"Saying the right words to a hostile patient at the
right time will often convert a potential malpractice
action into a regrettable court consequence."
What medical doctor hasn’t worried about being sued by a patient because they made a mistake in the patient’s treatment? The few physicians who have never admitted being involved in a malpractice action during their medial career either lie, have a different interpretation of what a “malpractice action” means, or have a remarkable rare talent of persuading patients
not to sue them.
The common methods used to convince patients not to sue YOU, are…
1. Confess your error or mistake face to face with the patient as soon as possible after the mistake occurs. Do it even if it’s not a serious error and might later be interpreted as serious later. This
immediately avoids the issue of you hiding your mistakes, a common powerful incentive for patients to sue even if they had not planned to do so.
2. Describe the event in detail, the consequences of the mistake, and what has been done or need to do to correct the problem. It is best to have family members present during this discussion, as difficult as it may be for any physician to do. The reason is three-fold.
First, the family hears exactly what happened and what was done about it directly from the
treating physician and not just from the patient later.
Second, the patient may be on medication, be distracted or confused, or misunderstands what
you said to them. The patient often tells them later from her memory and interpretation of
what the doctor said. That leads to second hand information that can easily be construed to be
worse than it actually was.
Third, Nurses naturally side with a patient, especially when they see what happened to the
patient and heard third-party misinformation which is often inaccurate and exaggerated.
From their inadequate knowledge at the moment, nurses are apt to say inappropriate things to
the patient about the physician's actions or problem history of the physician at the hospital or
clinic in order to remain on the patients side of the issue. This scenario is not rare and should
be considered at deposition time.
A large number of malpractice actions are instigated by families who don’t understand the full
event, the circumstances, and the consequences… even when the patient has already forgiven
the event and then is pressured to change their mind.
3. Increase your attention to the patient and their medical condition for a more than usual time after the event. This shows your intent to make things right no matter what and your emotional concern that there is no further problems as a result of your treatment mistake.
Your phone calls to the patient at home soon after the event (few days) to be sure all is well with the patient is something most physicians don’t do, and should. It’s a great reassurance to the patient that you weren’t just "blowing smoke" at them earlier at the hospital when the problem
was evident.
The only time you shouldn’t do this is if the patient and/or family member(s) have already made their decision to sue you and voice that opinion to you or the attending nurse. In this situation you may not be allowed or given a time to explain your side of the problem immediately after
the incident.
That's why your copywriting ability to place the right words and explanations, said in the right way, on the patient's medical record, protects you. The fact that in the court room trial, patients won't remember what they said, how they said it, and what they were told by the doctor and you did put your information in the record right after the incident, eliminates in the jury minds the need to ascertain the facts already on the record verses the argument about he said, she said, unrecorded.
Remember, what you record there will be read back to you in court in front of the jury and judge, word for word. Make the thoughts and words you record in the medical record influence favorably and honestly on your actions. Remember to add to it the names people who witnessed the original event.
There are good reasons not to debate your actions in this circumstance…
First, the hostile or threatening nature of the patient or family members is not the place to argue out your excuses and explanations. They don’t want to hear them and will make them more angry (I’ve been there myself).
Second, forget about giving any apologies or admitting any guilt (strongly recommended by all defense attorneys and risk experts). Such anger in a patient or family member obliterates any trust or acceptance of your regrets or apologies at that time.
Third, if you walk into the room either in the hospital or in your own office and instantly are
being verbally attacked by your patient or their family members for some error in treatment of the patient, turn around without saying a word and leave the room. If they follow you--RUN.
You need to do that because in this situation you are most likely tempted to let your emotions flare in self-defense. When that happens you say things to them that may compromise your defense in court or during later attorney depositions. What’s more important is what you say and how you say it at the time. Jury members know that in this confrontation, patients usually remember the exact words and details of the event very clearly.
What you should say to the patient in your own words in succession is…
1. What you did wrong to your own patient in terms of standard of practice, even if it was accidental or unintended. When it’s one of your associates patients you managed and after introducing yourself to the patient you managed, follow the same sequence I’ve recommended.
2. A sincere and caring apology for your actions.
3. A statement saying that you are totally responsible for what happened, even if you were only partially responsible. If you are quick to blame your error on another person or circumstances at the time it happened, the message sent to the patient is that you are hiding something.
4. Remain silent for a minute while the patient has time to run thoughts through her or his mind,
and is able to then ask questions to you about the three or four things that are most important to
her final reaction to what you did. It’s better not to ask if the “patient has any questions” because they will have them and will ask them as soon as they can mentally organize what they need to know regarding the incident.
5. Be honest and diligent in responding to each question the patient asks. If you don’t, the patient will recognize it immediately. Humility helps.
6. As in copywriting, you make your answers with short statements, do not keep repeating your answers or responses, don’t puff-up your explanations, use only common words in your responses (no big medical terms), and stay focused only on the question asked.
All surgeons know that you don’t leave anything inside a patient that should not be there. When it happens inadvertently and is later discovered (sponges, instruments, etc.) most, if not all, result in malpractice actions. While I was doing a Marshall-Marchetti bladder surgery, I snapped off half of my suture needle in the process and could never find it again after searching diligently.
Later, I proceeded through the above steps and no legal action was taken. I followed the same sequence on a few other situations over 35 or so years in practice and all avoided legal action, thank God for his help.
Your copywriting expertise used in charting medical progress notes...
In any malpractice claim all of your progress notes in hospital patient charts and office records concerning a patient claiming malpractice are reviewed intensively by attorneys. Your exact words you wrote down or dictated to the record can have many meanings that you never thought of at the time. Your recorded information can come back to haunt you when read in court.
My lesson: During my medical training residency, I encountered a male patient whose complaints involved rectal symptoms and it required a digital rectal exam. In my attempt to do the digital rectal exam the patient jumped around, put his body in contortions so fiercely that I was unable
to do the exam.
The patient response was so unusual that I wrote in the patient’s chart that this patient was the “goose-iest” patient I had ever encountered and prevented me from doing an essential exam.
Somehow the professor discovered my progress note and came to me immediately. Not only did he chew me out for including my personal description of the patient’s response in that manner, but also proceeded to instruct me to remove the description completely. I had never been sued so I was doing only what I was told to do about charting details, which I did my own way. It pays to listen to experienced physicians offering advice.
The lesson I got that day stays with me. First, all written and recorded progress notes must contain acceptable medical words and descriptions. It’s copywriting skills that can save your ass.
Secondly, when such words are read aloud in a courtroom to the jury (and they will) at your malpractice trial, the effect on the jury’s decision about you and about your feelings towards your patients influences the verdict negatively. It was key to my future prevention of legal actions against me—something you need to remember. Even though you are being serious and honest in describing the problem event, the words in a courtroom will make a fool out of you.
On the other hand, never leave the progress record blank instead of written details in these situations that have even the slightest inkling of a potential malpractice claim. A blank record means to juries that you are hiding something.
Just as bad is the fact that once the malpractice claim is filed, many physicians have a tendency to go back to the record room to add new comments to the old chart trying to protect themselves. Plaintiff attorneys are incredibly good at detecting later additions to the records.
If you decide to do that, then be careful to put the date you wrote the additional notes or info and add your signature to it--that saves you a dishonorable 30 minute session in the witness chair while the plaintiff attorney makes a scene in the courtroom in front of the jury by making you admit you went back and added new information to protect yourself, therefore altering the facts and appearing dishonest.
If you intend to write a protective and honest progress note, be specific enough to accurately describe the patient’s condition. “Recovering as expected” provides no information to anyone, including yourself.
When you are confronted months later in your deposition and asked to explain exactly what you mean—and you couldn’t possibly remember—so, you manufacture something reasonable in response—really just a fabrication that plaintiff attorneys love to throw at you later when you are on the stand and often do during your deposition.
“The patient is walking without help.” “The incision is clean, no longer oozing, and no unusual inflammation or signs of infection are present.” In this litigious generation you have to protect yourself even if you have no worries about how you know your patient will recover without
medical problems.
On the third post-op day you better be damn sure that the patient’s difficulty with breathing (even if the patient has a history of asthma, allergy, or neurotic breathing problems) is not caused by a pulmonary embolus.
Make a progress note for example, “that after listening to the patient’s chest with a stethoscope and ordering a chest x-ray to rule-out a pulmonary embolus, the patient’s trouble breathing seems to be the result of allergy or other less serious causes. I've counseled defense attorneys on two such cases.”
You have validated in your note that you have considered the most dangerous post-op complication. You have significantly reduced the risk of litigation problems by taking the time to write a progress note that is factual and properly considered. Only you can protect yourself.
You and every medical professional would do well to read “On Writing Well” by William Zinsser. He explains the shaded meanings of words and the need to know the actual meaning of words you use casually in writing.
There is usually a conflict between what you say and write, and what the listener or reader thinks you mean. This is especially true when language barriers exist in patient situations.
Being misunderstood in the management of a patient is a thing to be avoided at all costs. How you put together your words, phrases, and sentences, whether spoken or written, requires your understanding that others clearly know your meaning.
When in a hurry to get things done, you are at your most vulnerable point for destroying your medical career.
Copywriting is the method about how to communicate efficiently in your office or at home. The higher level of learning about linguistics can give you more tools to use to protect yourself and ensure best communications.
This doesn’t mean you have to take courses in copywriting while practicing, but it’s reasonable to take a few evenings and read some books on the subject that I recommend. Resource for this can be found in the Harvard Business Journal... "top ten articles on communication."
“If you can get yourself to read thirty minutes a
day, you’re going to double your income every year.”
---Brian Tracy
Some physicians scoff at the idea of taking a short time to carefully choose the right words that have the best meaning for what you are thinking about and need to describe on your progress notes, dictated operative notes, office interactions with patients, or communications with your peers or associates.
But in all doctor-patient communication is where all physicians are vulnerable, yet seem to serve the "time god" rather than their own welfare. All it takes is one medical malpractice claim to open your eyes about how diligent plaintiff attorneys dwell on every written or spoken word coming out of your mouth or off your fingertips.
After 15 years of consulting with both plaintiff and defendant malpractice attorneys on malpractice cases, my own glaring mistakes and vulnerabilities came to light. Some I recognized myself and corrected.
The ones that cost me the most heartache and mental pain were those mistakes I made when relying on my own judgment and self-imposed standards. You know, the decisions we all make because we choose to create certain rules to follow in medical practice.
I made a promise to a long time infertility patient of mine who became pregnant on her own without any of my magnificent efforts to make it happen. That promise of never doing a C-section on her at delivery time resulted in a vaginal delivery that I regret to this day.
Lesson---never make promises to patients as to outcomes under any circumstances regardless if you lose a patient as a result. Don't let your over-confidence is your personal skills lead
you to the legal quicksand.
Actually, it led to serious medical practice ramifications that I never recovered from. I think today, "How dumb or immature I was to stick to my word, my promise" rather than the proper medical decisions I was taught by professors much smarter than myself.
Lesson---never make promises to patients as to outcomes under any circumstances regardless if you lose a patient as a result. Don't make your over-confidence is your personal skills lead you
to the gallows.
Someone once said, "Sometimes you unexpectedly find your ultimate purpose in life hidden away in the heap of obstacles and failures one suffers along the way." Today I would not be able to teach, encourage, or stimulate you to power-up your business education if I hadn't been forced out of medical practice for financial reasons.
Now I understand why things happened like they did. I found a passion much stronger than I ever had while in medical practice.
It's a passion to make every practicing physician understand and implement the marketing and business tools that make it possible for every physician to create an efficient private medical practice that produces the income that satisfies every medical doctor's objectives.
These objectives for most physicians today are never fulfilled. I'm so sure of the importance of this chronically disregarded area of physician education that I just wrote a book about it titled,
"The Wounded Physician Project."
Read and Heed the most important rules of the medical practice business game.
Requirements for maximizing your medical practice income
1. Good knowledge of medical practice management
2. Having the energy for continuous medical practice marketing
3. Medical practice business planning is important.
4. Marketing for physicians and their office staff is a winning set up.
5. Learn what makes a medical practice business successful.
6. Your medical practice business system is essential.
7. Bothe practice marketing and physician marketing is rewarding.
8. Business success is the objective of all physicians in private medical practice.
9. My business website—www.marketingamedicalpractice.com
----Professional Probe----
"A good example of how one can use
the right words at the right time for the
right reasons--and accomplish the impossible
in spite of the verbal barriers."
Articles © 2013-2022/CGG INVESTMENTS LLC. All rights reserved. #61, 3-16-22
