Andrew J. Bond, Esquire (Associate)

 

In the previous issue of The New Gastroenterologist, we discussed statistics and the basis on which most gastroenterologists are sued as well as what you can do to minimize this risk. In this second article, we discuss steps to assist in your defense in the event you have been sued. The following suggestions are based on our experience as defense attorneys who practice in the arena of medical malpractice.

If you have been sued, it is imperative that you notify your insurer immediately, as this may be required under your policy for coverage. It is also best practice to notify the carrier and/or the hospital (if it occurred at the hospital) of any incident or serious event, bad outcome, or letters from lawyers representing the patients. This allows for early investigation and, in some cases, intervention.

Do not, under any circumstances, add or alter the plaintiff’s medical records. Although you have continued access to electronic medical records, accessing or altering these documents leaves an electronic trail. Attorneys are now frequently requesting an “audit trail” during discovery, which shows who and when someone accessed or altered relevant medical records. Additionally, it is likely that the plaintiff’s counsel has already obtained and reviewed records for their client. As such, counsel will notice any alterations and will require an explanation as to the same. If you did alter any medical records, it is important that you notify your attorney about the specifics of such.

You should not discuss anything about the case with anyone other than your spouse and attorney. This will prevent plaintiff’s counsel from deposing additional witnesses and limit the amount of people potentially forced to testify.

After you have secured an attorney, it is critical that you arrange a meeting to develop a positive relationship early in the litigation process. This is important for many reasons. A medical malpractice case can be a long and arduous process which requires that you be involved with your attorney during the course of the litigation. For the attorney-client relationship to be successful, it is imperative that you know and feel comfortable with your attorney and develop confidence and trust in her. Without this trust, it will be difficult for you to accept various decisions or suggestions that the attorney believes are in your best interest. Conversely, the attorney should get to know you and understand your background, as this will assist in your representation.

A good relationship with you will also aid your attorney in educating herself on medical concepts relating to your case. Remember, your attorney most likely has not attended medical school and many of the medical concepts will initially be new to her. By the time trial arrives, however, your attorney will be very familiar with the medical issues in your case. This learning process can be expedited with your assistance and research.

Finally, be sure to respond fully and honestly to questions from your attorney, regardless of whether you view it as harmful, irrelevant, or unimportant. Anything you tell your attorney is confidential and protected by privilege. Your attorney is your ally. It is her job to help you. Thus, it is essential that you respond fully and honestly to all questions posed by your attorney and disclose all possibly relevant information.
 

Your deposition

At some point during the lawsuit, the plaintiff’s attorney will take your deposition. The plaintiff’s attorney will strive to obtain concessions that establish the standard of care, breach of the standard, causation, and damages. Your deposition is not the time for you to provide explanations. It is the time for you to concisely answer specific questions posed by counsel without volunteering any additional information. Ultimately, trials build on what occurs during depositions. Preparation is key. Be open to advice or criticisms from your lawyer. Try to eliminate any quirks or habits that interfere with the substance of your testimony or perceived credibility. A deposition is not a casual conversation, nor is it a test of your memory. Limit your answers to personal knowledge; never guess or speculate. If you do not know the answer to a question, or do not remember something, it is perfectly acceptable for you to say so. Only answer questions that you understand. You are allowed to ask the plaintiff’s counsel to repeat or rephrase questions.

Once you have answered a question, stick to your answer if it is accurate. It is fine to change an answer, but do not change it simply because the plaintiff’s counsel is pushing you to do so. Aggressive interrogation by opposing counsel may occur. Never argue or quibble with the plaintiff’s lawyer; leave all arguing to your lawyer. A witness who is calm, courteous, and confident is more likely to appear credible. The plaintiff’s attorney may request that your deposition be videotaped. If this is the case, be mindful of your mannerisms, tone of voice, and appearance. The videotape may end up being played in front of a jury.

Finally, and most importantly, always tell the truth. Discuss any anticipated issues or concerns with your lawyer before your deposition.
 

 

Preparing for trial

A trial can last anywhere from 1 to 3 weeks. Your daily presence (including at the jury selection before the trial begins) is mandatory and in your own best interest. Your lawyer will have little control over the date on which the trial will occur. That date will be set by a judge, who will not be sympathetic to your scheduling problems. Be prepared to cancel patients’ appointments and any procedures already scheduled. The jury’s perception of you can be influenced by your presence and demonstrated dedication to your defense.

Conclusion

In summary, remember that there are things you can do both before and after you are sued to minimize litigation and its impact. As mentioned previously, before a lawsuit, and as a regular part of your practice, it is important that you stay current with medical advances, that you take the time to create a relationship with your patients involving quality communication, and that you thoroughly and legibly document all aspects of care provided. After a suit is filed against you, make sure you notify your insurer immediately, do not alter any records or discuss the case with anyone other than your lawyer or spouse, and do all you can to create a productive and honest relationship with your lawyer. This relationship will be invaluable as you do the difficult and time-consuming work of preparing for your deposition and trial, and it can help you endure and successfully navigate the litigation process.

The Importance of Follow-Up: Further Advice on How to Decrease the Risk of Being Sued

A common basis for establishing a malpractice liability claim against a physician is the failure to follow-up or track a patient’s test results. In today’s world, there is an increasing number of moving parts involved in any given patient’s care. A particular patient may treat with numerous physicians, all of whom use different record systems. Electronic medical record systems have made records more accessible and easier to track, but they also present a new set of challenges.

Every physician needs to determine how they plan to track test results. The ideal system would allow a physician to quickly get back any lab or diagnostic test that he or she orders. All staff members should know how the physician’s system works. Otherwise, test results might accidentally be filed before the physician reviews them or a miscommunication could prevent test results from being delivered. Whatever choice of system, it is key to follow and effectively use the program every time.

Additionally, it can be beneficial to let the patient know when he or she can expect to hear about their results, as failure to keep the patient reasonably informed can create a new set of patient concerns and anxiety. Ultimately, establishing a well-defined system for record-tracking can help physicians avoid malpractice liability claims because of a failure to follow-up.

 

In the previous issue of The New Gastroenterologist, we discussed statistics and the basis on which most gastroenterologists are sued as well as what you can do to minimize this risk. In this second article, we discuss steps to assist in your defense in the event you have been sued. The following suggestions are based on our experience as defense attorneys who practice in the arena of medical malpractice.

If you have been sued, it is imperative that you notify your insurer immediately, as this may be required under your policy for coverage. It is also best practice to notify the carrier and/or the hospital (if it occurred at the hospital) of any incident or serious event, bad outcome, or letters from lawyers representing the patients. This allows for early investigation and, in some cases, intervention.

Do not, under any circumstances, add or alter the plaintiff’s medical records. Although you have continued access to electronic medical records, accessing or altering these documents leaves an electronic trail. Attorneys are now frequently requesting an “audit trail” during discovery, which shows who and when someone accessed or altered relevant medical records. Additionally, it is likely that the plaintiff’s counsel has already obtained and reviewed records for their client. As such, counsel will notice any alterations and will require an explanation as to the same. If you did alter any medical records, it is important that you notify your attorney about the specifics of such.

You should not discuss anything about the case with anyone other than your spouse and attorney. This will prevent plaintiff’s counsel from deposing additional witnesses and limit the amount of people potentially forced to testify.

After you have secured an attorney, it is critical that you arrange a meeting to develop a positive relationship early in the litigation process. This is important for many reasons. A medical malpractice case can be a long and arduous process which requires that you be involved with your attorney during the course of the litigation. For the attorney-client relationship to be successful, it is imperative that you know and feel comfortable with your attorney and develop confidence and trust in her. Without this trust, it will be difficult for you to accept various decisions or suggestions that the attorney believes are in your best interest. Conversely, the attorney should get to know you and understand your background, as this will assist in your representation.

A good relationship with you will also aid your attorney in educating herself on medical concepts relating to your case. Remember, your attorney most likely has not attended medical school and many of the medical concepts will initially be new to her. By the time trial arrives, however, your attorney will be very familiar with the medical issues in your case. This learning process can be expedited with your assistance and research.

Finally, be sure to respond fully and honestly to questions from your attorney, regardless of whether you view it as harmful, irrelevant, or unimportant. Anything you tell your attorney is confidential and protected by privilege. Your attorney is your ally. It is her job to help you. Thus, it is essential that you respond fully and honestly to all questions posed by your attorney and disclose all possibly relevant information.
 

Your deposition

At some point during the lawsuit, the plaintiff’s attorney will take your deposition. The plaintiff’s attorney will strive to obtain concessions that establish the standard of care, breach of the standard, causation, and damages. Your deposition is not the time for you to provide explanations. It is the time for you to concisely answer specific questions posed by counsel without volunteering any additional information. Ultimately, trials build on what occurs during depositions. Preparation is key. Be open to advice or criticisms from your lawyer. Try to eliminate any quirks or habits that interfere with the substance of your testimony or perceived credibility. A deposition is not a casual conversation, nor is it a test of your memory. Limit your answers to personal knowledge; never guess or speculate. If you do not know the answer to a question, or do not remember something, it is perfectly acceptable for you to say so. Only answer questions that you understand. You are allowed to ask the plaintiff’s counsel to repeat or rephrase questions.

Once you have answered a question, stick to your answer if it is accurate. It is fine to change an answer, but do not change it simply because the plaintiff’s counsel is pushing you to do so. Aggressive interrogation by opposing counsel may occur. Never argue or quibble with the plaintiff’s lawyer; leave all arguing to your lawyer. A witness who is calm, courteous, and confident is more likely to appear credible. The plaintiff’s attorney may request that your deposition be videotaped. If this is the case, be mindful of your mannerisms, tone of voice, and appearance. The videotape may end up being played in front of a jury.

Finally, and most importantly, always tell the truth. Discuss any anticipated issues or concerns with your lawyer before your deposition.
 

 

Preparing for trial

A trial can last anywhere from 1 to 3 weeks. Your daily presence (including at the jury selection before the trial begins) is mandatory and in your own best interest. Your lawyer will have little control over the date on which the trial will occur. That date will be set by a judge, who will not be sympathetic to your scheduling problems. Be prepared to cancel patients’ appointments and any procedures already scheduled. The jury’s perception of you can be influenced by your presence and demonstrated dedication to your defense.

Conclusion

In summary, remember that there are things you can do both before and after you are sued to minimize litigation and its impact. As mentioned previously, before a lawsuit, and as a regular part of your practice, it is important that you stay current with medical advances, that you take the time to create a relationship with your patients involving quality communication, and that you thoroughly and legibly document all aspects of care provided. After a suit is filed against you, make sure you notify your insurer immediately, do not alter any records or discuss the case with anyone other than your lawyer or spouse, and do all you can to create a productive and honest relationship with your lawyer. This relationship will be invaluable as you do the difficult and time-consuming work of preparing for your deposition and trial, and it can help you endure and successfully navigate the litigation process.

The Importance of Follow-Up: Further Advice on How to Decrease the Risk of Being Sued

A common basis for establishing a malpractice liability claim against a physician is the failure to follow-up or track a patient’s test results. In today’s world, there is an increasing number of moving parts involved in any given patient’s care. A particular patient may treat with numerous physicians, all of whom use different record systems. Electronic medical record systems have made records more accessible and easier to track, but they also present a new set of challenges.

Every physician needs to determine how they plan to track test results. The ideal system would allow a physician to quickly get back any lab or diagnostic test that he or she orders. All staff members should know how the physician’s system works. Otherwise, test results might accidentally be filed before the physician reviews them or a miscommunication could prevent test results from being delivered. Whatever choice of system, it is key to follow and effectively use the program every time.

Additionally, it can be beneficial to let the patient know when he or she can expect to hear about their results, as failure to keep the patient reasonably informed can create a new set of patient concerns and anxiety. Ultimately, establishing a well-defined system for record-tracking can help physicians avoid malpractice liability claims because of a failure to follow-up.

 

In the previous issue of The New Gastroenterologist, we discussed statistics and the basis on which most gastroenterologists are sued as well as what you can do to minimize this risk. In this second article, we discuss steps to assist in your defense in the event you have been sued. The following suggestions are based on our experience as defense attorneys who practice in the arena of medical malpractice.

If you have been sued, it is imperative that you notify your insurer immediately, as this may be required under your policy for coverage. It is also best practice to notify the carrier and/or the hospital (if it occurred at the hospital) of any incident or serious event, bad outcome, or letters from lawyers representing the patients. This allows for early investigation and, in some cases, intervention.

Do not, under any circumstances, add or alter the plaintiff’s medical records. Although you have continued access to electronic medical records, accessing or altering these documents leaves an electronic trail. Attorneys are now frequently requesting an “audit trail” during discovery, which shows who and when someone accessed or altered relevant medical records. Additionally, it is likely that the plaintiff’s counsel has already obtained and reviewed records for their client. As such, counsel will notice any alterations and will require an explanation as to the same. If you did alter any medical records, it is important that you notify your attorney about the specifics of such.

You should not discuss anything about the case with anyone other than your spouse and attorney. This will prevent plaintiff’s counsel from deposing additional witnesses and limit the amount of people potentially forced to testify.

After you have secured an attorney, it is critical that you arrange a meeting to develop a positive relationship early in the litigation process. This is important for many reasons. A medical malpractice case can be a long and arduous process which requires that you be involved with your attorney during the course of the litigation. For the attorney-client relationship to be successful, it is imperative that you know and feel comfortable with your attorney and develop confidence and trust in her. Without this trust, it will be difficult for you to accept various decisions or suggestions that the attorney believes are in your best interest. Conversely, the attorney should get to know you and understand your background, as this will assist in your representation.

A good relationship with you will also aid your attorney in educating herself on medical concepts relating to your case. Remember, your attorney most likely has not attended medical school and many of the medical concepts will initially be new to her. By the time trial arrives, however, your attorney will be very familiar with the medical issues in your case. This learning process can be expedited with your assistance and research.

Finally, be sure to respond fully and honestly to questions from your attorney, regardless of whether you view it as harmful, irrelevant, or unimportant. Anything you tell your attorney is confidential and protected by privilege. Your attorney is your ally. It is her job to help you. Thus, it is essential that you respond fully and honestly to all questions posed by your attorney and disclose all possibly relevant information.
 

Your deposition

At some point during the lawsuit, the plaintiff’s attorney will take your deposition. The plaintiff’s attorney will strive to obtain concessions that establish the standard of care, breach of the standard, causation, and damages. Your deposition is not the time for you to provide explanations. It is the time for you to concisely answer specific questions posed by counsel without volunteering any additional information. Ultimately, trials build on what occurs during depositions. Preparation is key. Be open to advice or criticisms from your lawyer. Try to eliminate any quirks or habits that interfere with the substance of your testimony or perceived credibility. A deposition is not a casual conversation, nor is it a test of your memory. Limit your answers to personal knowledge; never guess or speculate. If you do not know the answer to a question, or do not remember something, it is perfectly acceptable for you to say so. Only answer questions that you understand. You are allowed to ask the plaintiff’s counsel to repeat or rephrase questions.

Once you have answered a question, stick to your answer if it is accurate. It is fine to change an answer, but do not change it simply because the plaintiff’s counsel is pushing you to do so. Aggressive interrogation by opposing counsel may occur. Never argue or quibble with the plaintiff’s lawyer; leave all arguing to your lawyer. A witness who is calm, courteous, and confident is more likely to appear credible. The plaintiff’s attorney may request that your deposition be videotaped. If this is the case, be mindful of your mannerisms, tone of voice, and appearance. The videotape may end up being played in front of a jury.

Finally, and most importantly, always tell the truth. Discuss any anticipated issues or concerns with your lawyer before your deposition.
 

 

Preparing for trial

A trial can last anywhere from 1 to 3 weeks. Your daily presence (including at the jury selection before the trial begins) is mandatory and in your own best interest. Your lawyer will have little control over the date on which the trial will occur. That date will be set by a judge, who will not be sympathetic to your scheduling problems. Be prepared to cancel patients’ appointments and any procedures already scheduled. The jury’s perception of you can be influenced by your presence and demonstrated dedication to your defense.

Conclusion

In summary, remember that there are things you can do both before and after you are sued to minimize litigation and its impact. As mentioned previously, before a lawsuit, and as a regular part of your practice, it is important that you stay current with medical advances, that you take the time to create a relationship with your patients involving quality communication, and that you thoroughly and legibly document all aspects of care provided. After a suit is filed against you, make sure you notify your insurer immediately, do not alter any records or discuss the case with anyone other than your lawyer or spouse, and do all you can to create a productive and honest relationship with your lawyer. This relationship will be invaluable as you do the difficult and time-consuming work of preparing for your deposition and trial, and it can help you endure and successfully navigate the litigation process.

The Importance of Follow-Up: Further Advice on How to Decrease the Risk of Being Sued

A common basis for establishing a malpractice liability claim against a physician is the failure to follow-up or track a patient’s test results. In today’s world, there is an increasing number of moving parts involved in any given patient’s care. A particular patient may treat with numerous physicians, all of whom use different record systems. Electronic medical record systems have made records more accessible and easier to track, but they also present a new set of challenges.

Every physician needs to determine how they plan to track test results. The ideal system would allow a physician to quickly get back any lab or diagnostic test that he or she orders. All staff members should know how the physician’s system works. Otherwise, test results might accidentally be filed before the physician reviews them or a miscommunication could prevent test results from being delivered. Whatever choice of system, it is key to follow and effectively use the program every time.

Additionally, it can be beneficial to let the patient know when he or she can expect to hear about their results, as failure to keep the patient reasonably informed can create a new set of patient concerns and anxiety. Ultimately, establishing a well-defined system for record-tracking can help physicians avoid malpractice liability claims because of a failure to follow-up.

 

An unfortunate fact for many physicians practicing in the United States is that they will contend with medical malpractice suits at some point in their careers. While data specific to gastroenterology malpractice claims is difficult to find,¹ the Physician Insurers Association of America has reported that out of the 28 specialty fields of medicine analyzed from 1985 to 2004, gastroenterology ranked 21st in the number of claims reported², representing about 2% of the total overall number of claims.

A 2007-2008 survey of 5,825 physicians, not limited by subspecialty, showed that 42.2% of all physicians had a malpractice claim filed against them at some point in their career.³ Of all physicians aged 55 and older, 60.5% of respondents had been sued at some point during their career.³ Incidents of medical liability claims were much higher among men (47.5%) than among women (23.9%). ³ The average cost to defend these cases through trial is more than $100,000, but the average cost diminishes to $21,163 with cases that are dropped, dismissed, or withdrawn prior to trial.³

In 2017, JAMA Internal Medicine published additional statistical findings related to medical malpractice claims.⁴JAMA reported that the rate of claims paid on behalf of all physicians had declined by 55.7% between 1992 and 2014; from 20.1 per 1,000 physicians to 8.9 per 1000 physicians.⁴ The mean payment for the 280,368 claims reported in the National Practitioner Data Bank during this time frame was $329,565 (adjusted to 2014 dollars).⁴

JAMA also reported that between 2004 and 2014, diagnostic error served as the most prevalent basis for allegations of medical negligence against all physicians.⁴ These allegations comprised 31.8% of claims during this period.⁴ With respect to gastroenterologists, prior data from 1985-2004 similarly suggests that diagnostic interview, evaluation, or consultation results in the most claims against this group of physicians.⁴ The most common allegations specific to gastroenterologists involve malignant neoplasms of the colon and rectum, followed by abdominal and pelvic symptoms, regional enteritis, colitis, and malignant neoplasms of the stomach.² Errors in diagnosing stomach, colon, and rectal cancers resulted in the highest average indemnity payment.²

Professional liability

Patients can allege or establish malpractice liability against a doctor based on a number of things; we will discuss a few of the most common types of liability, offer suggestions as to how you might minimize your risk of being sued, and how best to cope when you are sued.

Negligence: One of the most common theories you may be sued under is negligence. To state a negligence claim against a physician, a plaintiff must show that the doctor owed the patient a duty recognized by law, that the physician breached that duty, that the alleged breach resulted in injury to the patient, and that the patient sustained legally recognized damages as a result. In a lawsuit brought on the basis of claimed medical negligence, a patient claims that a physician, in the course of rendering treatment, failed to meet the applicable standard of care.

Informed consent: Another theory is informed consent. A physician must obtain full, knowing, and voluntary informed consent from her patient for any nonemergency surgical procedure. A patient’s lack of consent claim is premised on the allegation that the physician failed to reveal a significant risk, which caused harm to the plaintiff, and that had the potential risk been disclosed, a reasonable person would not have consented to the treatment or procedure. Informed consent requires more from a physician than simply having the patient sign a form. The physician performing the procedure for which consent is required must ensure that the patient is aware of the benefits of the proposed treatment, the material risks of the treatment, alternative options to the proposed treatment, and possible consequences of declining the treatment. This information must be communicated to a patient so that she clearly understands it.

Contractual liability of doctor to patient: Physicians and patients can enter into express written contracts regarding the care provided. These contracts can include various treatment plans, the likelihood of success, and even the physician’s promise to cure. Traditionally, courts have respected a physician’s freedom to contract as he or she chooses. However, once a contract is formed, a plaintiff may have a cause of action for breach of contract if the outcome of the treatment is not what was promised.
 

Minimizing risk

Opportunities exist to decrease the chances of being sued. One major area involves documentation, as the patient’s records will serve as the basis of the litigation. Accordingly, physicians should ensure notations are legible so that lawyers, jurors, and others participating in the patient’s care do not misunderstand the records. This has been made easier by the recent implementation of electronic health records. Records should also be comprehensive and kept contemporaneously with treatment to maintain accuracy and to avoid the appearance of impropriety. Subsequent entries must be clearly identified and dated. Never change records after a patient commences a suit against you. Remember that everything you write can come out during the investigation phase of the lawsuit.

 

Another opportunity to decrease your chances of being sued is to keep informed about recent developments in your field. Make a point to read pertinent literature, attend seminars, and do whatever is necessary to stay aware of, and to incorporate into your practice, current methods of treatment and diagnosis.

Physicians should also be cognizant of contractual liability. When discussing treatment, never guarantee results. Additionally, once a physician-patient relationship is established, you cannot withdraw from the relationship without providing adequate notice to the patient in time to obtain alternative care. Terminating the relationship without such is called abandonment, and can result in professional discipline and civil liability.

Finally, physicians should be aware of how relationships with the patient, institutions, and health care providers can affect liability. Communication is key to fostering a good doctor-patient relationship, and studies support that the quality of the doctor-patient relationship is a primary factor in determining whether a patient will sue her physician.² You should also understand how your relationship with your workplace affects your potential liability. For example, your workplace may be vicariously liable for negligence found on your part, and therefore, deemed ultimately responsible for any verdict or settlement amount. Conversely, you could be found vicariously liable for the actions of health care providers with whom you work. In the surgery context, the basis for this type of liability is that the surgeon is in a position of highest authority and has ultimate control over everything that occurs during the course of surgery. Therefore, you should understand the consequences of your relationships with the patients, facilities, and providers with which you work.⁵

Conclusion

Before a lawsuit, and as a regular part of your practice, it is important that you thoroughly and legibly document all aspects of care provided, stay current with medical advances, and take the time to create a relationship with your patients involving quality communication. It is impossible for us to provide you with enough information to adequately prepare you for the day on which you may be sued. We nevertheless hope that following the aforementioned suggestions will be of some help.

References

1. Medical Malpractice Claims and Risk Management in Gastroenterology and Gastrointestinal Endoscopy. American Society for Gastrointestinal Endoscopy, 2017. <www.asge.org>.

2. Physician Insurers Association of America. PIAA Claim Trend Analysis: Gastroenterology, iv. Lawrenceville, N.J.: PIAA, 2004. <http://www.piaa.us>.

3. Kane C., Policy Research Perspective: Medical Liability Claim Frequency: 2007-2008 Snapshot of Physicians, American Medical Association, 2010.

4. Schaffer A.C., et al. JAMA Internal Med. 2017;177(5):710-8.

5. Dodge A.M. Wilsonville, Ore. Book Partners, Inc. 2001.

 

An unfortunate fact for many physicians practicing in the United States is that they will contend with medical malpractice suits at some point in their careers. While data specific to gastroenterology malpractice claims is difficult to find,¹ the Physician Insurers Association of America has reported that out of the 28 specialty fields of medicine analyzed from 1985 to 2004, gastroenterology ranked 21st in the number of claims reported², representing about 2% of the total overall number of claims.

A 2007-2008 survey of 5,825 physicians, not limited by subspecialty, showed that 42.2% of all physicians had a malpractice claim filed against them at some point in their career.³ Of all physicians aged 55 and older, 60.5% of respondents had been sued at some point during their career.³ Incidents of medical liability claims were much higher among men (47.5%) than among women (23.9%). ³ The average cost to defend these cases through trial is more than $100,000, but the average cost diminishes to $21,163 with cases that are dropped, dismissed, or withdrawn prior to trial.³

In 2017, JAMA Internal Medicine published additional statistical findings related to medical malpractice claims.⁴JAMA reported that the rate of claims paid on behalf of all physicians had declined by 55.7% between 1992 and 2014; from 20.1 per 1,000 physicians to 8.9 per 1000 physicians.⁴ The mean payment for the 280,368 claims reported in the National Practitioner Data Bank during this time frame was $329,565 (adjusted to 2014 dollars).⁴

JAMA also reported that between 2004 and 2014, diagnostic error served as the most prevalent basis for allegations of medical negligence against all physicians.⁴ These allegations comprised 31.8% of claims during this period.⁴ With respect to gastroenterologists, prior data from 1985-2004 similarly suggests that diagnostic interview, evaluation, or consultation results in the most claims against this group of physicians.⁴ The most common allegations specific to gastroenterologists involve malignant neoplasms of the colon and rectum, followed by abdominal and pelvic symptoms, regional enteritis, colitis, and malignant neoplasms of the stomach.² Errors in diagnosing stomach, colon, and rectal cancers resulted in the highest average indemnity payment.²

Professional liability

Patients can allege or establish malpractice liability against a doctor based on a number of things; we will discuss a few of the most common types of liability, offer suggestions as to how you might minimize your risk of being sued, and how best to cope when you are sued.

Negligence: One of the most common theories you may be sued under is negligence. To state a negligence claim against a physician, a plaintiff must show that the doctor owed the patient a duty recognized by law, that the physician breached that duty, that the alleged breach resulted in injury to the patient, and that the patient sustained legally recognized damages as a result. In a lawsuit brought on the basis of claimed medical negligence, a patient claims that a physician, in the course of rendering treatment, failed to meet the applicable standard of care.

Informed consent: Another theory is informed consent. A physician must obtain full, knowing, and voluntary informed consent from her patient for any nonemergency surgical procedure. A patient’s lack of consent claim is premised on the allegation that the physician failed to reveal a significant risk, which caused harm to the plaintiff, and that had the potential risk been disclosed, a reasonable person would not have consented to the treatment or procedure. Informed consent requires more from a physician than simply having the patient sign a form. The physician performing the procedure for which consent is required must ensure that the patient is aware of the benefits of the proposed treatment, the material risks of the treatment, alternative options to the proposed treatment, and possible consequences of declining the treatment. This information must be communicated to a patient so that she clearly understands it.

Contractual liability of doctor to patient: Physicians and patients can enter into express written contracts regarding the care provided. These contracts can include various treatment plans, the likelihood of success, and even the physician’s promise to cure. Traditionally, courts have respected a physician’s freedom to contract as he or she chooses. However, once a contract is formed, a plaintiff may have a cause of action for breach of contract if the outcome of the treatment is not what was promised.
 

Minimizing risk

Opportunities exist to decrease the chances of being sued. One major area involves documentation, as the patient’s records will serve as the basis of the litigation. Accordingly, physicians should ensure notations are legible so that lawyers, jurors, and others participating in the patient’s care do not misunderstand the records. This has been made easier by the recent implementation of electronic health records. Records should also be comprehensive and kept contemporaneously with treatment to maintain accuracy and to avoid the appearance of impropriety. Subsequent entries must be clearly identified and dated. Never change records after a patient commences a suit against you. Remember that everything you write can come out during the investigation phase of the lawsuit.

 

Another opportunity to decrease your chances of being sued is to keep informed about recent developments in your field. Make a point to read pertinent literature, attend seminars, and do whatever is necessary to stay aware of, and to incorporate into your practice, current methods of treatment and diagnosis.

Physicians should also be cognizant of contractual liability. When discussing treatment, never guarantee results. Additionally, once a physician-patient relationship is established, you cannot withdraw from the relationship without providing adequate notice to the patient in time to obtain alternative care. Terminating the relationship without such is called abandonment, and can result in professional discipline and civil liability.

Finally, physicians should be aware of how relationships with the patient, institutions, and health care providers can affect liability. Communication is key to fostering a good doctor-patient relationship, and studies support that the quality of the doctor-patient relationship is a primary factor in determining whether a patient will sue her physician.² You should also understand how your relationship with your workplace affects your potential liability. For example, your workplace may be vicariously liable for negligence found on your part, and therefore, deemed ultimately responsible for any verdict or settlement amount. Conversely, you could be found vicariously liable for the actions of health care providers with whom you work. In the surgery context, the basis for this type of liability is that the surgeon is in a position of highest authority and has ultimate control over everything that occurs during the course of surgery. Therefore, you should understand the consequences of your relationships with the patients, facilities, and providers with which you work.⁵

Conclusion

Before a lawsuit, and as a regular part of your practice, it is important that you thoroughly and legibly document all aspects of care provided, stay current with medical advances, and take the time to create a relationship with your patients involving quality communication. It is impossible for us to provide you with enough information to adequately prepare you for the day on which you may be sued. We nevertheless hope that following the aforementioned suggestions will be of some help.

References

1. Medical Malpractice Claims and Risk Management in Gastroenterology and Gastrointestinal Endoscopy. American Society for Gastrointestinal Endoscopy, 2017. <www.asge.org>.

2. Physician Insurers Association of America. PIAA Claim Trend Analysis: Gastroenterology, iv. Lawrenceville, N.J.: PIAA, 2004. <http://www.piaa.us>.

3. Kane C., Policy Research Perspective: Medical Liability Claim Frequency: 2007-2008 Snapshot of Physicians, American Medical Association, 2010.

4. Schaffer A.C., et al. JAMA Internal Med. 2017;177(5):710-8.

5. Dodge A.M. Wilsonville, Ore. Book Partners, Inc. 2001.

 

An unfortunate fact for many physicians practicing in the United States is that they will contend with medical malpractice suits at some point in their careers. While data specific to gastroenterology malpractice claims is difficult to find,¹ the Physician Insurers Association of America has reported that out of the 28 specialty fields of medicine analyzed from 1985 to 2004, gastroenterology ranked 21st in the number of claims reported², representing about 2% of the total overall number of claims.

A 2007-2008 survey of 5,825 physicians, not limited by subspecialty, showed that 42.2% of all physicians had a malpractice claim filed against them at some point in their career.³ Of all physicians aged 55 and older, 60.5% of respondents had been sued at some point during their career.³ Incidents of medical liability claims were much higher among men (47.5%) than among women (23.9%). ³ The average cost to defend these cases through trial is more than $100,000, but the average cost diminishes to $21,163 with cases that are dropped, dismissed, or withdrawn prior to trial.³

In 2017, JAMA Internal Medicine published additional statistical findings related to medical malpractice claims.⁴JAMA reported that the rate of claims paid on behalf of all physicians had declined by 55.7% between 1992 and 2014; from 20.1 per 1,000 physicians to 8.9 per 1000 physicians.⁴ The mean payment for the 280,368 claims reported in the National Practitioner Data Bank during this time frame was $329,565 (adjusted to 2014 dollars).⁴

JAMA also reported that between 2004 and 2014, diagnostic error served as the most prevalent basis for allegations of medical negligence against all physicians.⁴ These allegations comprised 31.8% of claims during this period.⁴ With respect to gastroenterologists, prior data from 1985-2004 similarly suggests that diagnostic interview, evaluation, or consultation results in the most claims against this group of physicians.⁴ The most common allegations specific to gastroenterologists involve malignant neoplasms of the colon and rectum, followed by abdominal and pelvic symptoms, regional enteritis, colitis, and malignant neoplasms of the stomach.² Errors in diagnosing stomach, colon, and rectal cancers resulted in the highest average indemnity payment.²

Professional liability

Patients can allege or establish malpractice liability against a doctor based on a number of things; we will discuss a few of the most common types of liability, offer suggestions as to how you might minimize your risk of being sued, and how best to cope when you are sued.

Negligence: One of the most common theories you may be sued under is negligence. To state a negligence claim against a physician, a plaintiff must show that the doctor owed the patient a duty recognized by law, that the physician breached that duty, that the alleged breach resulted in injury to the patient, and that the patient sustained legally recognized damages as a result. In a lawsuit brought on the basis of claimed medical negligence, a patient claims that a physician, in the course of rendering treatment, failed to meet the applicable standard of care.

Informed consent: Another theory is informed consent. A physician must obtain full, knowing, and voluntary informed consent from her patient for any nonemergency surgical procedure. A patient’s lack of consent claim is premised on the allegation that the physician failed to reveal a significant risk, which caused harm to the plaintiff, and that had the potential risk been disclosed, a reasonable person would not have consented to the treatment or procedure. Informed consent requires more from a physician than simply having the patient sign a form. The physician performing the procedure for which consent is required must ensure that the patient is aware of the benefits of the proposed treatment, the material risks of the treatment, alternative options to the proposed treatment, and possible consequences of declining the treatment. This information must be communicated to a patient so that she clearly understands it.

Contractual liability of doctor to patient: Physicians and patients can enter into express written contracts regarding the care provided. These contracts can include various treatment plans, the likelihood of success, and even the physician’s promise to cure. Traditionally, courts have respected a physician’s freedom to contract as he or she chooses. However, once a contract is formed, a plaintiff may have a cause of action for breach of contract if the outcome of the treatment is not what was promised.
 

Minimizing risk

Opportunities exist to decrease the chances of being sued. One major area involves documentation, as the patient’s records will serve as the basis of the litigation. Accordingly, physicians should ensure notations are legible so that lawyers, jurors, and others participating in the patient’s care do not misunderstand the records. This has been made easier by the recent implementation of electronic health records. Records should also be comprehensive and kept contemporaneously with treatment to maintain accuracy and to avoid the appearance of impropriety. Subsequent entries must be clearly identified and dated. Never change records after a patient commences a suit against you. Remember that everything you write can come out during the investigation phase of the lawsuit.

 

Another opportunity to decrease your chances of being sued is to keep informed about recent developments in your field. Make a point to read pertinent literature, attend seminars, and do whatever is necessary to stay aware of, and to incorporate into your practice, current methods of treatment and diagnosis.

Physicians should also be cognizant of contractual liability. When discussing treatment, never guarantee results. Additionally, once a physician-patient relationship is established, you cannot withdraw from the relationship without providing adequate notice to the patient in time to obtain alternative care. Terminating the relationship without such is called abandonment, and can result in professional discipline and civil liability.

Finally, physicians should be aware of how relationships with the patient, institutions, and health care providers can affect liability. Communication is key to fostering a good doctor-patient relationship, and studies support that the quality of the doctor-patient relationship is a primary factor in determining whether a patient will sue her physician.² You should also understand how your relationship with your workplace affects your potential liability. For example, your workplace may be vicariously liable for negligence found on your part, and therefore, deemed ultimately responsible for any verdict or settlement amount. Conversely, you could be found vicariously liable for the actions of health care providers with whom you work. In the surgery context, the basis for this type of liability is that the surgeon is in a position of highest authority and has ultimate control over everything that occurs during the course of surgery. Therefore, you should understand the consequences of your relationships with the patients, facilities, and providers with which you work.⁵

Conclusion

Before a lawsuit, and as a regular part of your practice, it is important that you thoroughly and legibly document all aspects of care provided, stay current with medical advances, and take the time to create a relationship with your patients involving quality communication. It is impossible for us to provide you with enough information to adequately prepare you for the day on which you may be sued. We nevertheless hope that following the aforementioned suggestions will be of some help.

References

1. Medical Malpractice Claims and Risk Management in Gastroenterology and Gastrointestinal Endoscopy. American Society for Gastrointestinal Endoscopy, 2017. <www.asge.org>.

2. Physician Insurers Association of America. PIAA Claim Trend Analysis: Gastroenterology, iv. Lawrenceville, N.J.: PIAA, 2004. <http://www.piaa.us>.

3. Kane C., Policy Research Perspective: Medical Liability Claim Frequency: 2007-2008 Snapshot of Physicians, American Medical Association, 2010.

4. Schaffer A.C., et al. JAMA Internal Med. 2017;177(5):710-8.

5. Dodge A.M. Wilsonville, Ore. Book Partners, Inc. 2001.