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Liability Exposure Reduction Strategies

Ronald T. Burkman, MD; John G. Bagley, JD

In past issues, we have concentrated on the processes involved in a lawsuit, including the filing, the discovery phase, approaches to non-trial resolution, and the trial phase. This article revisits some of the basics that may reduce your chance of going though this lengthy, expensive, usually unrewarding, and often uncomfortable process. The focus will be on adverse outcomes, since such events lead to exposure which could ultimately result in legal proceedings.

Although there are many approaches, here are a few general tips for preventing liability exposure:

Prevent the likelihood of an adverse outcome.
Communicate more effectively within the health care team and with patients.
Recover if an adverse outcome occurs.

For the most part, all 3 areas overlap. For example, preventing adverse outcomes may depend on communication. Furthermore, because not all adverse outcomes can be prevented, a recovery approach may be needed, and it may require a communication strategy.

ADVERSE OUTCOME PREVENTION STRATEGIES

Certainly the old adage, “an ounce of prevention is worth a pound of cure” holds true with regard to adverse outcomes and the potential for malpractice lawsuits. There are many ways to put this into practice. On a regular basis, perhaps annually, do a critical analysis of your practice’s strengths and weaknesses. Solicit a colleague to contribute input. If a significant weakness is identified, remediate it through a CME program or through mentoring. Alternatively, that aspect of practice can be conceded. For example, if you have difficulty with urogynecologic procedures due to low volume, it may be appropriate to refer applicable patients to a partner who has a higher volume or more experience. As a corollary, everyone should be aware of their limitations and obtain help or consultation earlier rather than later in a patient’s course.

When a new technique is introduced, perform cases with someone credentialed in the procedure until you are comfortable performing them alone. If possible, use simulation to practice the procedure. In high risk areas such as obstetrics, it is important to promote the use of crew resource management or team training as part of a culture of error reduction. Certainly at the very least, clinicians and their staff should consider simulating obstetric emergencies such as shoulder dystocia, abnormal fetal heart rates, and hemorrhage. Rely on approaches that are evidence-based as much as possible: they are more likely to be effective and safe.

Every practice should also examine whether on-call hours are excessive relative to the practice’s volumes. Although the focus to date has been on limiting work hours for residents-in-training, this may encompass all health care professionals in the not-too-distant future. If working excessive hours is deemed unsafe or risky for young health care professionals, how can a different standard be justified for their older peers, particularly those with busy practices?

Communication Strategies

Appropriate communication is essential in every practice at various levels. When interacting with patients, allot them enough time to describe their concerns without interruption. This requires the development of good listening skills, since impatience and overbearing directives may give the impression that you have less concern for a patient’s particular issues. Every planned procedure or surgery should be explained in detail, including risks and benefits. When appropriate, providing supplementary reading material can also be helpful. Encourage questions, and even try querying patients to confirm their understanding of key points. Although the patient’s autonomy in any decision-making processes should be maximized, try to recommend reasonable options rather than presenting a “menu” from which the patient chooses without any direction. If a serious complication or unanticipated outcome occurs, be honest with the patient and discuss what happened.

Another important aspect of communication is with other practitioners and staff. Adequate chart documentation is a vital component of communication and may aid in avoiding medical errors and unnecessary procedures. Additionally, it is useful to review some of the communication concepts taught in team training, such as:

The 2 challenge rule: a team member voices a concern 2 times to ensure it has been heard.
Check-backs: orders are verbally repeated or questioned when unclear, increasing the margin of safety from an operational standpoint.

If there is concern about liability, the risk management staff of a hospital can assist in formulating communication plan appropriate for the circumstances.

Recovery Strategies

There are useful strategies that may help a health care professional recover should an adverse event occur. The first is an adequate recovery strategy, or taking actions necessary to resolve the problem and minimize any permanent consequences. Liberal use of consultants can be beneficial, since a lack of emotional involvement enables them to be more objective.

Once the situation is under reasonable control, openly discuss the adverse event with the patient. Such discussions should be carefully planned and involve several members of the health care team to ensure the information is complete and does not conflict with what others have said. Any discussions with the patient should be documented, including a list of all attendees and what was discussed.

In instances where avoidable errors have been made, an apology can be crucial. Although it may be difficult, a sincere apology helps rebuild a doctor-patient relationship. However, an apology requires some planning; assistance from risk managers will be especially helpful in this regard.

CONCLUSION

The initial prevention of adverse events, open communication with patients and among the health care team, and successful recovery from adverse events are strategies that may limit the likelihood of liability exposure. Using evidence-based information to guide treatment and seeking assistance when necessary (either from colleagues during a new procedure or from a risk management team after adverse events have occurred) provide many liability prevention benefits.

The authors report no actual or potential conflicts of interest in relation to this article.

Ronald T. Burkman, MD, is Professor, Department of Obstetrics and Gynecology, Tufts University School of Medicine, Boston, MA; Division of General Obstetrics and Gynecology, Baystate Medical Center, Springfield, MA; and Editor-in-Chief, The Female Patient. John G. Bagley, JD, is Senior Partner, Morrison Mahoney LLP, Springfield, MA.