Legal issues, or how to stay out of trouble

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By Brian Funaki and Hector Ferral

 

Many malpractice lawsuits are filed because of an unexpected, adverse outcome. This underscores the importance of communication between physicians and patients. Informed consent is paramount, and an excellent patient-physician relationship deters litigation because people generally do not sue people they like, write Brian Funaki and Hector Ferral.

Brian Funaki_main
Brian Funaki


Complications are common in medicine. Fortunately, most do not represent medical malpractice. Several conditions are required to establish malpractice. First, there must be a physician/patient relationship that establishes the duty of care. Second, an adverse outcome with actual injury or harm must occur. Finally, the untoward outcome must be attributable to provider negligence (often interpreted as failure to provide the standard of care) with direct causality between negligence and outcome. The standard of care is defined as that provided by a “reasonable” physician in your community. Many malpractice lawsuits are filed because of an unexpected, adverse outcome. This underscores the importance of communication between physicians and patients. Informed consent is paramount.


It is important to recognise that a physician is not required to disclose every possible complication but all common and serious risks should be discussed frankly in addition to alternative medical or surgical options. The patient and family members should understand the reasons to perform a procedure, the risks and benefits of the procedure and be cognisant of the most common complications. Of course, the patient and family members need to agree with intended therapy and this should be well documented in the medical record. Ideally, therapy will have been discussed on a day prior to the procedure in a non-threatening clinical setting. In their own practices, the authors encourage all patients to seek second opinions for any interventional procedure and become as educated as possible with their care. An excellent patient-physician relationship deters litigation; people generally do not sue people they like.


Management of complications carries weight


In the authors’ experience, most complications, even the ones that result in litigation, do not constitute malpractice and nearly all are defensible because every “reasonable” interventional radiologist is expected to have some complications in their practice. What is often more important is how a complication is managed. A minor complication that is poorly managed, may become catastrophic. Awful patient management after a complication is difficult to defend. When a complication occurs, it is important to always get help; any relevant specialists who may provide insight and care should be consulted. Adverse events should be fully disclosed to patients and families. Avoiding the patient and/or family members after a complication or an adverse outcome is not good practice. In general, all patients and their families expect is the best possible care, honesty and a straightforward attitude. In our experience, patient and family members usually appreciate the doctor’s concerns and efforts as well as support after a poor outcome.

In general, the risk management team of the institution should be alerted, especially if errors

Hector Ferral
Hector Ferral

occurred.  Typically, a file is created with additional documentation and special care it taken so that medical records are not lost. Written documentation is critical and physicians should never alter the medical record in any manner after the fact, even to clarify unclear notes or reports. Similarly, “chart fights” rarely benefit anyone except a plaintiff’s attorney.


The interventional radiologist is exposed to certain challenges that are unique to the practice of the field. A case in point is the management of other physicians’ complications. In some instances, another physician’s complication may become the interventional radiologist’s complication. It is essential for the interventional radiologist to be diligent in charting documentation of his/her opinions and reasons to proceed with invasive therapy or to avoid an intervention. The more specific the documentation the better, without the need to be extensive. Writing an opinion or documenting a decision establishes in the chart that the interventional radiologist is a “reasonable” physician and is acting by the standards of his/her community. Allowing the patient and family to vent their frustrations is acceptable in given situations, however, it is our opinion that the attitude should not be accusatory.


Physicians should routinely and periodically critically evaluate their malpractice insurance. Incident insurance should never be lower than the average malpractice settlement in your community. Asset protection should be discussed with a professional and should be tailored to practice location. Medical litigation is governed by state laws and each state is unique. In the USA, medical malpractice lawsuits are more common in the northeast compared to the west. 

Like many things, in medical litigation, avoidance is clearly the best approach, whenever possible. 


Brian Funaki is professor of Radiology and chief, Vascular and Interventional Radiology, University of Chicago Medicine, Chicago, USA. Hector Ferral is senior clinical educator, North Shore University Health System, Evanston, USA. They have reported no disclosures pertinent to this article