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Point of view: An interdisciplinary response to themedical malpractice crisis
POINT OF VIEW: AN INTERDISCIPLINARY RESPONSE TO THE MEDICAL MALPRACTICE CRISIS*
We have a malpractice crisis in the United States that concerns us all and represents the tip of the iceberg of social change. The causes of this malpractice crisis include among others: litigious patients, unrealistic public expectations of medical outcomes, weakening of the doctor-patient trust, depersonalization resulting from team and technologic medicine, publicity regarding bad medicine and monster doctors, and negligent errors in medical practice. Law suits can result from disputes fuelled by three factors: (1) a medical grievance or unresolved misunderstanding with a patient, or (2) an underlying pattern of professional behavior which can be characterized as an "accident waiting to happen," and (3) an inciting spark, the medical injury, poor result, or accident. From the point of view of malpractice prevention, it helps to know about lawyers, the law, and the legal system. It is far more useful however, to know ourselves, our medical habits, and our patients. As individual physicians, we can do a great deal to avoid litigation, and actually practice better medicine by (1) minimizing patient misunderstandings, and (2) by examining and overcoming our own poor habits. I shall address myself to a collection of professional attitudes and habits which in part distinguish the seldom-sued doctor from the oft-sued doctor. These l0 precepts, guidelines, or commandments, collected from many sources, answer the frequently posed question on how to stay out of medical-legal trouble. 1. Listen well to patients, their families, staff, and colleagues. 2. Keep impeccable medical records. 3. P r a c t i c e risk m a n a g e m e n t and consult promptly in regard to troublesome incidents. 4. Understand and practice informed consent. 5. Continue your medical education. 6. Join the bioethies movement. 7. Get involved as an advocate for medical causes and health care. Reprinted from The Pharos o] Alpha and Omega Alpha, 53: 1416 (1990), with permissionof Alpha OmegaAlpha Honor Medical Society.
378
8. Understand and use sound business practices. 9. Be eompassionate. 10. Be counted among those willing to censure unsound medical practices and practitioners. Comments on Precepts 1. Listening is a fine art. Most of us are better at talking than we are at listening. Excellent rapport, however, is the first line of defense against the misunderstandings that predispose to lawsuits. Those sued the least have the best rapport with their patients. Good listening is fundamental to lawsuit prevention; it lays the basis for trust and a solid doctor2 patient relationship. Physicians should learn to listen for: (a) what was said; (b) what was not said; (e) what the patient wanted to say but could not; and (d) what the pa= tient really meant to say. Patients under stress may not hear or understand. If a patient is under stress, the physician must make sure that a responsible member of the family group hears and understands the message. Reeording such eonversations on the chart can be valid and inexpen sive defensive medieine. Good patient rapport requires that the physician's staff also be sensitive to patient's questions and coneerns. The secretary or nurse may be the first to alert the physician to misunderstandings and forestall a breakdown in rapport and thus prevent a lawsuit. It is especially important for a physician to maintain rapport after things go wrong. Keep listening and express your instinetive sympathy. Do not abandon the patient by avoidanee. Do not hesitate to apologize. This can be voiced without confessing to a legal misdeed. An apology, offered promptly, often reduces the tension and tendency to litigation. An apology offered late can be interpreted as an admission of fault or guilt. 2. Impeeeable medical records are the sine qua non of good practice. Be a good doctor and let your records reflect it! Record each essential element of the complete workup, the negative findings, the alternative differential diagnoses, the rationale for choosing the therapeutic option, the substance of the informed consent.
UROLOGY / OCTOBER1990 / VOLUMEXXXVI, NUMBER4
A cynical saying in the law is that if you didn't record it, you didn't do it. Medical records can become legal documents. t t e n e e , in a legal proceeding, any erasure, altera~ tion, illegibility, abbreviation, adverse remark, or ::unfortunate wording can be turned against a physic i a n . The legally appropriate way to make a correct i o n is by adding information in context and eonti:: nuity, dating and initialing it. Do not black out or ~:delete any existing entries and do not destroy a reco r d . Legally, altering the records shifts the burden of !proof of negligence so that the physician will be presumed guilty rather than innocent until proven otherwise. 3. The most vulnerable area of practice is in the hospital. This is where 80 percent of all lawsuits against doctors originate. Hospitals must be made ;ale so that public confidence in them is restored. ~Iospital functions must be reviewed from the top to !he bottom. Risk management is the management System designed to meet this challenge. This requires new staff attitudes, new informational data bases, and a system of monitoring and feedback. If something goes wrong, the physician should ;eek advice from more experienced colleagues and report it promptly to the hospital risk manager, the chief of staff, possibly even the public relations officer, the insurance company, and the lawyer. Every adverse incident should be described factually and honestly in the chart, with appropriate diagrams, and prudent impounding of any devices involved. Documentation should be eontempora:neous and dated so that questions arising a year or two later will have been anticipated and answered. this is good defensive medical practice and medical ~dueation, and improves quality control in the hospital. : 4. More than two decades after the enunciation o f the legal doctrine of informed consent, and its statutory adoption in most states, this concept is still ~largely misunderstood. This is because its basic philosophy is still not grasped. The basic philosophy of informed consent states t h a t it is the patient who is in charge and that it is :the doctor who is the servant. Today's physician has !the obligation to educate the patient, but the patient i:has the right to choose or refuse the treatment. Med: ieal paternalism is no longer an accepted doctrine. How much do patients need to know in order to b e adequately able to make choices? The patient i, should know everything needed to decide whether or not to undergo therapy, surgery, a diagnostic proeedure, or to refuse a diagnostic procedure. The patient must know the diagnosis, each therapeutic op!~'/hon, the foreseeable outcomes, risks, and benefits of !
il
all the options, including the option of doing nothing. Informed consent can only be practiced as an ongoing process between physician and patient. It is not just a signed document. The patient must have a good idea of what he is going to experience and enter into it of his own free will and choice. This puts the patient into the legal position of assuming part of the risk and making the final decisions. 5. The physician must avoid professional obsolescence. Lawsuits have been filed on the grounds of "failure to keep abreast." With so many continuing opportunities currently available, no physician has an excuse for not keeping up with current medical advances. 6. Join and support your bioethies committee. It is better to hear a nurse's anger or angst, a family menber's disagreement, or a eolleague's misgivings prospectively in an ethical forum than retrospectively in a legal forum. No one wants to play God nor do we want to shun all responsibility. The life and death decisions, the right to die, the "no code" orders, and the right to terminate therapy are frequent questions which stretch our competence. A bioethical deliberation should include the patient and/or his representative, the family, community representative, religious representatives, the doctor, lawyer, and hospital administrator. In hospitals, the Bioethical Committee should function as a consultation service. Over time, we can expect some of the bioethieal guidelines to be translated into legal standards and statutes by state legislatures. After a decade of public discussion involving doctors, lawyers, ministers, and the laity, the right to die statute was passed in Missouri in 1985. Now physicians in Missouri can write "do not resuscitate" orders without fear of criminal prosecution. 7. Today, physicians must get involved in society's debates. Our best stance is to be a health and patient advocate. As individual physicians we can complain about lawyers, insurance rates, regulations, or injustice, but we remain powerless to change the situation until we unite. When physicians do exert leadership, they have proven to be surprisingly powerful in bringing about changes. We physicians have entered the public and political arena in too few numbers and too late. Many mechanisms for change exist. The American Medical Association, specialty societies, and local medical societies all have legislative action committees. More of us must get involved in coalitions to debate the positions with which we disagree. We must get behind those movements which improve health care access or meet other health needs of patients and the public.
O oLocy , OCTOBER 1990 / VOLUMEXXXVI, NUMBER4
379
8. Economics and business have been thrust upon the medical profession. Rather than being tempted by seductive joint ventures or employment contracts, today's young physician must look instead to sound marketing and business practices. The physician can learn from the business community how to aehieve success by hard work, going where one is needed, being first with the best product, and striving for consumer satisfaction. The physician must be available, affable, and able, or, in another mnemonic, accessible, affordable, accountable, and acceptable. This is not to say that there are not unsolved quandaries in the business of medicine, Which advertising is tasteless? Which contracts put the physician into a bind of conflicting interests? Which regulations and H M O c o n t r a c t s i n t e r f e r e w i t h professional freedom of decision? Other business considerations include antitrust and hospital issues, Medicare fraud, and many other activities which require legal guidance. For these matters, the physician would be well advised to consult his personal lawyer. 9. Be compassionate and merciful. This needs little or no discussion, just repetition. A brusque or uncaring response to competing demands for attention may hurt a vulnerable patient. Conversely, compassion may heal a lot of hurt and lead to patient foregiveness. 10. The 1980 American Medical Association Code of Ethics directs physicians to "expose those physicians deficient in character, competence or honesty." We physicians have often blinded ourselves to the need to police our profession. We can no longer blame others for not cleaning our house. Physicians must take the initiative. Health economists and lawyers have told us that a major factor in the current professional liability crisis is the perceived breach of faith between doctors and patients in the failure of the medical profession to police itself. Among other steps, licensing boards must not let the physician's property rights to practice intimidate them when the public health is jeopardized by low quality, obsolescent, fraudulent, venal, or unnecessarily risky medical practices. Due process rights must be given their legal respect, but not used as a delaying tactic. With experience, guidance, and forensic dialogue, each specialty could promulgate standards of care for its expert witnesses.
380
Anesthesiologists in Boston and St. Louis, have set specific standards for minimal patient monitoring during anesthesia as a means of eliminating their: most frequently sued upon errors. ~,2By writing their own practice standards, these anesthesiologists have set legal standards for practice which have also served for courtroom use. This preempted the vagaries of the layman, the lawyer, and the unqualified expert. Coineidentally, their professional liability rates have started to fall. We physicians need to balance the loyalty we owe colleagues with the loyalty we owe to patients. No longer can we see no evil, hear no evil, and speak n o evil. The fiduciary relationship to our patients demands that we be honest and forthright. If called on in the appropriate ease, a physician must be willing to stand up and be counted among those who will expose and publicly oppose poor medical practice. When we physicians dearly set personal interest aside and dispel some public fears and misperceptions, the public's love affair and high esteem o f physicians will be restored. Conclusions These ten precepts are separate stations on the way to evolving a more adaptive attitude to t h e practice climate of the 1990s. Health law constitutes the channeled efforts of the people toward achieving improved health care f o r all. The public, through government, has taken over the control of medicine; it has even renamed it "health care." Our duty and challenge is to respond constructively. These ten precepts summarize the major lessons drawn from the medical-legal mistakes of the past twenty years. Hopefully, they may serve as a modern "guide for the perplexed ''3 to help us retain basic principles through the current health care storm and to adapt to our changing world. Saul Boyarsky, M.D., J.D. 45 Portland P l a c e St. Louis, Missouri 63108 References 1. BoyarskyS: Avoidingexpert witness bias, J Forensic Sei 34: 1259 0989).
2. Matjasko MJ: Contempo 89: Anesthesiology, JAMA g61: 2826 (1989). 3. Maimonides M: The Guide for the Perplexed, ed 2, Friedlfinder M, New York, Dover Publications, 1956.
UROLOGY / OCTOBEI/1990 / VOLUMEXXXVI, NUMBER4
We have a malpractice crisis in the United States that concerns us all and represents the tip of the iceberg of social change. The causes of this malpractice crisis include among others: litigious patients, unrealistic public expectations of medical outcomes, weakening of the doctor-patient trust, depersonalization resulting from team and technologic medicine, publicity regarding bad medicine and monster doctors, and negligent errors in medical practice. Law suits can result from disputes fuelled by three factors: (1) a medical grievance or unresolved misunderstanding with a patient, or (2) an underlying pattern of professional behavior which can be characterized as an "accident waiting to happen," and (3) an inciting spark, the medical injury, poor result, or accident. From the point of view of malpractice prevention, it helps to know about lawyers, the law, and the legal system. It is far more useful however, to know ourselves, our medical habits, and our patients. As individual physicians, we can do a great deal to avoid litigation, and actually practice better medicine by (1) minimizing patient misunderstandings, and (2) by examining and overcoming our own poor habits. I shall address myself to a collection of professional attitudes and habits which in part distinguish the seldom-sued doctor from the oft-sued doctor. These l0 precepts, guidelines, or commandments, collected from many sources, answer the frequently posed question on how to stay out of medical-legal trouble. 1. Listen well to patients, their families, staff, and colleagues. 2. Keep impeccable medical records. 3. P r a c t i c e risk m a n a g e m e n t and consult promptly in regard to troublesome incidents. 4. Understand and practice informed consent. 5. Continue your medical education. 6. Join the bioethies movement. 7. Get involved as an advocate for medical causes and health care. Reprinted from The Pharos o] Alpha and Omega Alpha, 53: 1416 (1990), with permissionof Alpha OmegaAlpha Honor Medical Society.
378
8. Understand and use sound business practices. 9. Be eompassionate. 10. Be counted among those willing to censure unsound medical practices and practitioners. Comments on Precepts 1. Listening is a fine art. Most of us are better at talking than we are at listening. Excellent rapport, however, is the first line of defense against the misunderstandings that predispose to lawsuits. Those sued the least have the best rapport with their patients. Good listening is fundamental to lawsuit prevention; it lays the basis for trust and a solid doctor2 patient relationship. Physicians should learn to listen for: (a) what was said; (b) what was not said; (e) what the patient wanted to say but could not; and (d) what the pa= tient really meant to say. Patients under stress may not hear or understand. If a patient is under stress, the physician must make sure that a responsible member of the family group hears and understands the message. Reeording such eonversations on the chart can be valid and inexpen sive defensive medieine. Good patient rapport requires that the physician's staff also be sensitive to patient's questions and coneerns. The secretary or nurse may be the first to alert the physician to misunderstandings and forestall a breakdown in rapport and thus prevent a lawsuit. It is especially important for a physician to maintain rapport after things go wrong. Keep listening and express your instinetive sympathy. Do not abandon the patient by avoidanee. Do not hesitate to apologize. This can be voiced without confessing to a legal misdeed. An apology, offered promptly, often reduces the tension and tendency to litigation. An apology offered late can be interpreted as an admission of fault or guilt. 2. Impeeeable medical records are the sine qua non of good practice. Be a good doctor and let your records reflect it! Record each essential element of the complete workup, the negative findings, the alternative differential diagnoses, the rationale for choosing the therapeutic option, the substance of the informed consent.
UROLOGY / OCTOBER1990 / VOLUMEXXXVI, NUMBER4
A cynical saying in the law is that if you didn't record it, you didn't do it. Medical records can become legal documents. t t e n e e , in a legal proceeding, any erasure, altera~ tion, illegibility, abbreviation, adverse remark, or ::unfortunate wording can be turned against a physic i a n . The legally appropriate way to make a correct i o n is by adding information in context and eonti:: nuity, dating and initialing it. Do not black out or ~:delete any existing entries and do not destroy a reco r d . Legally, altering the records shifts the burden of !proof of negligence so that the physician will be presumed guilty rather than innocent until proven otherwise. 3. The most vulnerable area of practice is in the hospital. This is where 80 percent of all lawsuits against doctors originate. Hospitals must be made ;ale so that public confidence in them is restored. ~Iospital functions must be reviewed from the top to !he bottom. Risk management is the management System designed to meet this challenge. This requires new staff attitudes, new informational data bases, and a system of monitoring and feedback. If something goes wrong, the physician should ;eek advice from more experienced colleagues and report it promptly to the hospital risk manager, the chief of staff, possibly even the public relations officer, the insurance company, and the lawyer. Every adverse incident should be described factually and honestly in the chart, with appropriate diagrams, and prudent impounding of any devices involved. Documentation should be eontempora:neous and dated so that questions arising a year or two later will have been anticipated and answered. this is good defensive medical practice and medical ~dueation, and improves quality control in the hospital. : 4. More than two decades after the enunciation o f the legal doctrine of informed consent, and its statutory adoption in most states, this concept is still ~largely misunderstood. This is because its basic philosophy is still not grasped. The basic philosophy of informed consent states t h a t it is the patient who is in charge and that it is :the doctor who is the servant. Today's physician has !the obligation to educate the patient, but the patient i:has the right to choose or refuse the treatment. Med: ieal paternalism is no longer an accepted doctrine. How much do patients need to know in order to b e adequately able to make choices? The patient i, should know everything needed to decide whether or not to undergo therapy, surgery, a diagnostic proeedure, or to refuse a diagnostic procedure. The patient must know the diagnosis, each therapeutic op!~'/hon, the foreseeable outcomes, risks, and benefits of !
il
all the options, including the option of doing nothing. Informed consent can only be practiced as an ongoing process between physician and patient. It is not just a signed document. The patient must have a good idea of what he is going to experience and enter into it of his own free will and choice. This puts the patient into the legal position of assuming part of the risk and making the final decisions. 5. The physician must avoid professional obsolescence. Lawsuits have been filed on the grounds of "failure to keep abreast." With so many continuing opportunities currently available, no physician has an excuse for not keeping up with current medical advances. 6. Join and support your bioethies committee. It is better to hear a nurse's anger or angst, a family menber's disagreement, or a eolleague's misgivings prospectively in an ethical forum than retrospectively in a legal forum. No one wants to play God nor do we want to shun all responsibility. The life and death decisions, the right to die, the "no code" orders, and the right to terminate therapy are frequent questions which stretch our competence. A bioethical deliberation should include the patient and/or his representative, the family, community representative, religious representatives, the doctor, lawyer, and hospital administrator. In hospitals, the Bioethical Committee should function as a consultation service. Over time, we can expect some of the bioethieal guidelines to be translated into legal standards and statutes by state legislatures. After a decade of public discussion involving doctors, lawyers, ministers, and the laity, the right to die statute was passed in Missouri in 1985. Now physicians in Missouri can write "do not resuscitate" orders without fear of criminal prosecution. 7. Today, physicians must get involved in society's debates. Our best stance is to be a health and patient advocate. As individual physicians we can complain about lawyers, insurance rates, regulations, or injustice, but we remain powerless to change the situation until we unite. When physicians do exert leadership, they have proven to be surprisingly powerful in bringing about changes. We physicians have entered the public and political arena in too few numbers and too late. Many mechanisms for change exist. The American Medical Association, specialty societies, and local medical societies all have legislative action committees. More of us must get involved in coalitions to debate the positions with which we disagree. We must get behind those movements which improve health care access or meet other health needs of patients and the public.
O oLocy , OCTOBER 1990 / VOLUMEXXXVI, NUMBER4
379
8. Economics and business have been thrust upon the medical profession. Rather than being tempted by seductive joint ventures or employment contracts, today's young physician must look instead to sound marketing and business practices. The physician can learn from the business community how to aehieve success by hard work, going where one is needed, being first with the best product, and striving for consumer satisfaction. The physician must be available, affable, and able, or, in another mnemonic, accessible, affordable, accountable, and acceptable. This is not to say that there are not unsolved quandaries in the business of medicine, Which advertising is tasteless? Which contracts put the physician into a bind of conflicting interests? Which regulations and H M O c o n t r a c t s i n t e r f e r e w i t h professional freedom of decision? Other business considerations include antitrust and hospital issues, Medicare fraud, and many other activities which require legal guidance. For these matters, the physician would be well advised to consult his personal lawyer. 9. Be compassionate and merciful. This needs little or no discussion, just repetition. A brusque or uncaring response to competing demands for attention may hurt a vulnerable patient. Conversely, compassion may heal a lot of hurt and lead to patient foregiveness. 10. The 1980 American Medical Association Code of Ethics directs physicians to "expose those physicians deficient in character, competence or honesty." We physicians have often blinded ourselves to the need to police our profession. We can no longer blame others for not cleaning our house. Physicians must take the initiative. Health economists and lawyers have told us that a major factor in the current professional liability crisis is the perceived breach of faith between doctors and patients in the failure of the medical profession to police itself. Among other steps, licensing boards must not let the physician's property rights to practice intimidate them when the public health is jeopardized by low quality, obsolescent, fraudulent, venal, or unnecessarily risky medical practices. Due process rights must be given their legal respect, but not used as a delaying tactic. With experience, guidance, and forensic dialogue, each specialty could promulgate standards of care for its expert witnesses.
380
Anesthesiologists in Boston and St. Louis, have set specific standards for minimal patient monitoring during anesthesia as a means of eliminating their: most frequently sued upon errors. ~,2By writing their own practice standards, these anesthesiologists have set legal standards for practice which have also served for courtroom use. This preempted the vagaries of the layman, the lawyer, and the unqualified expert. Coineidentally, their professional liability rates have started to fall. We physicians need to balance the loyalty we owe colleagues with the loyalty we owe to patients. No longer can we see no evil, hear no evil, and speak n o evil. The fiduciary relationship to our patients demands that we be honest and forthright. If called on in the appropriate ease, a physician must be willing to stand up and be counted among those who will expose and publicly oppose poor medical practice. When we physicians dearly set personal interest aside and dispel some public fears and misperceptions, the public's love affair and high esteem o f physicians will be restored. Conclusions These ten precepts are separate stations on the way to evolving a more adaptive attitude to t h e practice climate of the 1990s. Health law constitutes the channeled efforts of the people toward achieving improved health care f o r all. The public, through government, has taken over the control of medicine; it has even renamed it "health care." Our duty and challenge is to respond constructively. These ten precepts summarize the major lessons drawn from the medical-legal mistakes of the past twenty years. Hopefully, they may serve as a modern "guide for the perplexed ''3 to help us retain basic principles through the current health care storm and to adapt to our changing world. Saul Boyarsky, M.D., J.D. 45 Portland P l a c e St. Louis, Missouri 63108 References 1. BoyarskyS: Avoidingexpert witness bias, J Forensic Sei 34: 1259 0989).
2. Matjasko MJ: Contempo 89: Anesthesiology, JAMA g61: 2826 (1989). 3. Maimonides M: The Guide for the Perplexed, ed 2, Friedlfinder M, New York, Dover Publications, 1956.
UROLOGY / OCTOBEI/1990 / VOLUMEXXXVI, NUMBER4