Lesson from the Wise: How to Avoid a Malpractice Suit!

Samuel Kiehl, MD
Samuel Kiehl, MD

A list of suggestions and recommendations to avoid malpractice lawsuits I have learned from my experience as a medical malpractice expert reviewer. By Samuel J. Kiehl, M.D., FACEP. Edits by Michael Barrie OSU EM Assistant Professor

  1. Provide excellent care—first and foremost
    • Stay current with latest topics in emergency medicine
    • Maintain skill level
    • Do not ignore vital signs and “gut feeling”
    • Know what one does not know and let patient know
    • If not comfortable about something, acquire more data, ask for help, or refer to specialist
    • know high risk areas
    • identify high-risk patients (eg, lawyer, angry patient) and those with high risk for poor outcome include immunocompromised patient (eg, HIV-positive, diabetic, alcoholic, substance abuser)
  2. Keep focus on patient
    • always do right thing, even when difficult
    • Treat people well; data show that “happy” patients do not file lawsuits
    • not being listened to or taken seriously is the #1 complaint of patients
    • respect privacy of patient
  3. Patient Satisfaction is important
    • Sit down while talking to patient; It gives the impression of longer time spent with patient and that you have their undivided attention
    • first impressions matter, so dress professionally
    • attitude—introduce self; know name of patient
    • apologize for patient’s wait, even if only short time
    • pay attention to own body language and patient’s body language
    • involve and listen to patient’s family in decision-making
    • have willingness to put on “show” to let patients know that thorough job performed and care provided
    • compliment patient and care provider
    • know patient’s expectations and meet or exceed them; manage expectations
    • know reason for patient presenting to emergency department (ask them)— some of the most common reasons include pain, note required for school or work, and pressure from family
    • always address reason for presentation directly
    • avoid minimizing patient’s concerns, but instead validate them
    • let patient know that everything is being done to meet his or her needs
    • keep patient informed
    • use real words (avoid medical jargon)
  4. Take care of yourself
    • Get adequate sleep and exercise
    • be particularly cautious at beginning and end of shift
    • be prepared and show up in timely manner
    • end shift at appropriate time
    • identify, recognize, and guard against own biases
    • take time to eat, relax, and collect thoughts in middle of shift
  5. Develop people skills
    • recognize leadership role
    • be willing to apologize
    • avoid criticism of someone else’s treatment (loose lips sink ships)
    • seek first to understand, then to be understood
  6. Document well
    • contents of chart is as important as how the patient is treated. Ideally, should not be as important, but is in medicolegal sense
    • chart should reflect all events that occurred and tell story. It should speak for the physician
    • goal for record to speak for itself, without requiring subsequent explanation
    • most potential lawsuits aborted when plaintiff’s attorney reviews chart that makes clear what happened
    • review of past records necessary
    • Remember, nursing notes part of medical record; also true for paramedic notes (if paramedic notes not available, indicate in chart); beware of notes written after ED physician has completed own notes (some physicians draw line in chart with date and time after last nursing note they see before leaving)
    • necessary that process of medical decision-making present in chart, with explanation of reasoning
    • charting should be realistic and not include actions not performed
    • credibility crucial
    • particular care necessary for template charts
    • review history and physical examination of patient and read nurses’ notes
    • look at vital signs and address if abnormal
  7. Close the deal with every patient encounter
    • perform reassessment of case just prior to disposition, including testing results; check whether nurses’ notes and/or resident’s notes are appropriate
    • 3 questions to ask one’s self
      • Does everything makes sense (after obtaining all data)?
      • What are all the worst case scenarios?
      • Was everything possible done? i.e what a prudent person would have done in same situation.
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