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Clinical Orthopaedics and Related Research; Volume 467, Number 2 / February, 2009; pages 427-433

By Jeffrey Segal/Michael Sacopulos
Full article located at: http://www.springerlink.com/content/l70470072p905200/?p=d3a3c9ac51be47b0a29d3cdf9fe67fb2&pi=14

Abstract  The documents patients sign on admission to a medical practice can constitute a legal contract. Medical practices around the country are attempting to use these documents as a prospective defense against medical malpractice claims. Protective contractual provisions are often attacked on grounds that they are legally void as a result of unconscionability. Widespread use of arbitration clauses have been met with mixed success. Arbitration clauses that limit damages available in medical negligence cases have been stricken in some states as having provisions that impose excessive entry costs on a patient starting the arbitration process. Other provisions relating to prequalification requirements for expert witnesses are now being used with increasing frequency. Clauses have even been placed in patient contracts that address cyber postings of adverse claims against physicians. Prospective patient contracts may be an effective means to limit exposure to medical malpractice lawsuits and to minimize defamatory cyber postings.

Clinical Orthopaedics and Related Research; 11/1/2008 (online version); print version: vol. 47, number 2; Feb. 2009; pages 420-426

By: Jeffrey Segal/Michael Sacopulos


Full article:
http://www.springerlink.com/content/m274717241n8621l/

Abstract:

Medical professional liability in the United States, as measured by total premiums paid by physicians and healthcare facilities, costs approximately $30 billion a year in direct expenses, less than 2% of the entire annual healthcare expenditures. Only a fraction of those dollars reach patients who are negligently injured. Nonetheless, the tort system has far-reaching effects that create substantial indirect costs. Medical malpractice litigation is pervasive and physicians practice defensively to avoid being named in a suit. Those extra expenditures provide little value to patients. Despite an elaborate existing tort system, patient safety remains a vexing problem. Many injured patients are denied access to timely, reasonable remedies. We propose a no-fault system supplemented by a variation of the traditional tort system whereby physicians are incentivized to follow evidence-based guidelines. The proposed system would guarantee a substantial decrease in, but not elimination of, litigation. The system would lower professional liability premiums. Injured patients would ordinarily be compensated with no-fault disability and life insurance proceeds. To the extent individual physicians pose a recurrent danger, their care would be reviewed on an administrative level. Savings would be invested in health information technology and purchase of insurance coverage for the uninsured. We propose a financial model based on publicly accessible sources.

IdeaLab: Top 10 Ways to Keep Lawyers at Bay

This article originally appeared in the May 2008 issue of Physicians Practice.
http://www.physicianspractice.com/index/fuseaction/articles.details/articleID/1156.htm

Steer clear of plaintiffs' lawyers with these simple suggestions
By Jeffrey Segal, MD

Nothing's worse than having the first appointment of your day interrupted by an unexpected — and unpleasant — surprise.

Instead of the child who is running a fever or the middle-aged man who's concerned about his blood pressure, you are faced with a sheriff serving a summons. And instead of speaking with a patient about what he can do to feel better, you are faced with a lawsuit.

Not good. Now, you need to do something to feel better.

Try these simple, easy-to-implement methods for reducing your chances of being sued — an "eat-right-and-don't-smoke" model for risk management. Here are 10 suggestions that we've gathered from the trenches:

1. Return pages from your answering service with your cell phone. Plaintiffs frequently allege that the doctor did not call them back in a timely fashion, or at all. If you call from a land line, there is no record of the call being made. Call from a cell phone and a record is created. Won't patients abuse the privilege and call you directly on your cell? Generally not.

2. Document what was said during the call. You should document every relevant (and many seemingly irrelevant) communication with your patients. After-hours calls are no exception. Use your EMR and/or call-in transcription service, if you have these. If not, create a separate voice mailbox on your office phone to be used for transcription of after-hours messages.

3. Guarantee patients that they will receive lab and radiology results in a specified time period or their office visit is free. That's right. If you tell patients that they will hear from you regarding their results, then they expect to hear from you. This is a frequent source of litigation, particularly if the test reveals something such as cancer. The doctor often assumes the staff sent information to the patient. The patient assumes the absence of information is positive. Tie your office manager's bonus to how frequently such refunds are tendered, and you will find information gets transferred with near 100 percent fidelity.

4. Document what you did not do. Although it sounds counterintuitive, there are times it makes perfect sense to document what was not done. Sometimes, there is extensive literature explaining the merits of following a particular algorithm for a particular condition, but, for perfectly good reasons, you might choose to pursue a different course. You should document your reasoning in such cases; otherwise, plaintiffs' lawyers will assume you were "unaware of such standards for treatment, and you didn't even think about it." It takes two minutes to document. If you address it upfront, it's an explanation. If you address it after the fact, it's an excuse.

5. Think twice before you send a patient to collections for small unpaid balances. If the patient's insurance carrier has already paid you hundreds or thousands of dollars, and the patient had an unhappy result, threatening to send the patient to collections for a balance of, say, $22 might not be the best way to engender good will. You'll never collect it, anyway.

6. Speak ill of your colleagues and patients at your peril. It's easy to take a verbal swing at a colleague — and tempting, in a competitive environment — but remember: what goes around comes around. Obviously, if a colleague is truly a danger to the public, the correct thing to do is speak up. But only to the appropriate authorities, not in an exam room with a patient present. Moreover, resist the temptation to pepper the chart describing your patient as "hysterical," "histrionic," or "crazy." If you are wrong, you will pay dearly. Even if you are right, you may pay dearly. Keep it professional.

7. Beware patients who speak ill of their previous doctors. When a patient talks about all the "incompetent" physicians he has seen previously, it's a red flag. You could very well be the next "incompetent" physician.

8. Never alter the record. If you alter the record after you have been served with the lawsuit, your defense attorney will develop an ulcer. Resist the urge to "clarify" the record. As noted earlier, documentation before there is a problem is considered an explanation. Documentation addressed after there is a problem is considered an excuse.

These last two tips are especially for surgeons like me — who are sadly among the most-often sued physicians.

9. Check the patient. Surgeons, this may seem elementary, but it must be said: Make sure the patient you are about to perform surgery on is indeed the correct patient. Verify the side with the pathology is indeed the side that will be prepped and draped. Have another person go through the same drill. Protocols should be in place at every facility where you work. Perform these protocols religiously. If you do not, and surgery is performed on the wrong patient or the wrong side, you will burn.

10. Don't take patients' word for it. It is well-known that smoking interferes with wound healing. Surgeons, don't assume that patients who have a history of smoking have kicked the habit, even if they tell you they have. Explain the risk before the operation, then have the patient sign a document that addresses the risk, and that affirms that the patient has indeed stopped smoking. Then, before surgery, perform a urine cotinine test with the rest of the lab work. If they've kicked the habit, the test will be negative. If the test is positive, think about rescheduling.

Jeffrey Segal, MD, is a neurosurgeon and the founder and CEO of Medical Justice Services Inc., a firm that provides doctors with a proactive way to deter and defend themselves against frivolous medical malpractice lawsuits. He may be reached through www.MedicalJustice.com.

This article originally appeared in the May 2008 issue of Physicians Practice.