“Sorry” Need not be the Hardest Word: Stopping Malpractice Litigation Before It Starts by M. Scott Bailey and Max Wallace
Family physicians, perhaps more than any other specialty of medical practitioners, hold a special place in the lives of those that they care for. A physician who tends to all an individual’s varied health concerns, oftentimes treating multiple generations of the same family, can form a bond with patients that transcends that of the typical doctor-patient relationship. As gratifying as that bond can be to patient and provider alike when disputes or untoward outcomes arise the relationship can become adversarial. No physician wishes to hear that a patient is displeased, much less that a patient is contemplating litigation for some real or perceived injury. Every doctor should know, however, that when faced with the specter of a malpractice suit there are many ways to allay a patient’s concerns while mitigating risk of litigation.
Perhaps the most common pre-litigation scenario a medical provider encounters is a patient who feels harmed by the provider in some way. In almost all cases, there is no better way to resolve a nascent conflict than by offering a simple apology. Imagine that a physician mistakenly prescribes medication to which a patient has a reaction or prescribes the right medication in the wrong dose. Assuming the effects of these errors are mild, it is possible that a patient will be harmed more emotionally than physically. In such a circumstance, a simple admission of error or expression of regret by the physician can give a patient peace of mind and quickly defuse any lingering animosity. Even in cases with more severe injuries, it is remarkable how many patients turned plaintiffs indicate that if only they would have heard their doctor acknowledge the injury with an expression of sympathy or regret, they may not have pursued litigation.
Georgia law recognizes the value of allowing physicians to speak candidly about mistakes in a patient’s care, or express sympathy for a patient experiencing an unexpected outcome. In fact, the law prohibits plaintiffs from introducing a variety of sympathetic behavior by the physician into evidence at trial. Physicians can safely express regret, apology, sympathy, commiseration, condolence, compassion, mistake, error, or a general sense of benevolence to patients, their relatives, or their representative. Physicians should therefore feel free to use such language as “I am sorry this happened,” “I know how difficult this must be,” or even, “I made a mistake.” This law intends to allow providers to be frank with patients without fear of a well-intentioned statement being turned against them. Family physicians chose their specialty in part because of the long-term relationships they develop with their patients. The law encourages physicians to foster that relationship even in the face of a poor outcome or disputed treatment.
Moreover, it is never too early or too late to issue an apology or sympathetic statement. Georgia, unlike other states, does not limit the time frame in which these discussions can occur. The Colorado Candor Act, for example, enables similar privileges for physicians to discuss bad outcomes with patients. The Candor Act in fact goes further than Georgia law in some ways, enabling physicians to discuss the details of how a bad outcome occurred and what steps are being taken to prevent future errors. Colorado, however, requires that a medical provider send formal notice of intent to initiate such a conversation within 180 days of a given incident. Georgia imposes no such requirement, and while providers should limit their conversations with patients who experienced a bad outcome to general expressions of mistake and regret, they should feel free to initiate these conversations at any time.
A second common scenario that family physicians encounter is how best to handle non-compliant patients. Sometimes, despite a physician’s best efforts a patient simply will not cooperate in their own treatment. In such a circumstance, the physician should take steps to terminate his care of the patient while ensuring that the patient is not abandoned. First, the physician should be sure to document the patient’s non-compliance and any efforts the provider has taken to correct the patient. If the patient remains intractable, the physician should draft the patient a letter, explaining in detailed, non-disparaging terms why the provider is terminating the doctor-patient relationship. This letter should also make clear that the physician will continue treating the patient for a reasonable, but brief, period such as 30 days, if necessary. The letter should also provide the patient with referrals to other providers and ready access to their medical records. In the event a provider feels uncomfortable drafting such a letter, she can contact her insurance carrier who should quickly appoint counsel to draft the letter on her behalf. If a physician follows all the above steps, even the most difficult patient will be hard pressed to make a case for abandonment or unfair treatment.
The third prelitigation circumstance doctors are likely to encounter are requests for patient records. These requests can range from benign attempts by a patient to gather their own information to formal demands issued by plaintiff’s attorneys on behalf of a new client. By the time a records request is made by a lawyer, litigation may be unavoidable. A physician’s handling of records, however, can either bolster or cripple his defense of the litigation. When compiling medical records providers should document the records request in their file and notify their insurer of the request. It is even more crucial that providers supply complete and accurate records, with no edits. This advice may seem intuitive, and very few physicians would intentionally alter patient records to change the facts. Many physicians are tempted, however, to simply clarify a point in their chart or trim distracting and irrelevant information from records. It is difficult to overstate how prejudicial these well-intentioned edits can be to a physician’s case. In the age of electronic medical records, plaintiffs and their attorneys always discover what changes a physician made to a patient’s records as well as when those changes were made. The physician is then placed in the unenviable position of explaining why he changed a patient’s records after the treatment in question. When it comes to producing medical records, honesty truly is the best policy. Even the most problematic documentation is more easily addressed than an attempt to cover up a mistake.
In all, Georgia law encourages physicians to be open and honest in their dealings with their patients, even if that honesty is accompanied by difficult conversations such as admitting a mistake or terminating a patient’s care. By being forthright and frank with patients and contacting their insurer with any concerns, doctors can effectively insulate themselves against many incidents that might otherwise become lawsuits. In the unfortunate event that a lawsuit is filed, a physician can rest easy knowing that she took reasonable steps to address a patient’s concerns and that litigation was initiated in spite of her best efforts to avoid it.
Scott Bailey and Max Wallace
Huff Powell Bailey LLC