Lancaster Physician Fall 2019 - 17

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hat really causes claims
against physicians? The
likelihood of being sued
is generally not tied to a
particular type of procedure or adverse
outcome. Instead, you may be surprised
to learn that the risk of a lawsuit is more
closely tied to the relationship between a
physician and his or her patient than to a
specific issue or event. As a result, focusing
on enhancing engagement with patients, not
only leads to improvement in patient health
and outcomes, but reduces the likelihood
that an unhappy patient will seek the legal
system to address dissatisfaction with their
provider's care.
While certain types of claims may arise
more often in certain specialties or procedures, the type of unexpected incident
does not necessarily predict the likelihood
of a lawsuit. When an unexpected event
prompts a patient to call a lawyer, it is
more often fueled by frustration and anger
over non-clinical issues such as a failure in
communication, broken process, or poor
customer service. The patient's dissatisfaction
with poor communication or a service lapse is
the catalyst for the call to the attorney. Then,
the quality of documentation often drives
the lawyer's decision to take (or not) the
case. So, what should health care providers
do to address the issues that cause patients
to file malpractice claims? Providers, you
should begin by ensuring that you lay the
foundation for a great relationship, follow
consistent processes, and document the good
care that you provide.
Studies in medical malpractice have
shown that quality of care data and professional liability claims are statistically
linked. Research demonstrates what has
always been suspected: providers having a
higher percentage of satisfied patients tend
to have a significantly lower incidence of
large professional liability claims.
Physicians and other health care professionals should consider ways to continue to
effectively build that all-important patient
engagement. Ensuring that patients receive
excellent service is an important aspect of
that relationship. We are all familiar with

the concept of five-star service. We recognize
excellent service immediately in the hotel or
restaurant industry when an establishment's
focus on quality and service pervades every
phase of the customer's experience. This is
the type of excellent service that a physician's practice can implement to provide
top quality patient satisfaction, experience,
and engagement-and avoid claims in the
process. It is crucial to recognize that every
point of contact is important, from the first
hit on the office website, the first phone
call to the office, the greeting the patient
receives at the front desk, the waiting area
experience-all the way to the actual treatment encounter, follow-up care, and even
billing. Think about the concept of pervasive
and consistent exceptional service. Does it
exist everywhere all of the time? Even when
the electronic medical records system goes
down or when someone doesn't show up for
work? Measuring five-star excellence is even
more important on a challenged day, when
everything does not run smoothly. That's
when you know it is a matter of culture.
To really understand the experience
patients encounter with a physician's practice,
measurement is key. There are practice-specific patient experience survey tools available
to provide crucial information to ensure that
a service-excellence message is uniform and
consistent throughout the practice. Physicians may be convinced that their office is
doing well, but do they really know what is
happening at the front desk or on the phone?
Maybe a team member needs coaching in a
certain area but does not know it. Perhaps
patients are frustrated that a computer screen
is located between them and the physician,
and simply repositioning the laptop so that
it is lower than eye level, or off to the side
of the conversation, is all that is needed to
reestablish that connection. Without this
essential information, it is impossible to
identify the areas needing improvement,
formulate a plan to improve, and execute
the steps necessary to ensure that patients
are shown a five-star experience with every
interaction.
Next, once a plan is implemented to
improve patient relationships and communication, practices should consider whether

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their documentation actually reflects their
efforts to fully engage patients. As previously
noted, lack of good documentation often
drives a lawyer's decision whether or not to
take a case. If a discouraged patient makes
a call to a plaintiff's lawyer, one of the first
actions an attorney will take is to obtain
a copy of the medical chart. It certainly
makes it easier to file a claim when there
is a dissatisfied patient who experienced an
unexpected outcome combined with a poorly
documented medical chart that contains no
evidence of the physician's efforts to engage
their patient in shared decision-making. By
contrast, detailed records, including, for
example, robust documentation describing
the physician's discussion with the patient
concerning the specifics of the procedure,
the risks and alternatives the physician discussed with the patient, and the patient's
acknowledgement of the discussion, may
be among the significant factors that cause
an attorney to decline to file case against
the physician.
It is crucial for providers to discuss the
risks of a procedure with their patient, but
also to fully document that conversation. It
is important to include both the information provided to the patient, as well as the
patient's responses and feedback. When the
patient feels that they were not adequately
informed of a risk or complication, and
then that complication occurs, it could
serve as the basis for a claim called "lack
of informed consent." A lack of informed
consent lawsuit is not based in proving that
a procedure was performed negligently,
but rather such a claim can succeed if the
plaintiff convinces the jury that the doctor
failed to provide the patient with adequate
information regarding material risks and
alternatives to make an informed decision,
and then one of those risks occurs. By contrast, thoughtful, thorough, and consistent
documentation is not only best practice
and enhances quality care, but it will also
demonstrate for investigating attorneys that
they will have a much more difficult, if not
impossible task, of convincing a jury that
a physician failed to adequately inform her
Continued on page 19
Lancaster Physician Fall 2019

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