Malpractice liability is one of those issues that keeps many physicians awake at night, particularly this past year.
Dealing with the effects of the COVID-19 pandemic - and the resulting increase in the virtual and remote care they’re conducting - made it an especially challenge time.
Making matters worse, COVID-19 cases are spiking across the country in the middle of flu season.
So how can physicians ensure they’re doing everything possible to minimize their liability?
What are some of the liability risks from COVID-19? What should physicians watch out for?
The real answer is misdiagnosis. That’s the one thing physicians want to be careful about right now.
Adding to that, clinicians are stressed, patients are anxious and testing is difficult.
All of that just makes it even harder for clinicians to be sure they’re making the right diagnosis.
People are afraid to go to a doctor’s office. So, sometimes you’re doing virtual visits. But they’ve got their issues.
There have been very few malpractice cases around virtual visits in the past because (physicians didn’t do that many of them).
But for the cases we’ve had, a lot of them have been around misdiagnosis.
So misdiagnosis is the one thing physicians really want to be careful of during this time.
One of the resources they have on their end is on their website. But the idea is that, as human beings, we think with two different systems.
There’s one system that’s sort of our automatic thinking. System two is the more cognitive way that our brains work.
And if you think about when seeing patients, you want to be careful not to use system one too often, right?
Patients come in with something, and you go right to what you think it is. And then you think, “Well, wait a second.
Let me take a step back and think because it may actually be something else.”
And that’s a really interesting way of thinking about how you treat patients during this time, with all these other things happening at the same time that can really impede your ability.
What practical steps should physicians do to protect themselves from liability?
We oversimplify things by using what we call the three Ps. The first P is preventing adverse events.
Patients have diseases. Doctors treat them. Can you make sure that things don’t go wrong? You can’t always do that.
You know that in the overall world of patient safety, probably half the things that go wrong can be prevented, and you keep getting better at it.
Certain things that you put in place allow you to prevent bad things from happening. But you know you can’t prevent all adverse events.
The second P is: Can you preclude a malpractice case even in the face of an adverse event?
The good news about malpractice, if there is such a thing, is that it’s pretty rare. Even when there are adverse events, it’s not typical to have a lawsuit.
And most of you believe the way you can avoid a lawsuit, even in the face of an adverse event, is with communication - how you communicate with patients both before and after an adverse event happens.
When you talk to patients about complications before a procedure, that’s informed consent.
When you talk to them about complications afterward, it’s called an excuse.
So there needs to be this continuum of doctors talking to patients and families at the beginning of treatment, during treatment and after treatment.
And that’s just a great way to avoid malpractice, even when things go wrong.
And the final P is about prevailing in a lawsuit, and that is about documentation.
So think about the three Ps - prevent adverse events, preclude by improving communication and prevail by improving documentation - in the context of the coronavirus pandemic.
How do you protect your patients from adverse events? We’re talking about having the right (personal protective equipment), taking the usual precautions so there isn’t an adverse event and treating them properly.
That’s the most important thing. But also you talk about communication and informing patients of risks, right?
Talking to them about the things that you hear about all the time: wearing masks, washing your hands, watching your distance with other people.
Those are the things that are going to keep people safe before vaccination.
Now you’re starting to talk about vaccinations. It’s very exciting. And you certainly tell the patient to get a flu vaccine. That’s important too...
And then talk to patients and families about prevention of other illnesses and make sure they’re getting their routine screening, which is really a concern to a lot of people.
Mammography, (prostate-specific antigen) testing - all the things that you normally do that you didn’t do for a long period of time, you need to get back to doing those things to make sure you don’t suffer from other illnesses besides COVID-19.
And then it’s documentation that is critical. No one reads a patient’s chart when nothing bad happens.
Only when there’s a lawsuit do people get really concerned.
So especially when patients have problems, when there are issues, you really want to pay attention to what you’re writing in the chart to make sure you’re (including) all the things you did to show that you did everything in the best interest of the patient.
In regard to those important screening tests, how should a physician protect themselves if a patient has not been screened? How should that be handled if this sort of gap in potential care occurs?
It’s just writing down in your chart what the communication has been with your patients to let them know they really need to come in and get their preventive testing done.
That you’ve called patients to follow up with them,that your office staff has been in touch with them.
It’s really documenting everything. You want to be able to look in the chart and see that you did all the right things.