The Surprise Malpractice Suit: 'Why Did You Sue Me?'

Mark E. Crane


February 18, 2011

In This Article

When Patients Are "Lost" in Follow-up

A physician's surprise at being sued may be genuine but could have been avoided with better protocols. "Some doctors fail to follow the patient," said James Lewis Griffith, Sr., a veteran Philadelphia, Pennsylvania, malpractice attorney. "They pay cursory attention to postprocedure complaints. The patient gets annoyed and changes doctors. When the injury is disclosed months or a year later, he sues the first doctor."

To avoid this, doctors should make sure that their follow-up for procedures lasts beyond the first few weeks. Make it part of the staff duties to continue to check with patients for a longer period of time.

When more than 1 doctor is involved in a patient's treatment, false assumptions and lack of communication can cause lawsuits. Two doctors each assume that the other one is going to do something, but it doesn't get done. The patient suffers an injury and sues. Both doctors may be surprised, but in fact, both may be negligent.

"A woman in her early 60s has a mammogram and a suspicious calcification is found," says Armand Leone, a radiologist-plaintiff's attorney in Glen Rock, New Jersey. "The radiologist's report said further imaging is suggested. The primary physician initialed the report and it was filed away.

"He sees the patient 3 months later for a minor foot problem," says Leone. "The mammogram isn't mentioned. The patient moves to another state. About a year later, she has another mammogram and there's a large tumor in her breast. She sued her first primary doctor."

If you order a test and it's anything but normal, you must follow up. The primary doctor assumed that the imaging center, located in his office building, would contact the patient about further testing. No one did. All the doctor had to do when he saw the patient for the foot problem was say, "Mrs. Smith, I saw the mammogram report. Did you get the additional imaging?"

The growth in the number of hospitalists makes communication between physicians more crucial than ever, says Suzanne Fidler, an internist-attorney in Newport Beach, California. "There could be a reaction to medication that may not get communicated in the medical record or isn't brought to the attention of the primary doctor.

Pending tests are another problem. The patient may be discharged, but it can take a few days for microbiology to report findings. So the culture comes back positive. The hospitalist isn't taking care of the patient anymore. How does the information get back to the primary doctor? It's easy for an abnormality to slip through the cracks."

If you work with hospitalists, it may be wise to set up a standard protocol for communication about a patient, and have your staff make sure that it is followed.

Manage the Patient's Expectations

A complication or risk that may be inherent in a given procedure isn't malpractice, although the patient who expected a routine colonoscopy and wound up in the operating room for 5 hours may think so.

"There is always a tension between disclosing material risks and the patient's willingness to undergo treatment," notes Armand Leone. "Doctors often say, 'If I told the patient all the things that could go wrong, I'll scare him away from a necessary procedure.' There's some truth in that, but physicians are obligated to disclose the risks, benefits, and alternatives, including the option of doing nothing.

"Perforation is a known complication of colonoscopy, but most patients aren't aware that it occurs," he said. "We routinely turn away patients who want to sue for this. Physicians can do more to prepare patients for that possibility."

James Griffith agrees: "Patients complain about the prep but don't really understand the risk of perforation and peritonitis, and how quickly it may kill them. They typically aren't told the symptoms to look for in the event of a perforation. All they know is a nurse handed them a piece of paper and said, 'Here, sign this so we can get started.' She could have added 'so we can get paid.'"

Although it may be difficult for patients to win such a lawsuit, the case would never exist if physicians spent more time on the informed consent process. "You could say that perforation or excessive bleeding is rare, but if it does happen, he'll need to undergo another procedure to repair it," says Suzanne Fidler.

In some states, the standard is what a reasonably prudent physician in the same specialty would disclose. In others, it's what a reasonably prudent patient would want to know before deciding to undergo a procedure. "They may not be the same thing," said Joseph McMenamin. "Doctors need to check with their state medical societies and gear their remarks to that test."

Informed consent forms can't take the place of a true discussion, but wording of the form can help prevent lawsuits. "In the forms I've drafted, there's always a line that says, 'I have been given the opportunity and time to ask all of my questions. They have been answered to my satisfaction,'" he says.

Patients with unrealistic expectations are more likely to sue if there's less than an optimal outcome, notes Alfred Belcuore, a defense attorney in Washington, DC. "A warning sign is if you sense the patient isn't really listening but only hears what he wants to hear. It could be wishful thinking. He may have gone to a number of physicians, shopping for the opinion he wants."

If you think your patient has unrealistic expectations, be extra careful about what you're telling him or her, and document these discussions. You may need to spell out the risks more than you would for other patients.


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