Healthcare Students: Heed an Attorney’s Tips to Decrease Your Risk of a Medical Malpractice Claim
Key takeaways:
Medical malpractice claims frequently stem from poor communication between a provider and the patient.
Providers should listen to the patient’s goals, set reasonable expectations, and document patient interactions thoroughly.
These tips are not formal legal advice. For legal advice, you should consult a licensed attorney in your state.
It turns out that doctors are not the only ones subject to medical malpractice claims. Other healthcare providers — including residents — can face the same or similar claims. The specifics may vary for each state, but healthcare students' actions or omissions can subject the hospital to a medical malpractice action through what’s called vicarious liability.
To lower the risk of a malpractice claim, it is best to be clear in all communication with patients and provide clear documentation in their medical records.
What is medical malpractice?
Legally, for a patient to prevail on a medical malpractice claim, the patient must show the following:
There was a duty of care owed to the patient.
There was a breach of that duty.
The breach of that duty caused harm.
There were damages as a result of the breach.
All of these elements must be met to prevail on a medical malpractice claim. The patient must prove that the healthcare provider failed to use the skills, care, and expertise that a reasonable healthcare provider would have used in the same or similar circumstances. (Each state’s standard may slightly deviate from this standard.) The patient’s claim cannot simply be that there was a care outcome that was not desired.
An example of an undesired outcome could be a surgery where there’s an ensuing infection. An infection is a known risk and, although it’s not an ideal outcome, it is not evidence of any breach of the duty of care. The patient must prove that the rendered care was not reasonable among other providers in the same or similar specialty — i.e., that it’s a breach of the duty owed.
Additionally, there must be damages that directly resulted from failure to use reasonable care. If you have a doctor who failed to use a standard of care accepted in the medical community, but no adverse outcome or tangible damages came from it, then there is no actionable medical malpractice claim.
According to a review of claims from 2013 to 2017 by Coverys, a malpractice insurer, the top causes of medical malpractice claims were as follows:
Errors made during patient diagnosis
Surgical errors
Poor medical case management
Errors in prescribing or administering medication
Digging deeper into the above-referenced causes, the most common diagnostic-related claims involved cancer, to no surprise. Breaking down the specifics in diagnostic-related claims shows that communication and documentation, as well as administration and electronic health record issues, made up about 22% of diagnostic-related claims. This shows that communication and documentation-related problems lead to a significant number of medical malpractice claims.
Surgical mistakes involved errors such as the wrong body part operated on, the wrong organ removed, and a foreign object left inside a patient. As you can see, a lot of the top causes of medical malpractice claims can be avoided with better documentation and communication.
Providers can avoid a malpractice claim with better communication with the patient
A common theme in medical malpractice claims, as mentioned above, is a breakdown in communication. Several studies from CRICO Strategies have shown that patient communication failures or generally bad patient rapport are the causes of a significant percentage of medical malpractice claims.
CRICO Strategies — a division of the risk management foundation of the Harvard medical institutions — uses data to reduce medical errors and protect providers and promote patient safety. Specifically, one particular study showed that between 2009 and 2013, of 23,000 medical malpractice claims, 30% were the result of communication failures.
Communication issues can be based on face-to-face communication, electronic record keeping, or notations. Based on these studies, communication is key to avoiding malpractice claims.
Listen well, but set realistic expectations
Of course, a healthcare provider needs to listen to a patient's complaints and symptoms. It is also important for the healthcare provider to hear a patient’s goals and expectations and ask: Are these expectations reasonable? If not, it is the healthcare provider's prerogative and duty to temper those expectations.
If someone wants to be "cured" from cancer, providers know better than to let the patient expect a cure. But what if the patient wants a back surgery to restore them to full range of motion and be free of pain? This may not be a reasonable expectation even if surgery is successful; therefore, this needs to be explained to the patient.
A patient's unrealistic expectation for medical treatment in itself is not actionable as a medical malpractice claim. However, if the patient feels their healthcare provider did not explain a procedure’s risks and outcomes adequately, the patient can then claim the healthcare provider failed to get informed consent on a procedure or treatment plan. Failure here can lead to actionable medical malpractice claims.
Explain the risks clearly
A healthcare provider needs to fully explain the risks associated with a procedure or treatment method. This means detailing the likely risks as well as the very unlikely risks associated with a procedure, treatment, or medication. This is important for two reasons: One, you want the patient to be fully aware of the risks before deciding to proceed on a given course of care. And two, this is to protect the healthcare provider from potential accusations down the road that the patient was not aware of side effects or risks associated with the care plan.
Follow up
Trust is the bedrock of the patient and provider relationship. Continued communication even after treatments is essential to maintaining that trust.
Specifically, after a medication prescription, surgery, or treatment, it helps for all parties involved to engage in follow-up communication. If the patient is frustrated with the outcome of treatment or lack of efficacy from medication, the healthcare provider should listen and try to find any solutions.
The health provider’s documentation confirms their course of conduct with the patient
The healthcare provider has to make sure they thoroughly review the patient's medical history. Specifically, review the patient's conditions, prior surgeries, treatments, and complaints. This review lets a healthcare provider get a complete view of a patient's medical history, which in turn helps increase the chances of effective treatment and desired outcomes.
What’s more, the review helps the healthcare provider go into initial visits or consults prepared and better equipped to engage in a productive discussion with the patient. The healthcare provider should note in the patient's record that prior medical records were actually reviewed.
Healthcare providers should also make sure to document all communications with the patient. This would include their discussions of conditions, symptoms, risks of procedures, and treatment plans. For example, if the patient wants to undergo a set of epidural injections for relief of back pain seeking full pain relief, it is best for the healthcare provider to set realistic expectations in the record.
Providers should document what the patient's goals with treatment were in detail. The provider should note that they explained the injections may provide temporary relief or no relief at all. Furthermore, the healthcare providers should note any other options that may have been discussed with the patient but that the patient declined, including medication, physical therapy, and/or surgery.
In addition, healthcare providers should always get a signed, written informed consent form from patients that documents not only the risks of the procedure but also what was discussed in particular. This demonstrates the patient was fully informed and ready to proceed with the selected treatment or plan of care. This is an essential document in the medical record, especially for surgeries.
Provider communication is a best practice
The term “best practice” is a professional procedure that is most accepted or effective to ensure best results. A healthcare best practice should simply be documentation of the provider-patient communication.
Goals, expectations, and risks should be fully explored in communication between healthcare providers and their patients. The healthcare provider needs to clearly communicate every patient’s unique treatment plan not only to the patient but also to all involved healthcare staff, either face to face or in writing. Overcommunication — whether it be in person or via the medical record — is better than lack of communication.
The bottom line
Good provider and patient discussions and documentation can help reduce the chance of adverse patient outcomes and malpractice claims. Making these practices a habit as a student reduces your risk of malpractice claims as you progress in your career.
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