Many physician associations and medical malpractice insurance companies alike have been calling for tort reform in the face of rising premiums and other costs. And though the majority of malpractice lawsuits are found in favor of doctors, defending a non-meritorious claim still costs a physician time and money. But experts say there are many ways physicians can shore-up their defense, and even prevent non-meritorious claims from going to court.
From a sampling of the 75 largest counties in the United States, 1,156 medical malpractice lawsuits went to trial in 2001, according to the U.S. Bureau of Justice Statistics Civil Justice Survey of State Courts, Tort Trials and Verdicts in Large Counties in 2001 (November 2004, NCS 206240). Five hundred thirty-three of the lawsuits involved surgeons, with just under 75 percent found in favor of the defendant. But the median time for a malpractice trial was 30 months.
Plastic surgeons, though one of the least-hit of the physician markets that perform high-risk surgeries, can still ensure they're covered in cases with insufficient evidence of malpractice, says attorney John A. Talvacchia, of Stahl and DeLaurentis, P.C. of Voorhees, New Jersey. He has 10 years of experience defending medical malpractice cases. Mr. Talvacchia's clientele includes plastic surgeons, and he says, in his experience, many non-meritorious lawsuits against plastic surgeons are rooted in the patient's unrealistic expectations.Documentation "The physician has to make sure there is other documentation and evidence that the risks are discussed, and that it's made clear to the patient that there are varying levels of improvement from a particular procedure," Mr. Talvacchia says.
The crucial phase before a case turns into a lawsuit is during the records request. What's in the records could prevent a case from going forward, he adds. So the bedrock for a solid defense is documentation, documentation, documentation. But how much is enough, and how can a busy physician figure additional documentation into an already-overworked schedule?
On the minimalist scale, sometimes a simple shorthand entered into the patient's records, such as d/c RBA, noting a discussion was had about the risks and benefits of, and alternatives to, the procedure could be enough. But physicians can stand to be even more proactive, says Eric Poe, C.P.A., J.D., vice president of marketing and development for NJ PURE, a New Jersey-based medical malpractice insurer.
"From an insurance carrier's standpoint, the best defense for a cosmetic surgeon, once the suit is actually brought up, is a very comprehensive, informed consent procedure. Not just an informed consent form, but the actual procedure of that informed consent," Mr. Poe says.
Mr. Poe says he has seen some physicians who will schedule an office visit exclusively for an informed consent, and have it noted in the appointment book as such. Sending patients home with the informed consent materials for several days gives them time to read it at their leisure, and even consult the advice of an attorney. Once the patient has absorbed the information and signed the form, the doctor can move forward with the procedure.
But the especially prudent doctor, he says, will go so far as to videotape the informed consent appointment.
Good relationships If documentation via patient consent forms and the videotaping of appointments is the bedrock for a solid defense, then a dose of good old-fashioned bedside manner is the foundation of a solid doctor-patient relationship, which could prevent a lawsuit from even happening, says Mr. Talvacchia.
"People can have bad outcomes, but if they have a good relationship with their doctor, they're less likely to go to an attorney. Where you see the impetus for these cases are with doctors who aren't good at communicating."
To that end, Mr. Talvacchia advises that doctors simply try to maintain open lines of communication, including answering the patient's questions and returning phone calls. A little extra time spent along the way could save untold time, energy and money down the road.
Disclosure: Mr. Talvacchia has been a panel member for an NJ PURE seminar instructing doctors how to better protect themselves in frivolous malpractice lawsuits.