Avoiding Malpractice Claims and Licensing Board Complaints

A malpractice suit or licensing board complaint can suck the life out of a practice and the people who work in it. The costs of defending lawsuits and complaints go well beyond those measured in dollars. The toll is arguably greater when calculated in terms of demoralization, loss of self-confidence, negative public relations, and loss of employee loyalty.

Prevention is the key to managing malpractice complaints. Although it is hard to imagine a licensed professional intentionally committing an act or omission that would lead to a complaint or litigation, such acts and omissions occur more frequently than we may realize. No professional is “on their best game” all the time. Professionals who continue to render services when they are at a low ebb place themselves at a heightened risk of making mistakes, so systems must be in place to prevent such mistakes.

Nor is anyone able to unfailingly maintain a professional persona. Psychotherapists use the term “countertransference” to describe their emotional and behavioral responses to their patients. The patient who, even subtly, reminds you of someone else in your life sends cues to which you will naturally react. Sometimes the reactions are unwarranted and counterproductive. There are steps you can take, such as frequently using the patient’s name and maintaining eye contact, to help minimize such reactions.

As a healthcare professional, you are in the business of taking care of people who often are not at their best. We know that people regress when they are ill, injured, scared, or grieving. Patients who are suffering can bring irrational expectations and heightened sensitivities into their relationships with those who are trying to help them. Sometimes this manifests as harsh words. Responding in kind simply invites trouble and puts the patient in charge of the tone of the interaction. Prudent healthcare entrepreneurs maintain control over the tenor of their office and the tone of their relationships with others. There is no value to getting into a squabble with a patient, even if they have hurt your feelings or offended you.

Nor is it often helpful to “correct” a patient’s misperceptions or mistaken opinions. When people are corrected, they become defensive and begin to see the source of the correction as an adversary. Instead, when you think it is important to address a misperception or mistaken belief, do so by acknowledging the patient’s perspective and then sharing your own. Stick to the facts so as to move the discussion out of the realms of emotions and opinions. Leave it to the patient to work out the differences.

One step toward preventing malpractice claims and complaints involves understanding some of the myths surrounding them. One common myth is that “it won’t happen to me.” Some may argue that this naive opinion is inherently arrogant. In fact, professional arrogance is a common thread in many patients’ complaints. On the other side of the coin, the professional who approaches each patient as a potential litigant will miss the mark and increase the risk for error and the room for patient discontent. The savvy healthcare entrepreneur “assumes the best and prepares for the worst.”

Professional arrogance comes in many forms. As discussed earlier, a belief that one professional is somehow so different from the rest of their colleagues that they will never be sued or aggrieved is one example. A close “cousin” is the belief that the professional’s relationship with each patient is so special that the patient will hold the professional harmless regardless of what happens. True, many patients are more protective of professionals with whom they have a good rapport, but good rapport does not make the professional bulletproof. The line between arrogance and confidence can sometimes be thin.

Professional arrogance also comes into play when professionals, understandably trusting of their own informed opinions on a matter, are overly zealous in their efforts to drive a patient toward a specific decision. What may be the technically correct decision may not be the correct decision for that patient at that time. The prudent healthcare entrepreneur is a trusted advisor who informs their patients, all the while respecting the patients’ rights to self-determination.

Another myth is that most lawsuits are frivolous. In fact, most have some basis in a real or perceived loss for the patient or the patient’s family. Granted, the magnitude of some of the financial awards doled out in successful malpractice suits can be out of proportion to the loss, but that does not mean the patient had no reasonable basis for legal action. Malpractice suits and complaints damage your practice. Best practices demand that no patient concern be treated as trite or frivolous.

The prudent healthcare entrepreneur can take some other reasonable steps to minimize the likelihood of a patient lawsuit or complaint and mediate the damage when a complaint is filed. The first and perhaps most important step is to maintain a positive, compassionate, professional relationship with your patients — all your patients. The patient with whom you find it most difficult to form a bond may be the patient most likely to take action against you.

Communication is another valuable risk management tool. It is easy in the course of a busy day to get so focused on the core tasks associated with a patient contact that you forget to make a meaningful connection with the patient. Giving the patient the opportunity to tell you a bit about their life beyond what is ailing them can go a long way in the right direction.

Consider what an encounter might feel like from the patient’s perspective when the patient has an opportunity to tell you a bit about their child’s latest achievement or express a concern about how whatever is ailing them might affect their job, marriage, or longevity. True, the extra time you spend listening is time you could spend providing another billable service, but what good is that extra revenue if it is lost to defending and paying out a settlement in a lawsuit?

Documentation is another important tool in risk management. Documentation starts with informed consent and, in broad terms, means communicating to the patient what they will be experiencing, why, and with what risks. Informed consent includes apprising the patient of business practices the patient will be obliged to follow, as well as providing information about clinical procedures and their alternatives.

Providing informed consent can be a challenge, because patients have different tolerances and needs for knowledge regarding their own healthcare. Nonetheless, from a liability management perspective, it is best to provide your patients with detailed information so they can assess their options and be truly well informed.

Written information should be provided in basic terms. Although there are no hard and fast rules about this, there are good reasons to provide written informed consent documents at a level a 12-year-old could understand. Videos in which the treating professional or a colleague explains a procedure can be a helpful adjunct in this regard. Because no written form will address every question every patient might have, it is important to ask each patient if they have any questions about what they have seen, heard, or read.

Another aspect of documentation involves charting. A patient’s recollection of the “facts” will invariably differ from the recollection of the treating professional. As a rule, the longer the elapsed time between a procedure and the need to recall the procedure, the greater the distortion in everyone’s memories. Chart notes should record each interaction with the patient in enough detail to keep the memories accurate. Ambiguity is the enemy. Where there is ambiguity, patients, juries, and disciplinary action boards will fill in the blanks with assumptions that best fit their own biases.

In conclusion, avoiding malpractice claims and licensing board complaints requires a proactive, patient-centric approach rooted in compassion, clear communication, and meticulous documentation. Healthcare professionals must strike a balance between confidence and humility, fostering trust while respecting patients’ autonomy and perspectives. Building strong patient relationships and maintaining professionalism, even in challenging interactions, can significantly reduce the risk of legal disputes. Ultimately, the prudent healthcare entrepreneur assumes the best, prepares for the worst, and prioritizes ethical, transparent practices to safeguard both their patients and the integrity of their profession.

Excerpted from Lucrative Practices: The Comprehensive Handbook for Healthcare Executives (American Association for Physician Leadership, 2021).