How to Stay Out of Litigation

We’ve defended physicians involved in lawsuits for more than a decade. After representing dozens of physicians, nurses, and other healthcare professionals, we can say one thing for certain: No one likes to get sued.

Good physicians struggle with the litigation process. Even when their care has been absolutely appropriate, many doctors experience great anxiety when they are accused of having negligently injured a patient. Because they have trained so hard to gain their expertise, many of our clients have found that a lawsuit strikes at them personally as well as professionally. At the end of the day, lawsuits cause stress, take physicians away from their personal lives, and often lead to serious financial and professional consequences.

Therefore, one of the questions that we most often receive is, “How can a physician avoid lawsuits?”

Top 10 Ways to Stay Out of Litigation

1) Good documentation: Often, in a lawsuit, plaintiffs’ attorneys will tell the jury the old adage, “If it’s not in the record, it didn’t happen.” What everyone who has practiced medicine knows, however, is that many things don’t make it to the chart. Physicians don’t have the time to recount their conversations with patients verbatim. What we want to see in the chart are the following:

1. A description of the information provided by the patient that factored into your diagnoses or treatment decisions;
2. A description of the physical findings or laboratory results that factored into your diagnoses and treatment decisions;
3. A discussion of why you made a particular decision;
4. A discussion of the course of treatment you selected; and
5. A discussion of your anticipated follow-up.

Of these elements, we most often fail to see a discussion of why you made a particular decision, and this is a crucial piece of the record. As you know, physicians often have a broad range of treatment choices. Including information about why you selected a particular course of treatment—in light of the available data—makes the record more understandable to the jury. A good chart lays out more than just the physician’s actions. A good chart is so complete that another physician could assume care for the patient tomorrow, easily understanding both the course of treatment and why you chose it.

2) Good communication: In his book Blink, Malcolm Gladwell describes something defense lawyers have known for many years: That the quality of the care does not determine whether or not a physician gets sued. There are many instances in which a physician who makes a mistake that causes an injury manages to avoid litigation. There are also many instances in which a physician’s care is appropriate, but the patient sues the physician after a recognized complication. What makes the difference?

More often than not, the determining factor in whether or not a physician is sued is the patient’s perception of whether or not the physician cared about her. In situations in which patients leave the physician’s office believing that the physician listened carefully to their complaints, spent the time to explain the course of treatment, and genuinely cared about them as people, we don’t see as many lawsuits. If a physician explains why a complication occurred—not just that it occurred—and appears empathetic to the patient, she has less of a motivation to sue. Conversely, if the patient feels like the physician sees her as a commodity or didn’t take the time to understand her complaints, the risk of litigation goes up.