Your Practice Made Perfect

This podcast series provides support, protection, and advice for today’s medical professionals. Brought to you by SVMIC, a mutual insurance company that is 100% owned and governed by our policyholders.

Jun. 29, 2018

Episode 022: Talk it Out

Host Brian Fortenberry and experienced claims attorney and risk reduction expert, Shelly Weatherly, talk about how to stay out of legal hot water amidst the stress and responsibility of patient care combined with the possibility of a lawsuit. Hear how clear communication and investing in the doctor-patient relationship can make all the difference.

Have a question about this podcast? Contact us.

  • Transcript

    Speaker 1: You are listening to Your Practice Made Perfect; support, protection and advice for practicing medical professionals. Brought to you by SVMIC.

    Brian: Hello and welcome to this week's podcast. I'm Brian Fortenberry, and in this episode, we're going to be talking about staying out of legal hot water. And what a prevalent topic to many of us, certainly for those in the medical profession because by its very nature, it's stressful, and the stress and the responsibility of taking care of patients, it's always there, and it's something that can certainly take its toll on physicians as they practice. Then you compound that problem with the potential for a malpractice lawsuit and it really can be stressful. But there are steps, there's things out there that physicians can take that can reduce their chances of being involved in litigation, and to help us get a handle on that and talk about that in this episode is Miss Shelly Weatherly. Thanks for being here.

    Shelly: Glad to be here Brian.

    Brian: Well, thanks. Before we really jump into our topic and get into the meat of the discussion, tell everyone, our listeners, a little bit about yourself and about your experience, time here at SVMIC.

    Shelly: Sure. Well, I am going into my 29th year here at SVMIC...

    Brian: There's no way.

    Shelly: Way. And I started out as a claims attorney, and did that for a number of years and then moved over to the risk end of things. Currently, I am the Vice President of our Risk Education and Evaluation Services department.

    Brian: And do a fantastic job.

    Shelly: Thank you sir.

    Brian: As we start here, what are some steps that physicians out there can take to reduce their chances of being involved in a malpractice claim?

    Shelly: Brian you really cannot have a conversation about risk mitigation without talking about communication and the doctor-patient relationship.

    Brian: Absolutely.

    Shelly: Decades of research confirm that roughly 75%, it really depends on the study that you're looking at but, 75 to maybe 85% of malpractice claims stem not really from a loss of life or limb, in other words from a bad outcome, but rather from a broken doctor-patient relationship. A broken doctor-patient relationship results when a physician either loses, or never had, the patient's trust or what I like to call the benefit of the doubt.

    Brian: That stands to reason. So in that scenario, how does a patient earn that trust or that benefit of the doubt that you are speaking of?

    Shelly: Well, it actually starts by creating a patient centered environment in the office, so that office staff, both from the business end of things and the clinical staff, understand the importance of treating patients with respect and with a caring and welcoming attitude, and not like they are a nuisance or an interruption to their work. And I get, I get that staff in a busy office are stressed, pressed for time, but the truth is, it doesn't take any more time to be polite than it does to be rude. And by showing that helpful positive attitude, they really can set the foundation for a good relationship before the physician ever sees that patient.

    Brian: And that's incredibly important.

    Shelly: It is.

    Brian: Because without that, like you were saying the communication breakdown, that can be detrimental to anything you do after there. But connecting the patient isn't always just second nature for the physician either, is it?

    Shelly: No, it really isn't. It's not how they were trained. They definitely don't have a class that teaches them how to connect with the patient, and unfortunately, the demands and the stresses of their training in both med school and in residency, which is really more about churning out competent clinicians and surgeons, just serves to kind of beat down the empathy that they started that process with. And empathy is at the core of connecting with patients.

    Brian: You're right. Can that empathy be taught? Can those interpersonal skills be taught, or can that empathy that we talked about that was lost, can that really be regained, that focus of why you went into medicine?

    Shelly: You know I believe it can, even if interpersonal skills are not something that happened to come natural to a physician, there are a number of things that I recommend that I think can help him or her build that rapport and trust with the patient.

    Brian: Why don't you go ahead and share a few of those with us if you could then?

    Shelly: Okay well, common sense things like first, knock on the door before you enter an exam room. That's just common courtesy, but before you even enter the exam room, I tell physicians either review briefly the medical record or have a brief huddle with your nurse to get a sense for why the patient is there. Because I personally find it fairly annoying when a physician walks in the exam room and says, “So Shelly, what brings you here today?” When I just spent three minutes telling his nurse what brought me here today. So, I'd rather have him come in and say, “So Shelly, I understand... You know my nurse tells me, you've been really struggling with a respiratory crud here for the last two weeks. It's now settled in your chest and you've got a nasty cough. Let's take a look and see where we can go from there.” Don't you think that sets a much better tone?

    Brian: Absolutely. I mean, it just makes sense, doesn't it? Because if you walk in that office and you're treated like not just another patient.

    Shelly: Exactly.

    Brian: That you're treated like an individual that has complaints and they really care, it does make a difference.

    Shelly: Exactly. And then I think it's important to greet the patients warmly. I like a personal touch. Actually I used to say, when you go in maybe just a pat on the back, pat on the shoulder, but quite honestly with this cultural reckoning that we are seeing these days over objectionable touching, it might be that now the safer course is to maybe do what I like to call the two hand handshake, where the patient extends his or her hand and you kind of clasp it between. I feel like that's a little warmer and a little more personal, in establishing that connection. And then I tell physicians just sit. Sit down, look them in the eye. Sitting suggests you're not rushed, even if you spend a couple minutes with them, it will feel longer because you're sitting. Looking them in the eye says, I'm giving you my full attention.

    And then let them talk and express their concerns and their expectations for the visit without interruption. That is not always easy for physicians to do. There are plenty of studies out there that show that patients really are allowed to talk for maybe 18-25 seconds before the physician will interrupt them, because they're just trying to get on with the visit. But if you do let them talk without interruption, it shows that you value their opinion and their feelings and you just might get an important tidbit of information that's going to help you manage their care.

    Brian: Yeah, absolutely. It just makes sense, and that does make a difference. What type of things, when we start looking at this, there's going to be certain documents that you have to obtain, from informed consents to things like that. What type of thing should a physician discuss when they're having these discussions?

    Shelly: Are you maybe referring to like an informed consent discussion?

    Brian: Yes, yes. Exactly.

    Shelly: Sure. I think that's really important that they do engage in a meaningful patient education informed consent process. I think physicians are well aware of their legal and ethical obligation to give patients sufficient information with which they can then make an informed decision about the course of their medical care, that's just a legal obligation. But I think what they overlook often times is the opportunity that, that discussion provides them to really build some rapport to engage the patient in that discussion. It also serves I think to better achieve compliance, because you're engaging the patient-

    Brian: Great point.

    Shelly: … in their care. And let's just face it, a compliant patient is less likely to have an adverse outcome, and if they don't have an adverse outcome, what are they going to sue you for?

    Brian: Right. You're reducing your risk just by doing that.

    Shelly: Well, that's exactly right. So again, I think a good informed consent discussion is helpful in a couple of different fronts in preventing litigation.

    Brian: And just the educational value, if nothing else. So with that in mind, can you give us an idea, maybe an example of how that talk might go, what that might look like?

    Shelly: Well sure. What you're going to want to do, is talk to them pretty much about the nature of their condition. You'll want to talk about your treatment recommendation, what options are available, what alternatives may be available. So say you've got somebody who has gallstones.

    Brian: Okay.

    Shelly: So the talk may go something like, “So Shelly, the abdominal ultrasound that I sent you for does show that you have a number of stones in your gallbladder. Now the good news is, we now have a reason for the intense pain that you have been experiencing, and we've got a couple options here. The first might be to treat with medication, there are medicines, there are drugs out there that can serve to dissolve the stones. But you got a lot of them, and it could take anywhere from several months to a year before we can get those taken care of and the truth is, it wouldn't take care of it permanently, in all likelihood they do reoccur. So the second option, which I'm recommending, is surgery. Go ahead take your gallbladder out, I would do laparoscopically, and that is, I would make four small incisions in your abdomen.” And the truth is here Brian, I think a good tool to use is maybe a diagram and you actually show them, draw out where these incisions are going to be.

    Brian: Okay. Sure, yeah.

    Shelly: And just say, “Through these four incisions where I will actually then insert instruments, take your gallbladder out. Your recovery time will be brief, maybe five days to a week. It's outpatient, so you won't have to be in the hospital. And then it will permanently deal with this problem. There are some risks, doesn't happen often but with any kind of surgery, you might be looking at some bleeding, some infection. Some of the organs around the gallbladder as I'm taking it out could get nicked, but again those are very rare, this is a very common, very safe procedure. Now, if for any reason either there's maybe some inflammation that I haven't anticipated, or anatomically there something with you that makes it hard for me to take your gallbladder out that way or I don't feel it safe, then I would have to do an open procedure, just so I can maybe get a broader view of everything.

    The risks are pretty much the same with the infection and the bleeding, possible injury to adjacent organs, but the recovery time would be greater. And I want you just to know that, I don't think it's likely to happen, you're a great candidate. You haven't had any prior abdominal surgeries, you're in great shape, I think this will work. But I just want you to know that, that is a remote, remote possibility so you won't be shocked if it happens. And if instead of being home that night, you have to be in the hospital for four days or five days because that's what will happen in an open procedure, and the recovery time it's not a week, it's more like four weeks to six weeks. But again, I don't see that happening, I just want to share you know all information so that you're fully informed.”

    And then you look at them and you basically just say, “Now, I know that this is been a lot of information. As soon as you heard the word surgery, I'm sure there was some anxiety and maybe just processing everything is a little tough, so I'm going to give you this written material. Take home, share with your family. If you have any questions call the office, either your nurse or I will answer any questions that you have. In the meantime before you leave here today, is there anything else that I can answer for you? Any concerns that you have.” Can you see how just the very nature of that conversation helps engage the patient and helps with that connection?

    Brian: I absolutely can. It does so much for the patient, just knowing that opportunity to educate, and I feel like you as the physician haven't just checked the box a legal obligation, you've really informed me of what's going on, and what's at heart. Now, one thing I did want to ask you about here, is you talk about those complications and that's always a tricky part I'm certain, when you're having to talk to patients, but what happens if one of the complications you talked about unfortunately comes to bear? It happens. Do you have any tips out there that you could help of physician regarding what to do in the event of an adverse outcome, because unfortunately, it's just going to happen sometimes.

    Shelly: You're right, it is. And an adverse outcome when it does happen, it can stress that doctor-patient relationship. In general, my recommendation, which is in line with the AMA code of ethics, and that is that a physician should at all times deal honestly and openly with patients, and provide all of the facts that they need to assure that they understand what has occurred. Now, there are some specific steps, first of all should go without saying but go ahead and deal with that patient medical needs. Then be accessible, and be supportive of the patient and the family. Too often, patients who experience these bad outcomes, they just feel that their health care provider is being maybe evasive and defensive, rather than direct and helpful in providing the information and the answers to their questions, and you sure don't want them trying to get answers to their questions by going to see a lawyer.

    Brian: Yeah. No kidding.

    Shelly: So next, I think it's important to express empathy, sympathy and then offer an explanation. So it might go something like, “I was sorry to hear that you are having such a difficult experience. I can only imagine how upsetting and confusing this must be to you. Would it help if I explain why I didn't order that MRI earlier, or that lumbar puncture earlier? Or would it help if we go over the steps in the care so that you can better understand how this happened?” Again, I think while an adverse event is clearly challenging, avoiding defensive behavior and comments, and then showing empathy and support is going to serve to preserve that patient's trust and the benefit of the doubt.

    Brian: And you have to think, just looking at it from a personal perspective, even if something went wrong, if I felt like the physician communicated well with me, and expressed to me exactly what happened and there was that dialogue, I've probably got more forgiveness on my end, even if there is an adverse outcome. Now, Shelly, what do you recommend if there is though this clear medical error? It's not a gray area, it's clearly a medical error that happens.

    Shelly: You operate on the wrong leg.

    Brian: Right, right.

    Shelly: It is what it is. And patients want to hear a full and honest description of how that could happen. They want an apology, they want to know that the problem will be fixed, and they want their provider to be accountable, and to know that you're going to be there to stand by them and help them through this. And having a prompt open discussion of what happened, is crucial before they hear it from another source or, again, before they go visit a lawyer.

    Brian: Absolutely. I think you have done a very good job of covering what should be done in this type of scenario, establishing and maintaining this good relationship with your patients. So what else can physicians do out there, our listeners and policyholders to stay out of as we say, legal hot water?

    Shelly: Well, give good attention to your documentation.

    Brian: That's a big one, I guess.

    Shelly: It is. A properly documented medical record can certainly be a powerful defense weapon in the event of a malpractice lawsuit, because it's objective, and because juries trust it. After all it's a witness whose memories never fade.

    Brian: True. Very true.

    Shelly: But further, a properly documented medical record could even prevent a lawsuit from ever being filed. Laws vary, different states have different laws, but before an attorney files a malpractice lawsuit, they have the obligation to exercise some due diligence, to see whether or not there's really some merit to this. And that involves requesting the medical record and reviewing it. And if they review a medical record that is so clearly and completely documented, that not even say creative interpretation would support a theory of liability, they just may decline to file it. Unfortunately, I have seen plenty of physicians turned into defendants because their record just did not properly reflect the level of care that they gave.

    Brian: You probably as you said could stay out of some lawsuits and litigation just on the fact of this excellent documentation. So building on that, what should a physician's documentation look like? What should it include to be that, as you said almost beyond reproach type of documentation?

    Shelly: Well, the simple rule is to document clearly, completely, timely, professionally and accurately. And you sure want to avoid any shenanigans that might call into question the credibility of the record such as maybe late entries that aren't designated as such or alterations.

    Brian: Like you're doctoring it. I guess -

    Shelly: Well, you do, you do. And especially if you go back in and change something after there's been a bad outcome, that's just going to look self-serving and call into question the credibility of the entire record. Now, some things to specifically include, a comprehensive medical, family, and psycho-social history, the chief complaint or the purpose for the visit. You'll want to document the clinical assessment, and be sure to document the full extent of the assessment. So for instance, say a child comes in after a fall on a playground complaining of a sore wrist. The assessment is probably going to include the entire upper extremity, if that's the case, be sure to document that. Often times we might just see, “Wrist examined, nothing found,” or something like that or “sprain” kind of thing.

    So then when the child comes in a month later complaining of an elbow that hurts, if you don't have that documentation you can't establish, "Well, I looked at that a month ago and everything was fine, so this must be related to something else." Kind of thing. So you want that completeness, whatever the extent of the assessment is, be sure to document that. Then you want to document all relevant positive and negative findings. And when I'm referring to negative findings, it's really those that are customarily documented. An example would be say fever, is an important positive finding in a patient at risk for infection. So if there's no fever, then it's customary to see, I see it all the time in medical records, that the patient is afebrile.

    At the same time, chills would be an important positive finding, but it is not customary to document or even ask, so to document the absence of chills, so that's not something that you would normally document. So it's just what is customary to document. And what you're going to be looking for, if you don't find it document it. Then you'll want to document a diagnosis in the medical impression and the rationale for your decision making process, if it's not obvious. For instance, if you're going to prescribe pain medication for a bone fracture, I'm not normally going to see in the medical record, "Prescribe this for pain.” That's obvious. However, if you discontinue a medication because of adverse reaction, you'll want to document, "Medication discontinued for adverse reaction," and you want to document the extent of it. Was it just simply the patient developed a rash, and then had some itchy spots, or did they go full on anaphylactic? That's an important distinction to include in your documentation.

    And then let's see. All pertinent in person and telephone conversations with patients and family should be documented, otherwise you could find yourself in a swearing match with the patient as to what was discussed. And before I came in here, I actually ran across a couple of pediatric examples, that will illustrate the importance of having that telephone -

    Brian:  That'd be perfect.

    Shelly: ... Yeah. Well, the first involved a physician who failed to document information that he gave to the parents regarding possible risks and side effects of this antibiotic that he prescribed for the very first time for a 12 month old child. Child ends up suffering an anaphylactic reaction, requires hospitalization. And the lack of documentation, of course, then created this swearing match, and then it just bolstered the plaintiff's argument of negligent care, and the mother's argument that she might have recognized a little more quickly that something was wrong had she been made aware of these side effects.

    The second case involved the failure to document late night instructions given to mom, to take her child who had a 104 degree fever and had a history also of a kidney transplant, immediately to the emergency room. The child was not taken until the next day and that was just when she became non-responsive. She further deteriorated in hospital and, was really sad case, she ended up dying from septic shock secondary to a UTI. Mom claims that she was told the child likely had a virus and that there was no reason to take her to the emergency room. Of course, the physician claimed otherwise, contemporaneous documentation of his instructions would have I think greatly aided in the defense of the case, which we ended up having to settle.

    Lastly, I just want to make a couple of points specific to electronic health records.

    Brian: Okay yeah, because that's a big thing out there today.

    Shelly: Well it is, and by far and away the majority of physicians are using, obviously, electronic health records. And it's important that physicians review and correct all of their documentation that might have either auto-populated, or been carried over from a previous visit, just to ensure that it's an accurate reflection of what's currently going on. And then likewise, make sure all defaulting data that's associated with templates has been reviewed and is edited to include only the information that's associated with this particular visit.

    Brian: And as you're going through that list, I'm thinking, "Yes, all of this makes sense," especially in light of the fact that we were talking about your documentation is probably your best witness if litigation is ever filed, because I'm sitting there thinking about, man, having to go back and explain why or why not, and you're saying, "Well, I meant this when I wrote this." Whereas if you had put it in there and written it clearly, there is no debate. It's just there then.

    Shelly: Well, and remember, lawsuits you may be called on to testify as to what happened three years, four years down the road. So truly trying to rely on memory when you're seeing 20 patients a day and remembering that specific patient, at that specific time, no jury buys you can do that.

    Brian: I can't tell you what I had for lunch last week, much less what happened three or four years ago. What about office systems and processes? How do they relate to the malpractice litigation? Because I've got to think it has some bearing.

    Shelly: Well, it does. Failure to diagnose continues to be one of the top allegations that we see in our claims but, most often, that failure doesn't have anything to do with how the physician is trained or their clinical abilities. It really has to do with the fact that they're operating in poorly designed systems. And juries are not particularly forgiving of process and systems failures. They're willing to give some grace to physicians who made the wrong medical decision that seemed reasonable at the time based on the information they had, but they're pretty unforgiving when it comes to systems errors, because they view them as avoidable. And the failure to implement these systems, as just being careless.

    Brian: Well in light of that, what are some of the best practices, Shelly that you know about, that would help prevent some of these failures that juries could potentially look at as careless?

    Shelly: Well, there's a list of them. So let me run through as quickly as I can. First, officers should have an effective tracking method for all lab tests, diagnostic imaging and referred patients. A misplaced or lost test result that might have changed the physician's approach to a particular patient's problem, is a common theme that we continue to see at SVMIC with our claims. And whatever tracking method is chosen, it should be used consistently across the practice. So whether you're using a log system, a tickler system, an appointment scheduling system to track or an electronic system, having one system used is especially important on days when staff absences require employees to assist a provider with whom they might not be familiar.

    Then in order to ensure proper follow up for patients who require a return office visit, the practice should schedule them before they leave the office. You can't always do that, patients like, "I don't really know what I have next week, I'm going to need to call you and schedule." But you should have a system in that event, so that staff is alerted to make appropriate efforts to reach those patients if they don't call back and schedule that appointment. I also think it's good practice for physicians to review all no-shows and cancellations to determine appropriate follow up. And maybe not every no-show requires follow up. Say you've got somebody who was in last week for allergy issues, flare up of allergies, you schedule them to come back this week just to make sure the medication adjustment is working, they don't show, you're going to go, "Ah, that's working. Probably don't need to call them to come in." But if it's the patient who was supposed to come back after you sent her for a mammogram for a suspicious breast mass, you're going to follow up on that patient. And it's just the physician to be able to make that decision.


    We recommend having a policy to notify patients of all test results and to instruct patients to call the office if they haven't received those results within a specified period of time. Speaking of test results, be sure to implement a system that ensures that abnormal results are flagged, so they don't get inadvertently filed away someplace without a physician seeing them, and taking the appropriate action. If you're using electronic tasking system for interoffice communication, you need to be sure to have a surrogate reviewer who is assigned to open task boxes of people who are out. You don't want some significant test result to be sitting in the box of somebody who's out for a week. So you want to have that in place. Now, what also helps keep that from happening is to educate staff that you don't put alarming test results in the task box, you communicate them directly.

    Brian: You know, this is a fantastic list and I think worth putting in our show notes below our podcast. Let's shift gears a little bit, the perception is that medication errors accounts for an enormous percentage of medical liability claims nationwide, is that the case still?

    Shelly: It is. It is true, and it's not only on a national level. Additionally our data at SVMIC confirms that medication related issues are a leading cause of claims. And I don't really expect that trend to wane, as physicians are required to see more and more patients, patients are moving between insurance plans and providers, so I think it's going to continue to be an issue for some time to come.

    Brian: With that being said, the magic question then is, how do we get physicians and other health care providers to protect themselves from these possibility of these medication errors then?

    Shelly: Again, there are some steps that they can take. First, take a complete medication history at that first office visit and then be sure to update it at each subsequent visit. Also, you want to review and update allergies at every visit, and whenever you're going to prescribe a new medication. We also advise our policyholders to make it a practice to prescribe medications only after reviewing the record, and then to require physician approval for medication refills. Additionally, you should have a discussion, just like we talked about that informed consent discussion with regard to the procedure. Well, you want to do that too with medication. You want to talk about the side effects, the benefits of, the alternatives to prescribed medications. Particularly if they're high risk like your anticoagulant or your benzos, opioids, that type of thing. And then be sure to have a system that closely monitors patients on medications that have a known toxic side effect. Lastly, I would say make sure that clinical staff who administer medications are trained to adhere to the Five Rights.

    Brian: Five Rights. Okay, now what is the Five Rights?

    Shelly: It's a safety measure that nurses use to prevent medication errors, and it represents verifying that you have the right patient, that you're giving that patient the right drug, in the right dose, the right route, which basically is just the means of delivery, so you're giving it in pill form, injection or IV. And that you're giving it to him at the right time. And I think there's substantial support for the fact that following the Five Rights has served to reduce medication errors.

    Brian: Shelly, I'll tell you what, this is been fantastic. We've covered a lot of ground here, and a lot of information that is, I would say, paramount to being able to one either make sure you find yourself either not in litigation, ways to prevent yourself from getting there, or if you find yourself there, some ways that you can really protect yourself by the good documentation and the communication, and those types of things. So much information, I think we certainly have some lists and some things here that we could provide in our show notes for listeners out there, to maybe get more information about that. Also, if they were to have additional questions, or want to reach out SVMIC for more information, could they contact you or your department? Who do they need to contact?

    Shelly: Oh absolutely, you can call the general number and ask to speak to anybody in Risk Education or Risk Evaluation Services. Typically those calls are going to go to the Assistant Vice President of either department, but I am happy to answer any questions as well so they can ask for me directly.

    Brian: Well, fantastic. Shelly, thank you so much for being here today.

    Shelly: Not at all. Thank you Brian, I enjoyed it.

    Speaker 1: Thank you for listening to this episode of Your Practice Made Perfect with your host Brian Fortenberry. Listen to more episodes, subscribe to the podcast and find show notes at The contents of this podcast are intended for informational purposes only and do not constitute legal advice. Policyholders are urged to consult their personal attorney for legal advice. And specific legal requirements may vary from state to state and change over time.

The contents of this Podcast are intended for educational/informational purposes only and do not constitute legal advice. Policyholders are urged to consult with their personal attorney for legal advice, as specific legal requirements may vary from state to state and/or change over time. All names have been changed to protect privacy.

About our Guest

Shelly Weatherly

Shelly Weatherly is Vice President, Risk Education and Evaluation Services for SVMIC. Ms. Weatherly graduated from the University of Tennessee School of Law, is a member of the Nashville and Tennessee Bar Associations, and has been with SVMIC for 26 years. Prior to joining SVMIC, Ms. Weatherly served as Law Clerk on the Tennessee Court of Appeals for the Honorable William C. Koch, as well as on the U.S. District Court for the Middle District of Tennessee under the Honorable Charles Neese. Ms. Weatherly leads SVMIC's Risk Education and Evaluation Services. Prior to 2015, she developed and administered the company's Risk Evaluation Services and earlier served as a Claims Attorney. She is a frequent speaker on risk management, liability assessment, and professional liability topics at medical professional association meetings, medical schools and residency programs, and industry seminars.

About our Host

Brian Fortenberry is Assistant Vice President of Underwriting at SVMIC where he assists in evaluating risk for the company and assisting policyholders with underwriting issues. He has been involved with medical professional liability insurance since 2007. Prior to his work at SVMIC, Brian worked in the clinical side of medicine and in broadcast media.