Litigation Prevention for Healthcare Practitioners: Have You Checked These 7 Boxes?

Roughly one in three clinicians has faced an allegation of medical malpractice. But before any patient harm or misunderstanding occurs, clinicians and practices can ask: Where are the gaps in our safety protocols? How can we tighten up our practice risk mitigation measures and prevent allegations or lawsuits in the first place?

1. Defensible Documentation

Documentation that would hold up in court can be instrumental in avoiding litigation. It serves as a crucial element for your defense, or alternatively, it could become a potential asset for the plaintiff's attorney. Many healthcare practitioners have imagined hearing their clinical notes read aloud in court. One way to avoid this scenario is to create documentation so strong that it stops the matter in its tracks. When a plaintiff’s attorney reviews documents during the discovery period, they’ll likely drop a case if they realize that their outcome will not be successful.

As technology advances with EHRs suggesting options such as which tests to order and which medications to select, it is important for practitioners to document their reasoning, particularly if they decide to deviate from the recommendations. Documenting your thought process can also assist in recall during litigation preparation.

Beware of modifying records. Haste is the enemy of detail, yet clinicians are increasingly hard-pressed to be “more productive.” This can lead to clinicians feeling, perhaps correctly, that their documentation of a particular case left gaps. But because EHRs track all changes made to the record and the exact time those changes occurred, practitioners must be careful to avoid giving even the appearance of tampering by making changes after a dispute has arisen.

2. Informed Consent

Reduce risks by adopting a structured, clinician-led model for shared decision making. Informed consent is not just the patient signing the form but truly understanding their treatment options. Clinicians can show the patient simple drawings, or they can incorporate the Agency for Healthcare Research and Quality’s (AHRQ’s) teach-back technique, but however the conversation goes, quality documentation of the informed consent discussion is crucial.

A simple note—“Risks, benefits, and alternatives discussed”—is a start, and adding an informed consent form is advised, but the best practice is to adopt and document a structured model such as the AHRQ’s SHARE approach:

• Seek your patient’s participation.
• Help your patient explore and compare treatment options.
• Assess your patient’s values and preferences.
• Reach a decision with your patient.
• Evaluate your patient’s decision.

3. Following Up on Test Results

Test tracking often depends upon the vigilance of individuals, yet even the most diligent professional can make a mistake. Missed test results can lead to diagnostic error, one of the top factors behind high-indemnity medical malpractice claims. Many EHRs include pre-built queries that can be executed to notify the medical team of unaddressed test results. It is essential to operationalize this process within the practice, establishing a clear schedule for generating the report, defining the timeframe covered, identifying the recipients, and outlining the procedure for distributing and following up on the information. This ensures that all test results are communicated and appropriately addressed. Too many outstanding test results awaiting review raises questions as to the practitioner’s diligence and can lead to delays in diagnosis.

Communicating about test results is a systems issue—with so many individuals and entities involved, it has to be. By approaching test tracking and follow up through a systems mindset, healthcare practices and systems protect their patients’ safety and reduce their own liability. The Doctors Company’s studies of closed medical malpractice claims have shown that clear organizational practices and protocols, carried out through staff training to reinforce expectations, are vital to keep patients’ results from falling through the cracks.

4. Astute Listening

A patient encounter that gets off to a slower start can arrive at the right result faster while building patient rapport—which mitigates liability.

Rapport with patients is not decorative. Rapport is substantive, and it diminishes liability. Clinicians know this, but time pressure can push them to interrupt a patient’s narrative too soon. This is counterproductive, because as seasoned practitioners know, letting the patient speak is an aid to arriving at a diagnosis not only more accurately, but more efficiently. If allowed to follow their train of thought, the patient is likelier to arrive at their presenting concern sooner, thus avoiding the dreaded “doorknob” question that necessitates restarting the exam.

5. Incidental Findings

Tackle incidental findings with a systems mindset and strong practice protocols. Incidental findings can lead to a cascade of unnecessary tests and treatment, and this is especially frustrating because incidental findings often don’t add up to anything worrisome—until they do. Studies of The Doctors Company’s data show that when ignored incidental findings culminate in patient harm, the harm is often severe.

There are many chances to ignore an incidental finding, but also many opportunities to recover. Those opportunities can best be spotted and seized within a setting of strong practice protocols. Protocols for addressing actionable incidental findings must ensure communication with both the patient and the practitioner. After the practitioner addresses the finding with the patient and further treatment or follow-up is prescribed, it should be integrated into the follow-up system to ensure completion. If an incidental finding is beyond the scope of the practitioner, a proper referral should be made to a specialist for the noted finding.

Following up on incidental findings is a systems issue, not one that can be resolved through individual vigilance, so practices can tackle these risks with clear protocols implemented through consistent staff training.

6. Communication Across Specialties

Teams that are struggling with cross-functional communication can ask: Do we need stronger communication skills? Or do we need to rethink our team structures?

Practices and organizations can promote top-of-license performance and excellent care through carefully considering role definition and authorization protocols. This helps with differentiating communication tasks that can be handled by others from matters best addressed by each clinician. Structure-based strategies for team communication grow only more vital as America’s healthcare landscape rapidly changes and practitioners coordinate care across specialties—and often across organizations and systems.

7. Artificial Intelligence

Do lean on an ambient scribe to create a draft note, but don’t close that note without reviewing and revising.

Some screen-weary clinicians hail ambient listening technologies as answered prayers, bringing them back to face-to-face conversations with patients. Nevertheless, practitioners must resist the temptation to over-rely on a tool’s draft documentation, because AI scribe confabulations occur so frequently that there is now an entire body of research devoted to their taxonomy.

In fact, preliminary studies indicate that the clinicians who are happiest with such tools may be those giving least attention to reviewing and revising their draft notes. This form of betting on AI will turn all too literal when, inevitably, an allegation of malpractice arises. AI lacks both medical credentials and common sense, so clinicians, while gladly taking back more patient-centered appointments, should not bet their patients’ safety or their own careers on AI’s unexamined outputs.

Surviving Litigation Seminars

Even when you follow the litigation prevention strategies discussed in this article, you still may face a lawsuit during your career. If that occurs, we offer the industry's strongest malpractice claims defense, which includes our Surviving Litigation Seminars—one way that we deliver superior support when our members face litigation.

Additional Resources

• Defensible Medical and Dental Records
• Terminating Patient Relationships
• Risk Management Fundamentals for the Practice Manager
• Insights and Resources from Leading Voices in AI