All healthcare providers strive for excellent clinical care based on their education, training, and experience. But even the most diligent practitioner could still find themselves defending against a malpractice claim. In fact, when Berxi was talking to recent dental school graduates, one said, “We’ve been told a lawsuit is not an ‘if’ but a ‘when’ situation, so we should always plan and practice with the idea that we might get sued in mind.”
And while preparing for the worst might seem overly cautious, embracing some common-sense strategies now can reduce the risk of errors that could lead to claims, and help you defend yourself against a malpractice lawsuit.
Malpractice claims are a significant risk for healthcare providers. The majority of malpractice claims are made against physicians, according to the National Practitioner Data Bank. Between 2010 and 2020, more than 172,000 claims against physicians were reported. That’s a significant number, and other providers face similar risks. In fact, during that same time period, dentists and dental hygienists faced nearly 36,000 claims, while there were 6,500 claims against physician assistants. Nursing professionals as a whole faced over 266,000 claims. Of these, registered nurses led the way with over 164,000 claims, followed by licensed practical and vocational nurses (nearly 95,000 claims), nursing aides and other para-professional nurses (more than 62,000 claims). Advanced practice nurses, such as CRNAs, nurse practitioners, nurse midwives, and other clinical nurse specialists faced nearly 7,000 claims.
Being a defendant in a lawsuit is stressful and takes time away from a healthcare provider’s practice. While providers work to maintain a standard of clinical care that will help reduce the risk of malpractice claims, the clinical side is just one part of it. As a lawyer who regularly defends healthcare providers, I’ve found that these five strategies often make the difference for a successful defense when a claim is made.
Strategy #1: Communicate Clearly & Encourage Questions
Patients with open lines of communication are often more likely to disclose information — even if they think it’s not relevant to their diagnosis and treatment plan. Being comfortable with asking questions also allows patients to seek clarifying information. (How many times have you left a room and realized you had a completely different take-away than the person next to you? This happens in medicine too.) Even the most educated and talented providers are at risk of being misunderstood.
Clear communication isn’t limited to what you tell your patients. It also includes how you listen to what the patient is telling you, as the provider. Avoid dismissing (or appearing to dismiss) your patient’s concerns. Provide clear answers to their questions and set realistic expectations. Always remain calm when a patient or their family member gets upset and try your best to identify the concern and address it. Providers should always avoid interactions with patients that could make the patient feel devalued or misunderstood, which could lead to them being misinformed.
Keep in mind that your patients will communicate with other people on your team, as well. Every interaction a patient has at your practice should affirm their decision that they’ve chosen a competent and capable provider.
Strategy #2: Follow Proper Documentation Procedures
You’ll want to write detailed notes both for your patients and your own records. So when possible, leave your patients with instructions and any specifics they could process on their own time. You’ll also need to document your entire interaction — including the written details you gave the patient — in your own notes.
It might seem impractical to write everything that goes on between you and your patients (see these tips for writing great nurses notes), but clear documentation should, at minimum, include the following items. This is otherwise known as “a lawyer tells you what to include in your patient notes”:
- Your signature and the date and time of every entry
- Legible penmanship. Weeks, months, and even years later, you want to be able to read your own handwriting.
- The identification of anyone who was part of a conversation you’re recounting. This will help identify witnesses who could provide more detail, if needed.
- All findings, advice, instructions, and decisions about any significant issue. This should include a discussion of why you made the decision. Healthcare providers often have a broad range of treatment choices, and the “why” in your records makes it easier for a jury to understand your thoughtful and informed decision. Be sure to document things like the patient’s relevant prior medical history; instructions given to the patient and any response received; or informed consent and the explanation provided about the risk of a procedure and likely outcomes.
- Your anticipated follow-up, if any
If you’re in doubt about whether something is important enough to document, you should document it. In a lawsuit, a provider’s records are used to prove what did or did not happen. Documenting helps avoid opportunities for the argument that something that isn’t in your records didn’t happen. If you want more documentation tips, check out our article, "Nurse Charting 101." article.
Strategy #3: Check Your Work
While good documentation will help you if a malpractice claim is made, it might not be enough to simply point to your records and say you told a patient to do something like getting a test or visiting another provider. You also should consider regularly reviewing patient charts to ensure tests, examinations, and referrals have been followed up on appropriately. Some electronic record systems allow providers to set notifications or triggers if an expected follow-up has not been completed. If your system doesn’t have this, assign someone to this task so follow-ups don’t fall through the cracks.
Putting a system in place for follow-ups can help avoid a lawsuit about a delayed diagnosis. If there is a claim made, you’ll be more likely to have the documentation necessary to help defend yourself and your practice.
Strategy #4: Follow Your Organization's Policies & Procedures to a “T”
Policies and procedures serve to reduce the risks of errors that lead to malpractice claims. If you’re a defendant in a lawsuit and you can show you have adequate policies and procedures in place, that could reduce the likelihood that their lawsuit will be successful.
While policies and procedures regarding patient care will be tailored to your practice, every practice should have the following:
- Policies related to employees: Set guidelines related to inter-office communications and how your staff should communicate with patients. You may also consider addressing expectations for teamwork, attitude, and office etiquette.
- Policies related to medical records: These policies should include training about proper documentation to reduce the risk of an error. If your practice is migrating from paper to electronic records, you should have a policy about how to handle this and what to do if a patient has both paper and electronic records.
- Policies related to staff/clinician roles and responsibilities: Define and describe the roles and responsibilities of each member of your practice. Identify tasks that each role is responsible for completing. For clinicians and other healthcare providers, this should include the care each is permitted to provide, the types of patients each is permitted to see, and what (if any) supervision is required.
Consider having “tip” or “cheat” sheets for staff to reference to identify the key elements of the policies and procedures. It’s important to include the policies and procedures in new employee orientation, as well as to have periodic refresher training. Don’t forget to update the policies if you find they’re not adequate or a standard has changed.
Strategy #5: Swallow Your Pride & Don’t Take on Too Much
Like it or not, despite your education and training, there are things you don’t know — and even more things you don’t know that you don’t know. It’s also unrealistic for anyone to expect you to know how to treat every symptom of every patient who comes to you for care. As a healthcare provider, you must accept that you won’t have all the answers all the time.
Never decide to accept a patient or begin a course of treatment without having sufficient knowledge or skill to comply with your standard of care. Consulting with another provider or referring a patient to another provider should not be a last resort. This may be (very) frustrating to your patient, but asking another practitioner within your team to step in — or providing an early referral ultimately shows you’re acting in the patient’s best interest.
Beyond developing an understanding of when to accept patients, you also should have an understanding of your capacity to provide care. Taking on too much could lead to poor results. The number of hours in a day are limited. A busy practice is great, but if patient care suffers, you’ve unnecessarily created risk for malpractice claims.
Learn to recognize your staff’s strengths and weaknesses, too. This will help you delegate tasks to staff members who are capable of performing. Always keep in mind that you may be held responsible for your staff member’s conduct.
The More You Do, the Lower the Risk
Malpractice claims may feel inevitable, but they’re not. If you incorporate these strategies, you may help to reduce claims. Even if they do not, and a claim is filed against you (or you get wrapped up in a claim against your team), these strategies will have you well on your way to helping your attorney prepare your defense. As a lawyer who regularly defends healthcare providers, I know that facing a claim can be stressful. Incorporating these strategies will help you feel a greater sense of control and will help me (and any other lawyer representing you) to defend you against the claim.