Pearls on avoiding malpractice suits

Started by schmee90
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schmee90

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Was listening to the L Word podcast thought it was super interesting, also thought man ER docs got a tough job. From what I understand being a Pain Medicine doc (even a good one) means a lot of us are going to be sued at one point in our careers.

In addition probably a decent amount of docs on this forum do a decent amount of medical legal work. As a young pain med doc whos been practicing for a few years would be very appreciative if any of the docs on this forum have any pearls on avoiding (as much as possible) or protecting yourselves from malpractice suits?

From attending docs I have worked with some have talked about of course being ethical with procedures, establishing good rapport with patients/communication,appropriately holding/continuing anticoags, and good documentation.

In my experience attaching yourselves to PAs can be a big liablility as well (colleague getting sued for a bad outcome on a procedure a PA did)

Would love to hear any additional pearls specific to our speciality
 
I got sued about every 10 years. First one I thought plaintiff might win but she lied under oath during her deposition so her lawyer dropped the case. CRPS case. The rest were easy to defend but the last case was interesting. The case pivoted on a note written in the E.R. which disappeared from the medical record. I was very surprised to learn some people thought I had torn it out of the chart. Turns out the E.R. nurses kept a copy of all the E.R. doc notes and my attorney was smart enough to go to the E.R. and find the missing note in the nurse's files. The E.R. doc was fired, they left me alone and a PMR doc got dinged. My advice is to document your history in a self defensive manner. For example always ask if exercise makes the index pain worse. If it does, and the pain is above the waist, tell the PCP about it and document that you told the PCP about it. That would be good defensive intake. Do everything that way. Makes things easier when someone dies of an M.I.
 
willabeast said:
I got sued about every 10 years. First one I thought plaintiff might win but she lied under oath during her deposition so her lawyer dropped the case. CRPS case. The rest were easy to defend but the last case was interesting. The case pivoted on a note written in the E.R. which disappeared from the medical record. I was very surprised to learn some people thought I had torn it out of the chart. Turns out the E.R. nurses kept a copy of all the E.R. doc notes and my attorney was smart enough to go to the E.R. and find the missing note in the nurse's files. The E.R. doc was fired, they left me alone and a PMR doc got dinged. My advice is to document your history in a self defensive manner. For example always ask if exercise makes the index pain worse. If it does, and the pain is above the waist, tell the PCP about it and document that you told the PCP about it. That would be good defensive intake. Do everything that way. Makes things easier when someone dies of an M.I.
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Wild story...wonder if the medical board came down on that ER doc...probably should.
 
Laryngospasm said:
Avoid procedures with high risk low reward and low return for patients. You can decide which procedure’s meet these requirements for you. Avoid opioids. Avoid ITDD. Learn how to screen for problem patients ahead of time. Dont be a white knight and try to fix others mistakes.
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I do opioid managment (reluctantly), curious I myself havent seen a malpractice case from opioids, is it from poor monitoring ie no uds pill counts not checking pdmp, high dosages, co rx with benzos?
 
They have to prove you deviated from the standard of care and that deviation resulted in an injury to the patient.

Just think about everything you do and ask yourself if it's standard of care, and if you can prove you did it. Your above questions--yes you have to do all those things if state law and pain society guidelines require, and document that you did them.

Procedures--consent documented, appropriate procedure indications, meds, CYA views saved.

If complication, document it--when first informed, thorough assessment, answers to red flag symptoms, offer to squeeze in, stat MRI, ER. And even if they're mad, don't distance yourself, kill them with kindness and close monitoring. People sue when they feel abandoned.
 
schmee90 said:
Was listening to the L Word podcast thought it was super interesting, also thought man ER docs got a tough job. From what I understand being a Pain Medicine doc (even a good one) means a lot of us are going to be sued at one point in our careers.

In addition probably a decent amount of docs on this forum do a decent amount of medical legal work. As a young pain med doc whos been practicing for a few years would be very appreciative if any of the docs on this forum have any pearls on avoiding (as much as possible) or protecting yourselves from malpractice suits?

From attending docs I have worked with some have talked about of course being ethical with procedures, establishing good rapport with patients/communication,appropriately holding/continuing anticoags, and good documentation.

In my experience attaching yourselves to PAs can be a big liablility as well (colleague getting sued for a bad outcome on a procedure a PA did)

Would love to hear any additional pearls specific to our speciality
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I do a fair amount of medical legal work. Even though opioids seem like an obvious risk, I have seen most of the "issues" related to these drugs show up more in board complaints than in malpractice suits. The most common procedures that I have personally seen end up as malpractice suits are CESIs and SCSs by a longshot. So as a commenter said earlier, I would make sure that you have appropriate in indication to do these procedures. I am sure at some point a lot of the other minimally invasive surgical type procedures that we do will pop up here but they havent yet at least in the cases that I have been involved in.

Lastly, I would not keep non-compliant patients in your practice. I would dismiss them to find more suitable doctors whose directions and suggestions they can follow.
 
mille125 said:
I do a fair amount of medical legal work. Even though opioids seem like an obvious risk, I have seen most of the "issues" related to these drugs show up more in board complaints than in malpractice suits. The most common procedures that I have personally seen end up as malpractice suits are CESIs and SCSs by a longshot. So as a commenter said earlier, I would make sure that you have appropriate in indication to do these procedures. I am sure at some point a lot of the other minimally invasive surgical type procedures that we do will pop up here but they havent yet at least in the cases that I have been involved in.

Lastly, I would not keep non-compliant patients in your practice. I would dismiss them to find more suitable doctors whose directions and suggestions they can follow.
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Really appreciate your insights

Curious with CESI are they basically people that developped hematomas, or wet taps and didnt have appropriate complication management afterwards?

Also for SCS is this with trials or implants same thing...wet taps or hematomas, or are these more related to SCS complications later on down the line?
 
If you do not get complications, you are not paying attention.
If you do not get complications, you are not doing enough procedures.
Complications will happen, it is what happens next that matters.
If you do not recognize complications or fail to handle them properly, you can lose the case.
Clean up your mess or get help in cleaning it up. Do not hide from it or hide it from the patient.

(see pic thread and other posts where I have shared the complications)
 
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lobelsteve said:
If you do not get complications, you are not paying attention.
If you do not get complications, you are not doing enough procedures.
Complications will happen, it is what happens next that matters.
If you do not recognize complications or fail to handle them properly, you can lose the case.
Clean up your mess or get help in cleaning it up. Do not hide from it or hide it from the patient.

(see pic thread and other posts where I have shared the complications)
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Absolutely own your mistakes…couldn’t agree more. Also make sure staff know what to look out for and don’t ignore things like pain or weakness after an ILESI or scs.
 
Agree with opioids being more board complaints. Dont be like neurosurgeons and blame the patient for your mistakes, handle it like a man. Communicate with the patient like your life depends on it.
 
RoloTomassi said:
Procedures--consent documented, appropriate procedure indications, meds, CYA views saved.

If complication, document it--when first informed, thorough assessment, answers to red flag symptoms, offer to squeeze in, stat MRI, ER. And even if they're mad, don't distance yourself, kill them with kindness and close monitoring. People sue when they feel abandoned.
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Superb advice, and the bolded part is the most sage.

Also, document shared decision-making when you’re in a grey area. If you don’t do that currently, start.
 
yes, the most important is the communication and the relationship you establish with your patients before and after any treatment.

patients are a lot less likely to sue the doctor, regardless of the issue, if they have a positive rapport with the doctor.

even if the patient doesnt like you, they tend to not sue if they trust you to make the right medical decision.


and yes, personal experience.
 
Ducttape said:
yes, the most important is the communication and the relationship you establish with your patients before and after any treatment.

patients are a lot less likely to sue the doctor, regardless of the issue, if they have a positive rapport with the doctor.

even if the patient doesnt like you, they tend to not sue if they trust you to make the right medical decision.


and yes, personal experience.
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Very true. I have seen more than one patient who had a legit injury but would not consider suing because they said he cared and was a good guy.
 
schmee90 said:
Really appreciate your insights

Curious with CESI are they basically people that developped hematomas, or wet taps and didnt have appropriate complication management afterwards?

Also for SCS is this with trials or implants same thing...wet taps or hematomas, or are these more related to SCS complications later on down the line?
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Hematoma or nerve injuries.

Majority of them recognized and did everything right after. Still sued or board complained but much easier to defend. You can stop board complaints or lawsuits but you really want to be defendable..

Still it's true that patients are less likely to sue if they like you and think that you care.
 
mille125 said:
Hematoma or nerve injuries.

Majority of them recognized and did everything right after. Still sued or board complained but much easier to defend. You can stop board complaints or lawsuits but you really want to be defendable..

Still it's true that patients are less likely to sue if they like you and think that you care.
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Any pearls on the procedure itself? Poor technique or just a hazard of doing these even technically perfect?
 
mille125 said:
Hematoma or nerve injuries.

Majority of them recognized and did everything right after. Still sued or board complained but much easier to defend. You can stop board complaints or lawsuits but you really want to be defendable..

Still it's true that patients are less likely to sue if they like you and think that you care.
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I call all of my “surgical” patients later that day, the following morning, and then have a nurse visit for incision check on day 3 and 10. It gets super tiring but I hold out hope that when I eventually **** up somehow the patient will like me and know I’m doing the best I can and not sue me. Today I had two nalu implants, a full scs revision who was referred to me, an scs trial, a drg trial, another full scs revision who was referred to me, a sprint, then a few bread and butter. I also document in the EMR every time I call them for the follow up calls.

Do you think any of this is worthwhile or is it just overkill?
 
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PMROralBoards said:
I call all of my “surgical” patients later that day, the following morning, and then have a nurse visit for incision check on day 3 and 10. It gets super tiring but I hold out hope that when I eventually **** up somehow the patient will like me and know I’m doing the best I can and not sue me. Today I had two nalu implants, a full scs revision who was referred to me, an scs trial, a drg trial, another full scs revision who was referred to me, a sprint, then a few bread and butter. I also document in the EMR every time I call them for the follow up calls.

Do you think any of this is worthwhile or is it just overkill?
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you did all that in one day...dang thats crazy amount of volume compared to me
 
PMROralBoards said:
I call all of my “surgical” patients later that day, the following morning, and then have a nurse visit for incision check on day 3 and 10. It gets super tiring but I hold out hope that when I eventually **** up somehow the patient will like me and know I’m doing the best I can and not sue me. Today I had two nalu implants, a full scs revision who was referred to me, an scs trial, a drg trial, another full scs revision who was referred to me, a sprint, then a few bread and butter. I also document in the EMR every time I call them for the follow up calls.

Do you think any of this is worthwhile or is it just overkill?
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That's nice of you to personally call but a lot of work. If the workload is sustainable, patients do appreciate these calls.

I have my MA or LVN call the patients to check up on them a day or two after surgery. If any issues, I'll talk with them or bring them in ASAP. I see my post op patients typically in person 1 to 2 weeks after surgery.

I also have an unofficial open door policy with them. If they have an issue post op and can't get through the clinic, I tell them they can always just come in. They may have to wait a bit but I'll make time to see them. They usually appreciate that and are pretty happy. Most of the time, the patient has been reasonable and hasn't abused this policy
 
PMROralBoards said:
I call all of my “surgical” patients later that day, the following morning, and then have a nurse visit for incision check on day 3 and 10. It gets super tiring but I hold out hope that when I eventually **** up somehow the patient will like me and know I’m doing the best I can and not sue me. Today I had two nalu implants, a full scs revision who was referred to me, an scs trial, a drg trial, another full scs revision who was referred to me, a sprint, then a few bread and butter. I also document in the EMR every time I call them for the follow up calls.

Do you think any of this is worthwhile or is it just overkill?
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It's whatever you feel is needed. I have limited time so my staff calls all patients after all procedures and alerts me if there is a problem which is rare.

There are no right answers. You have to do what you feel comfortable with. If you only feel comfortable call patients yourself then by all means proceed.
 
mille125 said:
The ones that I reviewed did not appear to have poor technique
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The outcomes from cervical epidural hematoma are traumatic for patients and even their families.. it becomes emotional.. not logical even with proper technique you will likely be sued. If you live in a state with review board you will likely avoid a lot of litigation.
 
hyperalgesia said:
-Don't practice in a litigious state.
-As has been mentioned, don't run from issues/complications. It's scary to admit when something goes wrong but the absolute worst thing to do is detach yourself/hide from the pt. This is a major problem with surgeons. Communicate.
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Or just work at the VA under the protection of the federal government 😉
 
GoBeers said:
Have you ever reviewed cases regarding cord stick from CESI? What were the presenting symptoms and outcomes?
CESI is still the one procedure I fear/respect the most, no matter how many I've done.
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I have reviewed two Presentation is as you can imagine. Severe pain followed by numbness/weakness in an affected dermatome. Both improved but not all the way. Both were with sedation, one of them with propofol.

One was only a medical board issue and was dismissed. Other is ongoing.
 
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mille125 said:
I have reviewed two Presentation is as you can imagine. Severe pain followed by numbness/weakness in an affected dermatome. Both improved but not all the way. Both were with sedation, one of them with propofol.

One was only a medical board issue and was dismissed. Other is ongoing.
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As in both woke up with immediate severe onset of pain? Axial pain or was it new onset radicular pain? Is there a true dermatomal distribution when it's the cord being stuck? Did fluoro pictures show intra-cord contrast spread? I'm not even sure what that would look like.

I could only assume if this were done under local, then patient would provide instant feedback and one would know immediately to pull back on needle as fast as possible.
 
Did bilateral IA cervical facet injections on a young crazy female with facetogenic pain following whiplash from MVA. Developed weakness in left leg and peed self in recovery. Injected 0.5cc in each joint with textbook perfect IA spread at all 4 joints. True complication almost nearly impossible but gave me a good little scare. Ended up being all supratentorial.

In summary, the longer I do this the less I enjoy procedures. And I've become much more selective in who I stick
 
clubdeac said:
Did bilateral IA cervical facet injections on a young crazy female with facetogenic pain following whiplash from MVA. Developed weakness in left leg and peed self in recovery. Injected 0.5cc in each joint with textbook perfect IA spread at all 4 joints. True complication almost nearly impossible but gave me a good little scare. Ended up being all supratentorial.

In summary, the longer I do this the less I enjoy procedures. And I've become much more selective in who I stick
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Physiologically it doesn't make sense but I've had these patients with vague complaints immediately after a procedure that doesn't mechanistically make sense and basically keep implying (sometimes outright blaming) the procedure. All that to say how did you discuss with patient and explain it? I do my best to examine and then review imaging and explain that physiologically the symptoms don't line up but usually met with a stare of doubt
 
Watched her for an hr and provided a lot of TLC to both her and her enabling mother. Examined her and provided reassurance that her exam does not indicate anything serious. Tried to explain it as a vasovagal like response. She was for the most part feeling better upon discharge but told her to come back in if her symptoms continued or worsened. Documented everything profusely.... that was practically the worst part 😉
 
Woke up in severe pain or complained intraop. Presentation in both was more of weakness than radiculopathy. True dermatomal distribution hard to characterize as you might imagine. Operative Images showed nothing unusual but MRI done 24-48 show new findings at area of interest.

Hard to say what would happen under local. Area of controversy. I use local or PO Valium. I had one patient two years into practice who complained of pain with perfect epidurograms. I withdrew. Symptoms went away immediately. No sequelae.. That shaped my practice for next 20 years to follow. Not implying what others should do. Just sharing my story.
 
mille125 said:
Woke up in severe pain or complained intraop. Presentation in both was more of weakness than radiculopathy. True dermatomal distribution hard to characterize as you might imagine. Operative Images showed nothing unusual but MRI done 24-48 show new findings at area of interest.

Hard to say what would happen under local. Area of controversy. I use local or PO Valium. I had one patient two years into practice who complained of pain with perfect epidurograms. I withdrew. Symptoms went away immediately. No sequelae.. That shaped my practice for next 20 years to follow. Not implying what others should do. Just sharing my story.
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Any advice on documentation of risks?

I discuss a lot of risks with patients. I give them in order of most serious/common and less likely but reported. It's a long discussion but we go over everything. I've seen notes from colleagues and had some discussion. Most document very minimal (i.e. risk of dural puncture, infection and bleeding) and tell me I over document. I have also seen patients from other docs who get upset with the risks and they've "had this injection for years and no one me tioned this" so it's making me reconsider my approach. Would appreciate if anyone has a risk discussion template I could view
 
interjectionreflection said:
Any advice on documentation of risks?

I discuss a lot of risks with patients. I give them in order of most serious/common and less likely but reported. It's a long discussion but we go over everything. I've seen notes from colleagues and had some discussion. Most document very minimal (i.e. risk of dural puncture, infection and bleeding) and tell me I over document. I have also seen patients from other docs who get upset with the risks and they've "had this injection for years and no one me tioned this" so it's making me reconsider my approach. Would appreciate if anyone has a risk discussion template I could view
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Here's the gist of mine - Risks, benefits and alternatives were discussed in length including but not limited to bleeding, infection, nerve damage, paralysis, headache, worsening pain, and reaction to the medication - followed by a bunch or other mumbo jumbo
 
clubdeac said:
Here's the gist of mine - Risks, benefits and alternatives were discussed in length including but not limited to bleeding, infection, nerve damage, paralysis, headache, worsening pain, and reaction to the medication - followed by a bunch or other mumbo jumbo
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Do you list out the reactions to the medication and steroid effects etc?
 
clubdeac said:
Here's the gist of mine - Risks, benefits and alternatives were discussed in length including but not limited to bleeding, infection, nerve damage, paralysis, headache, worsening pain, and reaction to the medication - followed by a bunch or other mumbo jumbo
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Curious from anyone who does medical legal work...does this actually protect you from anything...ie if you do an injection and have "nerve damage," can you just say i told you about it on the consent form.

Just wonder as some of the docs mentioned complicatinos were docs did everything right and stil were sued.

I like to keep my notes short and too the point but if this is the case im gonna dot phrase it up a big more
 
schmee90 said:
Curious from anyone who does medical legal work...does this actually protect you from anything...ie if you do an injection and have "nerve damage," can you just say i told you about it on the consent form.

Just wonder as some of the docs mentioned complicatinos were docs did everything right and stil were sued.

I like to keep my notes short and too the point but if this is the case im gonna dot phrase it up a big more
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COnsent signed is better than not consent signed.
But it does nothing to protect you if signed.
 
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clubdeac said:
Did bilateral IA cervical facet injections on a young crazy female with facetogenic pain following whiplash from MVA. Developed weakness in left leg and peed self in recovery. Injected 0.5cc in each joint with textbook perfect IA spread at all 4 joints. True complication almost nearly impossible but gave me a good little scare. Ended up being all supratentorial.

In summary, the longer I do this the less I enjoy procedures. And I've become much more selective in who I stick
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Reassurance
 
lobelsteve said:
COnsent signed is better than not consent signed.
But it does nothing to protect you if signed.
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I agree with Steve. If patient has a complication that is not in your consent, then you are starting in a bad position. If patient has complication that is in your consent it doesn't automatically exonerate you.

Remember in med mal (and in medical board issues too) negligence has to be proven meaning that you operated outside the standard of care. If your patient gets a C7 paralysis after CESI but you operated within the standard of care, you are still in a good place defensively.

The question always becomes what is the standard of care. Is giving propofol for injections within the standard of care? Is neoro monitoring for SCS?

Did you act responsibly after the complication was identified?

Was there an appropriate indication for the procedure? Were other things tried and failed or did you use that SCS really early in the algorithm? Was there true radiculopathy and adequate previous response before CESI?
Did you practice follow the LCDs for the injection?

These questions and other similar ones are where the case turns
 
As the saying goes, its not what you know its what you can prove? Their is a pattern to this and a good attorney will take you through it. You need to support everything that you have done. I only do defense work but many times I am asked to play the rule of the SOB on the other side. You really have to have a well thought out reason if you are doing anything that is not completely in lockstep with published guidelines and LCDs. For those of you that do propofol for ESIs and MBBs, you need to be aware that the LCD says that sedation should be rare. Also note that SCS is described in the LCD as a rare last ditch effort. This is a point of contention that comes up often. You just need to have a reason for what you do. A good defense attorney/plaintiff expert/medical board expert is going to be able to hound you on this and other things. You just need to be prepared to play the game well.

Lastly, you have to leave the God complex at home if this is your usual persona. You have to show empathy, humility, and compassion. If you can't (which some cant) then save yourself the trouble and the money and just settle early on.
 
clubdeac said:
yes for the steroid I do... as others have stated, consents are probably bs and don't do much to protect you unfortunately. Only protection is not doing procedures
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Agreed but you could argue that the non procedure side of your practice also has risk. I know someone in a lawsuit foe missing a cancer and another pain doctor defending a medication side effect.

So I would go further and argue that everything we do has risk but some are riskier than others.
 
lobelsteve said:
COnsent signed is better than not consent signed.
But it does nothing to protect you if signed.
Click to expand...
Agree 100 percent, i guess my questions is do you think big note bloat on there about talking about potential risks discussed with patient in addition to a good consent form does anything for protection. I actually do try and spend a good amount of time on risks and benefits of procedure with patients so i do put it in my clinic note, but wonder if this is a waste of time when we have a perfectly good consent form
 
schmee90 said:
Agree 100 percent, i guess my questions is do you think big note bloat on there about talking about potential risks discussed with patient in addition to a good consent form does anything for protection. I actually do try and spend a good amount of time on risks and benefits of procedure with patients so i do put it in my clinic note, but wonder if this is a waste of time when we have a perfectly good consent form
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In a medical/legal case it is necessary to have a patient signature on the consent form. Having it in your note doesn't hurt. but if that is the only place it is shown the opposing counsel can quite easily say that the patient did not understand, did not remember., etc and you might as well save your money and just settle that case early.

They will still try to say this from time to time even if they signed it so I would have all of the issues in the consent and you can augment it in your notes if you like. But if it came down to one, it has to be the signed consent.

I am very blunt in these situations because this is people's time and money. I have on more than one occasion told the defense counsel to save time and money and don't ask me to write a report. Just pay me for an hour of my time and settle this case now. Most of the time they listen. A few times they haven't because they couldn't convince their client that this was the move. Those did not end well.
 
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schmee90 said:
Agree 100 percent, i guess my questions is do you think big note bloat on there about talking about potential risks discussed with patient in addition to a good consent form does anything for protection. I actually do try and spend a good amount of time on risks and benefits of procedure with patients so i do put it in my clinic note, but wonder if this is a waste of time when we have a perfectly good consent form
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Useless.
My consent is the same as cardiac surgery consent at my hospital system
 
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