How to avoid being swept away by the rising tide of malpractice litigation.

I recent years, medical malpractice litigation has reached epidemic proportions. Not only are lawsuits more common, but judgments are increasing precipitously. It is important, therefore, that all physicians become acquainted with measures to limit their exposure to this increasingly severe problem. In my experience, lawsuits are generated by a relatively small number of recurring situations. High on the list are problems relating to incomplete acquisition of historical information. This is a great problem in emergency rooms, where sheer volume of patients dictates brevity. This may sometimes lead to incomplete characterization of pain, leading to errors in diagnosis that in turn generate lawsuits. The diagnosis of gastroesophageal reflux versus pain of cardiac origin occurs frequently and generates frequent lawsuits if a cardiac cause was overlooked. Relying on chest wall tenderness to palpation, negative cardiac enzymes, normal or nonspecific electrocardiograms, and mid-epigastric location of pain that was relieved by a “GI cocktail” to rule out cardiac origin of pain is a big mistake that I have seen on several occasions. In many cases, the patient returned to the emergency room in cardiac arrest. In each case the patient would have benefited from a more prolonged stay in the emergency room with serial electrocardiograms and enzymes, perhaps even a “23-hour admission.” Some hospitals have emergency room annex areas for such cases. These measures would markedly cut down patients with gastroesophageal reflux disease who return in full cardiac arrest! Another charting problem causing frequent lawsuits is a handwritten progress note that is nearly unintelligible, which does not indicate that pertinent diagnoses have been addressed or treated. Some do not address significant changes in patient condition or changes in therapy to address a new problem. Plaintiff attorneys usually assume that if a “physician did not write it down, he did not do it.” Juries readily buy into this assertion. The solution to this problem is to dictate progress notes. Such notes are almost always more detailed, and certainly easier to read. Omitting indicated studies frequently generates litigation. In 1 case that I reviewed, a patient returned to the emergency room 3 times in 2 days for recurrent midepigastric pain. On each of the first 2 visits, he had an electrocardiogram that was normal. On the third visit, the patient had a chest x-ray and cardiac enzymes but no electrocardiogram. His last electrocardiogram was that morning, on his second emergency room visit. The fourth emergency room visit occurred within 12 hours of the third visit. The patient was in full code status on arrival at the hospital. Failure to perform the electrocardiogram on the prior visit was deemed below the standard of care, although electrocardiograms were recorded on each of the prior 2 visits, and were normal. The plaintiff prevailed. Just 1 more normal electrocardiogram would have won the case! One final comment regarding medical records is the most important of all. The physician who receives a notice of intent to sue may wish to amplify on his original notes. This must be avoided at all cost, because if discovered, the case is surely lost! In a case that I reviewed, the chart had a note regarding the patient’s visit that was unusually detailed and very complete in every way. It turned out that the same in-patient chart had been requested by another attorney months before. It was sent by risk management at the hospital. The chart I received came from the medical records department. The physician who admitted the patient did a short incomplete admission history and physical, as seen in the risk management copy of the chart. My copy had the very complete revised admission note in place of the shorter note. There were no real differences in the 2 notes, excepting that 1 was short and incomplete, the other lengthy with all pertinent positives and negatives duly noted. Needless to say, when this discrepancy was discovered, the defendant’s credibility was severely questioned. The defendant’s attorney had little choice but to settle for the full amount of the defendant’s malpractice coverage. This would not have been the end result had the physician resisted the urge to alter the chart. A word regarding malpractice coverage is in order. I live in a community property state. A physician whose wife and daughter were both nurses asked about malpractice coverage. Because his daughter was recently out of training and had few assets, I recommended against personal malpractice insurance. It is available at little cost for a million dollars insurance, but I have seen cases where the nurse is personally named if she has a large malpractice policy. This rarely happens if she has no insurance. In contrast, the physician’s wife should have as much insurance as her husband in a community property state, because a judgment against either would imperil half their joint assets. It therefore makes no sense to insure the nurse for any less than her physician husband. The question of how much malpractice insurance is best often comes up. It has been my experience that From the University of Texas Health Science Center at San Antonio and the Skinner Clinic, San Antonio, Texas. Manuscript received and accepted October 14, 2002. Address for reprints: Charles H. Beckmann, MD, Skinner Clinic, 124 Dallas St., San Antonio, Texas 78205. E-mail: sklncli@ swbell.net.