No one likes getting sued. Especially in the health and human services field, the long and tedious process can cause the prosecuting party – generally a patient or a patient’s family – and the defense – the care provider – much stress and anxiety. Even when care exceeds professional standards and is given in a high-quality facility with excellent regulatory scores, providers are still at risk of being sued.
How can this be?
Most claims come from patients, not from regulators. So, despite adherence to regulations, risk exposure still exists. The majority of claims are issued when a patient or a patient’s family feels that they have been wronged by something the provider did. In order to solve for this, disclaimers can be given at various touchpoints in an effort to extinguish unrealistic expectations and ultimately reduce claims.
Reducing the Likelihood of Malpractice Claims
Before these disclaimers are even issued, for healthcare providers, the first step in mitigating potential litigation involves maintaining a high standard of care to ensure excellent regulatory survey outcomes. For instance, in an effort to provide top-notch care, physicians will often insist on additional testing, higher quality imaging and extra procedures in the hopes that these added precautions will reduce liability. According to a Gallup study, one in four healthcare dollars is spent on this type of “defensive medicine.”
While these precautions can certainly help to reduce exposures and the likelihood of a lawsuit, they cannot completely eliminate the risk of a provider being sued by a patient or his or her family. Rather than the overall quality of the health services provided, the most common factor impacting whether or not a provider is sued for malpractice is the family’s perception of whether or not the provider genuinely cared about the patient. Therefore, these types of medical malpractice claims can often result from a breakdown in patient-caregiver communication.
Establishing open lines of communication can be as simple as maintaining a positive relationship with a patient and his or her family. Over the years, studies have shown that physicians are sued less often when they spend more time educating patients about their options while also encouraging patients to openly express their own opinions. In a recent study by CRICO Strategies, communication was noted as a factor in 30 percent of 23,657 malpractice cases filed from 2009 through 2013, resulting in $1.7 billion in total incurred losses.
There are significant differences in the communication habits of physicians who face malpractice claims and those who don’t. An often-cited study from the Journal of the American Medical Association notes that physicians with improved communications skills are more likely to educate patients on what to expect, use laughter and humor more frequently and encourage open dialogue.
For healthcare providers, one of the most critical factors in ensuring strong communication with patients is obtaining adequate informed consent. Informed consent should be a two-way conversation, not a lecture given by the provider. For example, in senior care, it is imperative that the caregiver or service provider discusses with the patient their conditions including chronic diseases along with care concerns and the reality of decline. Throughout this conversation, the caregiver should review the management plan – being clear that there may not be a cure – along with available alternatives.
Also, because communication has been explicitly linked to reducing the likelihood of a malpractice claim, it is important to document all verbal communication. For example, the rationale behind certain decisions regarding care can often go undocumented because it was a conversation had between the provider and the patient, not a written plan. But in reality, this should actually be a crucial part of the record. The record should contain a description of all information that factored into treatment decisions and care plans, such as physical findings and lab results. Additionally, because patients often have interdisciplinary teams providing care, it is essential that notes regarding findings and recommendations can be read. According to a recent survey, legibility in patient charts can range from as low as 13 percent to as high as 80 percent. High legibility can decrease the chances of medication or medical errors.
Regardless of the standard of care provided, it is not surprising that the risk of litigation significantly increases when a patient or his or her family feels like a physician or caregiver did not take the time to fully understand his or her individual situation and needs. Health and human service providers should work with their insurance broker to not only ensure that they are providing high quality services and adhering to regulatory standards, but are following best practices to communicate with patients.
If a situation does occur that you believe could result in litigation, it is important to contact your insurance provider to alert them of the potential claim. This will help to guarantee that the right coverage is available if the lawsuit is filed and allows your insurer to quickly retain an attorney to assist you with the claim.
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