Doctor, If Accused of Malpractice, Here Is What NOT to Do

“I just joined my father’s medical practice as an internist. The first day on the job he sat me down and said, ‘At some time you will make a mistake. Every physician has. Our reputation for honesty precedes us wherever we may go. Never forget that. Learn what to do – and especially what not to do – in the event someone claims that you have committed medical malpractice.’

“Mr. Beaver, I have read your column for years and I’ll bet you know the right attorneys who can provide that guidance. Thanks, ‘Aaron,’ Southern Florida.”

I ran this important question by two of the nation’s most respected medical malpractice attorneys, both based in Southern California:

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• Gary Gelfand represents plaintiffs in malpractice cases and is an adjunct professor at Loyola Law School in Los Angeles, teaching the fundamentals of medical malpractice litigation.
• Dennis Thelen defends physicians and other health care providers in civil litigation, and he has tried over 100 cases to successful jury verdicts for his clients.

They gave me a by-the-numbers list of a few things health care professionals should never do in the event they are accused of or sued for medical malpractice, the definition of which is failing to meet the appropriate standard of care resulting in injury to a patient.

Never Alter the Record Afterward

Gelfand: Never change the record. Many states have health and safety code rules that prohibit the doctor from lying in medical records. Doctors have to be truthful. When they aren’t and it is discovered, it can be considered a crime. Even if there may be an explanation for what went wrong in caring for the patient – how the patient was hurt – that clears the physician, the fact of altering the medical record can destroy their credibility.

Thelen: It is not illegal for medical professionals to make honest updates to records, as long as they properly mark what they are doing, do this promptly and do not hide information. However, accessing the patient’s chart days later and making an after-the-fact entry – even if labeled as a ‘late entry’ – is highly suspicious. When this happens, it looks like you are attempting to forge or alter the medical records.

In a malpractice context, if you do label it as late entry, it invariably involves the subject matter of the suit, and looks as if the doctor is making a self-serving entry. So there is really no good time for the physician who thinks they are about to get sued to go to the patient’s chart and add additional content.

Both attorneys stressed that today almost all medical and hospital records are electronic. If a suit is filed, and there is a question about the reliability or veracity of the record, an audit trail of the electronic record is easily obtainable. It can always be learned who accessed the record and when.

Never Lie to the Patient

Gelfand: A physician who lies to the patient or the patient’s family about what happened, what he did or didn’t do, invites trouble. Additionally, trying to push the blame off on someone else, such as, “I checked this, but Dr. X failed to keep tabs on...” runs a great risk of it backfiring. Juries respect the truth and not someone who tries to wiggle out of responsibility.

Thelen: My advice is to not create an excuse or begin a scenario, such as “God took your husband,” or “It was his time,” in the hope that the family will accept that and do nothing.

Honesty has never gotten a doctor in worse trouble than by being dishonest.

Never Admit the Error and Apologize? It Depends on Who You Ask!

Gelfand: The New England Journal of Medicine found a large correlation between physicians who admit the malpractice, and the patient or patient’s family excusing the doctor because of their honesty and the fact that they were told the truth. However, the obvious downside is that admitting the error can be used against the doctor in subsequent litigation.

Addressing that problem, many states have passed what are referred to as “I’m sorry” laws, which encourage full disclosure of mistakes or errors in judgment by eliminating physicians' and hospitals' fear that their admissions will be used against them in court or other disciplinary proceedings.

Thelen: There is a huge difference between calling and expressing sympathy or apologizing for a complication and telling the patient that there was malpractice. That is both a medical and legal determination. When these calls are being made, it is usually when everyone is emotional, grieving and experiencing great sorrow, including the physician.

So you are advised as a doctor not to make expressions of responsibility, because that is so often yet to be determined.

The Bottom Line: Juries Still Respect, Trust and Protect Physicians

Certainly malpractice does occur, but I learned in speaking with both attorneys that studies looking back over the past 20 years of jury verdicts show that nearly 80% of all physicians who allow a jury to decide their cases come out winning.

The take-away is that jurors will protect competent, hardworking doctors who make a mistake that is a reasonable mistake. That is the difference between being negligent and simply being human.

Jurors are instructed that a reasonable error is not malpractice. If it was, the standard of care would require perfection, which is impossible to achieve.