National report — Avoiding common malpractice risks requires partnering with patients, both in person and electronically, says Michael Sacopulos, J.D., an attorney based in Terre Haute, Ind.
“Too often, informed consent is viewed as getting a signature on a piece of paper. A better way to view it is as a process by which the patient is educated about the risks of a procedure and what to expect,” Mr. Sacopulos says.
These conversations should occur between physician and patient and should include discussion about alternatives to the procedure and consequences of rejecting treatment or ignoring patient instructions.
“Don't try to outsource these types of issues,” he says.
Informed consent proves particularly challenging when a patient’s wishes clash with a doctor's advice, according to Jeffrey Segal, M.D., J.D., a Greensboro, N.C., neurosurgeon and founder of Medical Justice, which provides services for protecting physicians’ reputations and deterring frivolous malpractice suits.
Jeffrey Segal, M.D., J.D.
In one case, he says, a pregnant woman diagnosed with breast cancer chose to delay standard treatment until after the baby’s birth — against the advice of eight physicians.
“This woman understood the risks, benefits and options on a deep level,” Dr. Segal says. “Her biggest challenge was finding a doctor who would partner with her. She said the last thing on her mind was suing a doctor, but in the harsh medico-legal climate, many doctors did not believe her. That’s precisely where a robust informed consent process can help both the doctor and the patient.”
Fortunately, Dr. Segal says, the patient found a doctor willing to deliver her entire wish list, and she remains cancer-free years later.
It took several conversations over many months for a performance artist known as the Lizard Man to persuade an oral surgeon to split his tongue — with a laser — in the fashion of a snake, Dr. Segal says, adding that “he formed a strategic partnership with the doctor, for lack of a better term.”
The primary risk was a possible inability to speak properly after the surgery. Dr. Segal says Lizard Man clinched the deal by telling the surgeon, “If I go through the rest of my life mute, I accept that.”
Ultimately, the surgeon performed the procedure, convinced that this patient was of sound mind and understood what he was undertaking and why. Today, Lizard Man performs regularly. Even with a forked tongue, Dr. Segal says, the man articulates without difficulty.
Risks and complications are “the heart of informed consent,” Mr. Sacopulos says. And making sure that patients understand these requires much more than simply asking, “Do you understand?”
Rather, he says, it’s critical to have patients repeat the information back to you in their own words to prove that they grasp it.
“Additionally,” he advises, “All of this should be very well documented.”
“I cannot tell you the number of times that Medical Justice is called about a lab report or X-ray that fell through the cracks,” Dr. Segal says. “Here’s the reason: For patients, the default assumption is that no news is good news.”
To reverse this assumption, he recommends telling patients that if they don't hear from your office within two weeks of the test, you’ll refund the cost of their office visit. This way, he says, “You've reset (patients’) expectations, and they’re the ones who have the highest stake” in ensuring proper follow-up. In other words, “Bring the patient into the loop — don’t let him or her be just a passive recipient of information.”
Missed appointments also carry risks, Dr. Segal says.
“It may just be a routine postoperative visit, but you should have some way to communicate with the patient — you don’t know what happened unless the patient conveys this information,” he says.
It’s impossible to force patients to show up, however, “You should still encourage them to come in. But I also argue that if they don’t come in, you should document what reason the patient gave and when, in spite of your requests,” Dr. Segal says.
Multiple no-shows generally indicate a noncompliant patient, Dr. Segal says. If you tolerate this behavior long-term, “You may struggle with a surprise lawsuit. I would argue that if someone won’t follow up in a way you believe they should, you should send them a letter outlining your expectations in the doctor-patient partnership. The doctor will do everything possible to shepherd the patient from illness to recovery, but ultimately, if the patient does not want to participate, perhaps it's time to find another doctor.”
“Medication errors account for more than 25 percent of errors that cause harm to patients,” says Kathleen Stillwell, R.N., M.P.A., H.S.A., regional patient safety risk manager for The Doctors Company.
To reduce this risk, she says, “Do an in-depth medication reconciliation at every visit. Ask, ‘Has anything changed in your medication since your last visit?’” This is important, she says, even if the prior visit occurred just last week.
“People go to other doctors. Especially when they’re seeing plastic surgeons and cosmetic dermatology (providers), it’s very probable that these patients already have a primary care physician,” and perhaps an allergist, an OB/GYN or ophthalmologist and other specialists who may be prescribing them medications, she says.
“Medication reconciliation should always include asking the patient about over-the-counter medications, supplements, street drugs, homeopathic medications and herbal teas,” Ms. Stillwell says.
Ms. Stillwell also recommends asking about allergies at each visit. “If you look at the reason for medication-related claims, many have to do with a failure to identify allergies in patients,” she says.
For plastic surgeons, Ms. Stillwell says medication errors can involve prescriptions ordered, in-office injections, vaccinations given, drug interactions and failure to monitor elements such as liver or kidney function while patients are on medications.
Notwithstanding the efficiencies that electronic medical records (EMRs) deliver, they also represent an often-used point for unauthorized access to patient information, Mr. Sacopulos says.
“Make sure you have your systems set up and your people instructed so that unless they have a reason to look at medical records, they do not go through them,” he says. “Just because you work in an office doesn’t mean you have access to all the files.”
To avoid problems, he says, password protection provides a record of who’s been accessing files. Additionally, he says that tools such as firewalls and encryption can help prevent problems ranging from Health Information Portability and Accountability Act violations to identity theft.
“Many printers and copiers now have hard drives,” he says, which should be wiped clean of data before they are disposed of or returned to a leasing company.
By the same token, template-driven EMR systems require caution, Mr. Sacopulos says.
“If you have set templates, either people feel that they have to fill them out or the templates fill themselves out.” This can result in the creation of EMRs indicating that a male patient tested negative for pregnancy, for example, “Which looks absolutely ridiculous when an attorney is going through it at a deposition,” he says.