When a patient suffers a bad outcome or dies, the patient or family members turn to the physician for answers. Even though 'apology laws' in a number of states protect doctors' expressions of sympathy or empathy from being admissible in court, physicians frequently make comments during this stressful time that can cause serious damage to their defense, according to Don Karotkin, a malpractice attorney with Karotkin & Associates in Houston.
"I get these kinds of questions all the time," Karotkin told FiercePracticeManagement. He consistently warns physicians to avold the following three mistakes:
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Don't admit fault. "If you had a death or serious outcome, there is no harm in saying, 'I am terribly sorry that this happened,' but the word apology is a no-no," he said. "You can express empathy and sympathy when something bad happens, but do not go in and say, 'I'm sorry I wasn't paying attention.'" Although a few state statutes do protect admissions of fault from being admissible in court, many professional liability insurance policies include clauses excluding coverage for admissions against interest or confessing liability, he noted.
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Don't speculate prematurely. "Don't have a conversation with [patients or family members] about what happened until you know what you're talking about," Karotkin said. "Frequently, when there's a medical disaster, the physician doesn't know all of the relevant facts. Typically, things happen outside the physician's presence that he or she doesn't know anything about." So until a credible review of the facts is complete, avoid giving details you may learn to be different later. "It can come back to haunt you if you say the temp was 104 and it was only 101.3. What you don't need when you get sued is having to take back what you said and say something different."
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Don't alter medical records. "Do not doctor up records in response to a disaster." Following an incident, it's commonly tempting to "fix" elements of the record that weren't as thorough or accurate as they could have been. "A lot of times, when people are in a panic, it's really not that they are being dishonest, but they get scared," Karotkin said. "They run and get the records and say, 'I forgot to make a progress note so I should make one now,' or crossing out things they got wrong and rewriting." But making changes to the record is unethical, illegal and makes the lawsuit impossible to defend successfully, he said. "When you're tempted to pick up a pen and start doctoring, don't do it. Instead of picking up a pen, pick up the phone and call somebody who knows how to deal with medical disasters like your insurance company or your lawyer." - Deb (@PracticeMgt)
