10 New Malpractice Concerns, and How to Avoid Them

Leigh Page

Disclosures

November 04, 2015

In This Article

Risks Arise, but Many Can Be Avoided

The news on the malpractice front is still somewhat upbeat: Physicians are far less likely to be sued than they were a decade ago. However, several new concerns appear on the horizon—threats that are either brand-new or were largely unfamiliar years ago. Some of these concerns may not apply to you; a few others are still only conjecture and may not materialize, but it's worth knowing about them.

Here's a list of 10 new threats, and what you can do about each one.

1. High Deductibles Are a Growing Danger

High-deductible insurance policies, which leave patients on the hook for from $1000 to about $6000 before coverage kicks in, have become common only in the past few years, and they loom as major malpractice risks for doctors.

In a 2014 survey[1] by the Commonwealth Fund, 43% of low-income respondents said they had delayed or skipped needed care because of deductibles, copayments, and other out-of-pocket costs. Even among those with moderate incomes, one half said their deductibles were difficult to afford.

When patients forgo care owing to cost, physicians are not off the hook, says James W. Saxton, a malpractice attorney with Saxton and Stump in Lancaster, Pennsylvania. "Doctors should follow patients to make sure they come in for annual examinations, and they need to tell them when they're due for preventive tests, such as colonoscopies and mammograms," he says.

In one reported case, a doctor saw the patient for years but never offered him a full physical exam. The patient was ultimately found to have stage IIIB colon cancer. After his death, his family sued the doctor. The doctor claimed that the patient was only seeing him for blood pressure checks and did not want a "full examination," but the court didn't buy that argument.[2]

What can you do about this risk? Saxton advises that you always need to document your instructions to patients, and instructions should include telling patients about the implications of nonadherence. "The implications of noncompliance—that's what these cases are about," he says.

Saxton also recommends following up by sending an "at risk" letter to the patient, which restates the implications. "More often than not, patients comply when they get these letters," he says. "It's not a 'gotcha'; it's actually a patient compliance strategy."

It also helps to discuss barriers to care with the patient and try to come up an alternative. "Point out that there may be low-price alternatives available at clinics or through programs from pharmaceutical companies," Saxton says.

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