Suraj Achar, MD and Wiggin Wu, in their article in the July/August 2012 issue of Family Practice Management, report that recognizing warning signs and careful documentation are two keys to reduce the risk of malpractice lawsuits. They report that approximately 5% of family physicians and 7% of all physicians are sued for malpractice in the USA each year. The occurrence of lawsuits is much greater in some surgical specialties (approaching 20% for neurosurgery and cardiothoracic surgery).
In a malpractice suit, the plaintiff must prove that the physician neglected the “owed duty of care” and that the physician’s action or inaction led to damage causing the plaintiff to suffer harm as a result of the breach of duty. Malpractice is proven by presenting convincing evidence showing its probable truth or accuracy. This is a lower standard than in criminal cases requiring proof of guilt beyond a reasonable doubt.
In the following diagnosis errors section, we summarized the recommendations that help reduce a physician’s malpractice risk.
The five most common malpractice lawsuits for primary care physicians involve errors in diagnosis for myocardial infarction, breast cancer, appendicitis, lung cancer and colon cancer. Lung, breast and colon cancer cases usually involve delayed diagnosis. Appendicitis cases are the result of not addressing the possibility of appendicitis if initial symptoms worsen plus lacking a documented follow-up plan. Misdiagnosing heart conditions comprise 50% of diagnosis error cases. These lawsuits are filed by patients that are most likely to be misdiagnosed because they are younger, have atypical histories or don’t exhibit many of the risk factors.
Dr. Anchar and Mr. Wu state that careful chart documentation can help get a case dismissed. If there is failure to report a differential diagnosis and there is absence of contrary evidence, you can expect jurors to assume the worst.
Also, physicians need to be sure their notes reflect shared decision-making with patients. Documentation should explain alternatives to patients including the associated risks and benefits, the agreement on a treatment plan, and the follow-up plans if symptoms continue or worsen.
Goals, expectations, and progressive effects of treatments should also be part of the physician’s documentation. Any warnings given or risks discussed should be included in the chart notes on file. Use the patient’s opinion of the treatment to determine his understanding of the plan and document when the “patient understands and agrees”. Be sure the documentation reports an “after visit summary” was provided that included the diagnosis, orders given (including phone numbers for consultations and/or testing) and patient instructions. Good documentation is critical for a good defense.