By James W. Saxton, Esq
There is no doubt that there is a liability crisis here in Pennsylvania. Debate by others is just that. Doctors are leaving, retiring early, abandoning obstetrics and other high risk procedures within their specialty, and hospitals are finding the need to close departments. Our communities sadly have suffered and will suffer.
The problem is complex and there are multiple issues to be addressed. More legislation is warranted and will make a difference. New insurance vehicles such as captive insurance companies or risk retention groups created in a stable and responsible fashion could help ease the problems and may enhance competition among insurers. However, in addition, we need to get a better handle on what is causing both the frequency and severity of claims.
One issue, which has been examined on and off for many years, is to what extent patients contribute to their own health problems but then blame their doctors. Intuitively we know this occurs. Patients often do not follow through on recommendations. They do not stop smoking, drinking, or start exercising. They do not show up for their yearly examinations, follow-up visits, or tests. They do not adequately participate in rehab. Despite the non-compliance, when something goes wrong, an undesirable or unfortunate outcome or complication, it is the physician’s fault!
In reality, patients are more responsible for their own outcomes than we realize. We simply have done a poor job at holding them accountable for often what is clearly their responsibility. Often lawyers are reluctant to make the claim of comparative negligence (in other words, that the patient is in part responsible for his own complication or poor outcome) either because of the dynamics in the courtroom or the lack of documentation concerning the same. In other words, when you have a mother in a pediatric case who has lost a five-year-old child, it is difficult to simply blame the mother because she failed to call to alarm the doctor of certain symptoms unless you have very strong ammunition, both factually and from a documentation standpoint, to carry through. Otherwise, it could (and does) have an inflammatory effect on the jury. Further, patients or loved ones of patients are heard to say:
“Why didn’t the doctor tell me the importance of the follow-up test?”
“Why didn’t the doctor tell me the implications of not completing my rehab?”
“The doctor never told me that. If he had, certainly I would’ve listened. Don’t you think I want to get better?”
“The doctor is always in such a hurry. Perhaps that is what he said he usually tells patients, but he certainly did not tell me. I remember he was in a hurry that day.”
Questions by a plaintiff’s lawyer at your deposition or at trial may include: “Doctor, if that’s such an important recommendation, show me where it is in your record?” In other words, there are strategic and tactical reasons why it is hard at times to shift the ball of responsibility to the patient, even if that is where it should be.
It is time, however, for us to do so in a far more serious way. Studies over the years document patients’ dissatisfaction over a perceived lack of involvement in their own care. Studies have shown that patients want to be involved in their care and want to feel more of a “partner” in their care. I say let them have it. It is time to truly put the ball of responsibility firmly in a patient’s court and importantly create documentation vehicles to do so. Further, we need to do so in a positive, not an adversarial, fashion or we will simply go in reverse in our effort to improve our overall liability picture.
The following explains the concept and provides a few examples. Patient compliance has always been related to outcomes. The doctor can only do so much in his or her office. The doctor then must provide a care map to the patient to follow through. Often we literally write out that care map, for example, as discharge instructions in the emergency department. These turn out to be critical instructions and often lawsuits will rise or fall on just how well these instructions are written. If they are done in an incomplete or illegible fashion, it will come back to haunt the doctor or the hospital. The instructions need to be clearer and the additional time needed to do so would not be significant. We give post-operative instructions after surgical procedures and many are now in preprinted forms, which is good, and which also provides a blank area to insert customized comments. It is now time for us to think about how we can involve patients, and where appropriate their families, even more in their care and document their responsibility, which would include setting forth the implications of not following the instructions. My point is that, although at times we are documenting, we need to take it to another level. As you will see below, there are several distinct positive implications.
One example is the standard history form. Many malpractice cases are initiated because a doctor thought he or she had the right medical history only to find out otherwise. For example, information that a close family member did have breast cancer or colon cancer would have changed the testing regime, but it was never provided by the patient. The patient who has sued on a late diagnosis theory will claim, “Yes, I provided that information, but the doctor failed to take note of it!” Often it turns into a swearing contest, meaning the patient says it happened, and the doctor says it did not. These so called swearing contests are often lost by the doctor because the patient was only seeing one doctor during that particular time period and of course the doctor had hundreds of patients. It simply should not be an issue.
The scenario can be easily prevented. Our history form should start with an introductory statement such as the following, “The following information is very important to your health. Please take the time to fully and accurately fill out this form.” The patient should sign and verify the form which should include, at the end of the form, the following language under the signature line: “The above information is true and correct to the best of my belief.” By these two simple revisions to the form, you have both told the patient that this information is important and that it is his or her responsibility to obtain it. Significantly, the patient has also verified that the information on the form is correct. The patient is hard-pressed to take the position in litigation that either he did not know the information was important or that what he provided on the form was not accurate.
This has two important positive implications. First of all, when patients review this type of form, they actually may take the form seriously. The physicians that have incorporated this form into their practice have been surprised to learn that some patients refuse to sign the form…until they went and got the right information! Therefore, it may help us to get better information while starting the process of patients accepting responsibility for the same. Second, we have a document that shows it was not our responsibility to beat the information out of the patients and thus a form such as this can be used to control or completely avoid a lawsuit.
This type of language can also be inserted into discharge instructions, informed consent forms, and it could be incorporated into your practice brochure, your website, and into your practice culture. The idea is to let patients know in a constructive way how important their involvement is and the fact that we are counting on them to meet their responsibilities similar to the doctor meeting his or hers.
Another example is as follows. In every practice there are at least several patients a year that put themselves, and therefore their doctors, at risk by failing to comply with some form or their doctors’ instructions. There is almost an epidemic of non-compliance in this country. When this occurs, an “at risk” file should be created. This is for those four or five patients a year that are truly putting themselves at risk through non-compliance. The business manager should monitor these patients, and if it gets to the point where several verbal warnings have been given, several appointments missed, and/or instructions disregarded, then an at-risk letter should be sent. This means a letter sent by certified mail to the patient whereby the physician explains that non-compliance has occurred. Importantly, you do so letting the patient know of both the non-compliance and the implications of his non-compliance. For example, it will lead to a relapse, infection, frozen shoulder, or whatever fits clinically. Patients have been heard in court to say they did not follow through on instructions because they did not know the consequences of the same and patients (also known as jurors) have been known to accept that explanation. Therefore, we need to spell out the consequences and then end the letter with what in fact they need to do to get back on track and that it will be their responsibility to accomplish the same.
This will accomplish the dual goals of both enhancing outcomes, while protecting doctors from these unnecessary claims. A certain subset of our patients will actually follow through because of such a letter—either because they see the importance of doing so or the letter will be shared with a loved one who will demand that they comply. However, if the patient decides to consult with a lawyer, we will also have a document that will be in the doctor’s chart and when the lawyer’s business decision is made, will weigh heavily in your favor.
The malpractice problem is complex. No matter what is being done in a quest to achieve tort reform, or what type of insurance vehicle a doctor is investigating, this type of proactive risk management should be mandatory. We all need to take it to the next level. As we do so, we want to always look at reaching the dual goals of improving outcomes (and the experience for the patients) and reducing liability exposure. Practices across the nation are using new documentation vehicles in a positive way to put the ball of patient responsibility in the patient’s court and documenting it. The time to start is now.
James W. Saxton, Esq., is Chairman of Stevens & Lee Healthcare Litigation Group in Lancaster, Pa.