Following a few simple rules may
help prevent malpractice claims
From the Canadian Medical Association Journal 1991:144 (3)
The following is an edited excerpt from a speech Roderick Barr, a
former justice with the Supreme Court of Ontario, delivered to the Lincoln County Academy of Medicine and the Lincoln County Law Association.
Being sued for malpractice is an upsetting experience, but it can be avoided. There are two simple rules.
First, you must talk with the patient beforehand - before you have prescribed drugs that may have side effects, before invasive tests, before surgery. The reason is simple. Most malpractice cases are launched after there has been a bad result the patient did not
realize was possible. Of course, almost no treatment is entirely without risk, but patients are still entitled to a
warning. This may be nothing more than advising them not to take a pill on an empty stomach because of possible ulceration, or it may be a full description of a surgical procedure and the risks attached to it. You do not have to frighten patients to do this, nor teach them a course in medicine. Doctors are quite capable of explaining medical matters in court in terms that laymen can understand, and I am quite satisfied that any physician can outline a procedure and explain risks without talking over the patient's head. Above all, do not leave the impression that a good result is guaranteed. You would simply be asking for trouble. It used to be said that you get your solicitor's advice and your a dilemma. The patient complains. The doctor does not know what the problem is or how bad it is and he feels obliged to use the tests that are available, but before beginning he should tell the patient why the test is indicated and what the risks are.
Indeed, the risk may be small. In an exercise test the risk of exercise-related morbidity is said to be 1 in 10000, and that is fine unless you are the 1. If that patient was not forewarned about the slim chance of damage, he may respond:"I was getting by, leading a quiet life. In my activities I would never have put my heart to the strain this test did and if you hadn't done this I wouldn't have had this heart attack." I realize that the doctor faces patients being injured by them. And fewer malpractice claims. And of course, a patient who prefers to hobble about with a hernia or to cling to a diseased gallbladder is entitled to make that choice. Your only obligation is to ensure that the patient is aware of the risks he is taking.
There are cases where a bad result is so unlikely that you might properly feel that to mention it to the patient would be a disservice, but the basic rule is this. If there is a risk and you advise the patient about it, the patient assumes the risk. If you do not advise the patient, you assume it. There is no reason why you should do that. In fairness, you should attempt to obtain the patient's consent well in advance. If the risk is substantial he should be given a reasonable opportunity to reflect on it, discuss it with his family, even seek a second opinion. Occasionally a patient will change his mind and there is nothing wrong with this - he may even be making a wise decision. I also urge you strongly to get the consent yourself. Never leave this to a nurse or technician because only you can answer questions authoritatively. Rule number two is equally, If not more, important. Through no fault of your own, sooner or later you are going to have a bad result. When you do, speak to the patient and his family. All too often the physician will not talk to the patient. If he did he could explain what happened and why and that the poor result was a freak complication. And that would probably be the end of it.
On the other hand, if you made a mistake you could help defuse the situation by speaking to the patient and explaining what happened: "It was an accident and I'm sorry." Many patients who would be inclined to sue will be calmed by the knowledge that accidents do happen and that their doctor is such a nice person they should not make trouble for him.
When I ran a legal practice I think I was consulted four or five times by patients who wanted to sue their physicians. In every case there had been an unforeseen bad result and the doctor had refused to talk to the patient about it. I came to realize that if the doctor will not talk about a bad result there is a good chance the patient will go to someone who will. The obvious someone is a lawyer. I have one last bit of advice.
If another doctor's patient has a bad result, be restrained in your criticism. We are all wise by hindsight, but the problems that are so obvious now might not have been at the time. Unless the earlier care the patient received was inexcusably bad, you do the patient no favour by informing him his doctor was negligent. He may launch a lawsuit because you said this, only to have a judge rule that the attending physician's lapse, while negligent by hindsight, did not constitute malpractice.
Finally, there are many fables in circulation among doctors about malpractice and these cause unnecessary concern among conscientious and careful physicians. Be assured that there is no malpractice explosion in Canada. And that the courts are not out to get doctors.
