How to Stay Out of Litigation

One of the most important aspects of good communication is adequate informed consent. Remember, informed consent is a dialogue—not a lecture. It requires physicians to discuss:

1. The substantial risks of the treatment;
2. The benefits of the treatment; and
3. The alternatives to the treatment. Sometimes it’s difficult to determine the substantial risks because a patient and a physician may view the magnitude of a particular risk differently. Our rule of thumb is that any risks associated with serious long-term sequelae, such as permanent impairment, must be discussed, even if the probability of the risk occurring is remote.

3) Good consultation: Many hospitalists do not have long-term relationships with their patients. After a course of hospital treatment, the patient will return to her regular physician. A common breakdown occurs when the consultation between the hospitalist and the regular physician is inadequate.

On the front end, the hospitalist who receives a patient should take the opportunity, if possible, to consult with the regular physician about any ongoing course of treatment. Unfortunately, patients are not always accurate medical historians and may not fully appreciate their conditions or courses of treatment. Consulting with the regular physician helps to eliminate the possibility that an important aspect of the patient’s history or condition is overlooked.

On the back end, when the regular physician resumes care of the patient, he should be able to reinforce the course of hospital care and provide an additional layer of education about why the hospitalist made certain treatment decisions. Of course, the regular physician can serve in this role only if the hospitalist has taken the opportunity to inform the regular physician about the course of care.

4) Accurate representations: We are seeing more cases in which physicians are being sued for alleged misrepresentations to patients.

For example, each of you has probably seen an ad in which a Lasik provider advertises that the procedure is “20/20 or it’s free.” A patient may be able to allege that this advertisement is a guarantee that the procedure will result in 20/20 vision, but no medical provider should guarantee a successful outcome. Each human body reacts differently to treatment, and there is no physician who has not seen an unexpected outcome. Providing patients with unrealistic expectations about their outcomes can lead to lawsuits, even if a physician has obtained a signed informed consent detailing the risks involved.

The situation is even worse when the physician misrepresents his experience. We have defended cases in which physicians have told patients that they had performed a procedure hundreds of times, when that representation was not accurate. One of the greatest assets available to physicians in litigation is their advanced training and professional experience, but that asset becomes worthless if a physician gives the jury a reason to doubt his credibility. Once the jury believes that a physician has misrepresented his experience, he loses the ability to credibly explain his treatment decisions.

5) HMO-directed medicine: It’s no secret that many patients are dissatisfied with their managed care plans. In the abstract, patients understand that rising healthcare costs have caused insurers to limit care, but they are unwilling to view their own situations objectively. They believe that they are entitled to unlimited medical resources. When the HMO tells patients “no,” they have a tendency to transfer their frustrations to their physicians.

The coverage provided by the HMO is a contractual matter between the patient and the insurer. At the end of the day, the treating physician does not control the patient’s eligibility for certain types of care. What the treating physician cannot overlook, however, is that the physician-patient relationship is a personal one that exists independently of the insurance relationship. The standards of professional care require a physician to inform patients of all treatment options—even if the physician believes that the HMO is unlikely to authorize some of them. Ultimately, even if the cost of a treatment option would be prohibitive, a physician must remember that the patient has a right to be informed and to make her own decisions. Physicians should also be receptive to advocating on a patient’s behalf about the reasonableness or necessity of care.