Medical malpractice

Abstract

Key points•The practice of gastroenterology creates unavoidable risks.•Understanding the elements of malpractice actions can help minimize exposure.•Practice within your areas of competency and training.•Use informed consent to involve patients in planning their medical care. Despite its importance, most training programs devote little time to educating fellows on issues surrounding medical malpractice and liability. This month our guest author, Dr. John Petrini, will address medical liability as it applies to the practice of gastroenterology. Kevin J. Peifer, MD Fellows' Corner Associate Editor Fellow Division of Gastroenterology Washington University St. Louis, Missouri, USA The practice of gastroenterology and endoscopy entails risk that is unavoidable. Even the most careful and skillful endoscopist will likely have complications and that can create a situation that is a potential cause for a malpractice action. However, physicians can take steps to avoid potential litigation or at least to improve the chances that they will win a suit if one is filed against them. In a malpractice case, the plaintiff's attorney must prove 4 elements to be present. The first element of a malpractice action is that a duty to the patient existed. This duty is the physician-patient relationship and is an agreement that the patient will be treated by the physician in accordance with the standard of care. This relationship usually is implied and consensual, and can be established by merely agreeing to see a patient. The second element of a suit is that the physician did not practice within the standard of care and created a breach in duty to the patient. Each side, plaintiff and defense, will try to establish whether or not there was a breach in duty or a failure to meet the accepted standard of care, usually through the testimony of expert witnesses. The third element is that of causation, that is, that the breach of duty was responsible for the injury to the patient. Injury may not be difficult to establish, but it is necessary to establish that the action(s) of the physician was the proximate and the immediate cause of the injury. Finally, the plaintiff's attorney must show that damage(s) resulted from the injury and the breach of duty. In any situation where a patient is treated, injury may occur. There are some steps that can be taken to minimize risk and potential litigation after an injury. The first is to establish communication with the patient that allows for open and free exchange of information. Patients have the right to determine the care that they are given, and providing assistance in understanding the possibilities for that care is the physician's responsibility. Patients are less likely to sue a physician when they view the physician as a compassionate, caring doctor who is an ally and not an adversary. Office staff and nurses are a representative of you and your care. They should convey your message that the patient is important. Second, physicians should know the limits of their ability and training, that is, to take on only the duty for which they have been trained and in which they can support their expertise. Third, document all aspects of care. The written record is the admissible information regarding what was said and done to the patient. It cannot be altered in any way after a motion for suit is filed, and addenda or corrections after the fact are likely to be viewed as an attempt to cover-up poor medical care. “If it isn't documented, it did not occur” is an excellent rule of thumb. Finally, understand the process of informed consent. Consent is not simply a document; it is an agreement between the patient and the physician to perform some action or procedure. Consent is developed through discussion that allows the patient to understand the nature of the proposed action, the reason the action is to be undertaken, the alternatives to the proposed action, the risks associated with the action, and the benefits of the action, as well as the consequences of not having the action. Adequate time to answer a patient's questions must be provided. In essence, the patient must be provided with enough information to allow a reasonable person to make an informed choice about whether or not to undertake the action. The process of informed consent cannot be delegated and must be obtained by the person who will affect the action. Insurance carriers often provide information for physicians. Two sites that link to publications on malpractice and malpractice prevention are www.scpie.com and www.thedoctors.com.