideshow/public/malpractice-report-2015#page=15
[4] https://www.medscape.com/features/slideshow/public/malpractice-report-2015#page=4
[5] https://positivephysicians.com/2015/06/10/patients-who-wont-sue-their-doctors-even-when-they-could/
[6] https://www.ncbi.nlm.nih.gov/pubmed/24610189
[7] https://jamanetwork.com/journals/jamainternalmedicine/fullarticle/416067?resultClick=1
[8] Federal Code (Title 42 C.F.R. § 482.51 (b) (2)) Interpretive Guideline A-0392

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