Avoid malpractice lawsuits by being informed about the latest defenses with documentation and patient education

Today, doctors are faced with difficult challenges in the practice of chiropractic, including the need for increased knowledge in your specialty and keeping up with new laws and medical information.

More patients are choosing chiropractors as their primary care doctors than in the past. In addition, managed care has given us a whole new outlook on how doctors treat patients. Increased patient savvy with respect to outcome assessments has resulted in more patient involvement about decisions in their care. One of the biggest obstacles is legal liability from malpractice cases and claims. If a patient’s outcome attached to treatment is perceived as bad, they may blame the doctor and seek legal remedies.

Medical information is easily accessible. About 100 million people surf the Web each year to find information on health care issues. Patients expect to be referred, have diagnostic tests performed, and be provided the needed medical care as well as the care necessary to properly evaluate their cases. If a patient suffers an injury, complains of a perceived injury, has a bad outcome in the treatment, or feels undertreated, the chances of being sued rises significantly.

Some of the major issues in health care litigation are managed care or HMOs and their cost management procedures that impact patient care. HMOs are forcing doctors to hold down costs, which limits patient-care options. This may create potential problems for the doctor in failing to properly diagnose or refer a patient for continued care or diagnostic testing.

All states allow lawsuits against a business that commits unfair or deceptive trade practices. Attorneys are suing doctors and their businesses for deceptive trade practices claiming that the practice of medicine and chiropractic are businesses. Under the Unfair Trade and Deceptive Act, doctors can be sued civilly and prosecuted criminally if they are engaged in any fraudulent activities in their practices.

Under this act, claims can arise alleging that doctors engage in unconscionable and fraudulent business in the delivery of health care. This may include allegations of overcharging for medical procedures, up-coding, and billing for services not rendered or for services not medically necessary, to name a few. The possibility of a claim for negligence and unfair trade or deceptive practices together is a real possibility under the Washington Consumer Protection Act. Trade law and Internet law associated with doctors are two new areas of law that chiropractors need to be wary of in litigation.

Internet law deals with giving medical advice over the Internet. This can create a doctor-patient relationship. If harm is done to or perceived by the patient, a claim can be filed against the doctor. In addition, some states have a long arm statute.

For example, if a doctor licensed in any state gives medical advice over the Internet to a patient in another state, which the doctor is not licensed in, the doctor may have created a doctor-patient relationship. If the state has a long arm statute, that state can prosecute the doctor for practicing chiropractic in a state in which he or she is not licensed to give medical advice. In addition, the doctor may be sued for negligence if the patient follows the doctor’s advice and is injured as a result of that advice. This emerging area of law is still evolving, but expect to see more suits in the future.

Prevention Is Better
In medical malpractice, legal costs are rising faster than inflation. Defense fees have doubled as have the settlements. On average, the patient only receives half of the recovery. Expenses have increased in medical malpractice cases. The biggest expense in cases is for an expert medical witness. On average, expert witnesses receive about $3,000 per case. However, doctors win about 75% of all cases that go to trial.

One critical item in your practice should be a good prevention risk management program. The best way to win in a claim is to do a good investigation. From the doctor’s standpoint, he or she must secure the medical chart that is involved in a claim or potential claim. Review that chart, but do not alter any records. Make sure the claim or potential claim is reported to the carrier.

In today’s practice, medical malpractice insurance must be an important part of your overhead. Protect yourself by buying the proper coverage for your needs.

Risk management involves not retaining more than you can afford to lose. Failing to retain enough to save a little may come back to haunt you. In preventing medical malpractice claims, the doctor must have good communication skills with a pleasant bedside manner.

Document everything said by the patient in the chart. Train the staff to write everything down in the chart if a staff member goes into the room before the doctor and talks to the patient. Use a written informed consent before treating any patient. Listen to what the patient tells you and return patient phone calls. Get the patient involved in the history and care.

With increased pressure, doctors are forced to hold down costs, which can limit patient care options for doctors to use. This may create a problem for the DC in failing to properly diagnosis or refer a patient for care. If you have the need and medical necessity, refer that patient for proper testing or consultation with another specialist.

Risk management is also a process of tasks, functions, and decisions that deal objectively with respect to reducing unexpected financial loss to an organization. Prevention, although not always able to prevent suits, is the best way to manage risk. The first step is to identify the potential risk through regular reviews of office policy and procedures. If any risk is found to exist, determine how to eliminate it.

Most litigation is brought because the patient became angry. The doctor must control every situation in the office. Communication, listening, addressing patient concerns and issues, explaining carefully and clearly treatments and plans, and educating your patients are all good risk management techniques. All these simple techniques will go a long way toward preventing suits.

Public attitude is exerting significant economic and clinical service pressures on health care providers. The public now expects quality care and treatment that parallels the goods and services promised by society’s scientific and technological advances. Additionally, patients have come to view health care as a product rather than as a service. This has encouraged many recipients of care to use product liability as a rationale for seeking relief for actions considered wrongful or injurious.

Product liability focuses on liability of a product, namely the doctor. If the doctor does not provide quality health care and the outcome of that care causes physical harm, there may be a liability issue. For example, if the doctor knows of the potential danger and does not inform the patient, there may be a liability issue if the patient is harmed from that treatment. A chiropractor is under a duty to take reasonable steps to warn a patient of risks associated with any procedure. If the DC poses an unreasonable or foreseeable risk to the patient without a warning of the risks, there is a liability issue if the patient is harmed.

Some attorneys are bringing suit from a product liability standpoint, claiming the doctor is a product under product liability law. In most cases, tort law does not apply to the rendition of services and strict liability law does not apply to a doctor’s diagnosis or treatment. (Hoven v Kelble, 256 NW 2d. 379 (Wisc. 1977)).

Although malpractice claims originally constituted a small part of this trend, a cyclical pattern has developed as the number of cases, and resulting awards have grown. The legal profession now treats health care malpractice and liability as a specialty field, which has increased the number of medical and legal experts versed in this area of law. It is now easier for patients to seek judicial relief. Often, a liability claim is not sought for incompetence, but for negative perceptions by the patient of the process or personnel who support the health care provider. CP

Kenneth S. Ross, DC, JD, MBA, LHRM, is a retired criminal law enforcement officer and practices chiropractic in Orlando, Fla. He is a faculty member of Texas Chiropractic College and conducts a national expert witness certification course. He can be reached at 866-225-5055, or via web site: www.medtechusa.net.

The information in this article is intended for informational puposes only and does not constitute any legal advice whatsoever. Consult an attorney in your state for more specific information.