What to do when things go wrong

Legally Speaking

Clifford Warren Lober

Dr. Lober is a dermatologist in practice in Florida and a partner in the law firm Lober, Brown, and Lober.

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As Bryan leans back in his office chair, his receptionist rushes in and tells him Jordan is calling and sounds frantic. Bryan begins the conversation.

Bryan: Hello, Jordan! It’s been a while since we spoke. How are you?

Jordan: Not well, Bryan. A patient of mine has ripped out the sutures I placed during a surgical procedure because he said the site itched so much he couldn’t stand it. He blames the itching on my having given him an ointment that I knew he was allergic to. My receptionist tells me he that he has an appointment to come in this afternoon and he is furious. What should I do?

Bryan: First of all, you need to check the facts. Do not assume anything. Did he really use the ointment you prescribed? Many medications have names that sound quite similar. Did the pharmacist fill the prescription correctly?

Jordan: I will certainly do that. But I’m afraid that I may actually have made a mistake. What else should I do?

Bryan: When he comes in, spend the necessary time with him even if you have to get behind schedule. If a patient was bleeding, you wouldn’t hurry out of the operating room to stay on schedule. Although I am aware that some of my legal colleagues advise scheduling the patient to return so that you have more time to spend with him, a patient who is livid may never return. If you don’t talk about his concerns when he is in your office, he may feel you are unconcerned or even callous. Your best (and possibly only) opportunity to discuss the situation with the patient in person is when he returns to your office this afternoon. Believe it or not, many times patients go to attorneys not necessarily to pursue legal action but to understand what happened. [pagebreak]

Jordan: When I speak with the patient what should I say or not say?

Bryan: Above all, listen to the patient. He will tell you exactly why he is angry. Always be honest. If it seems appropriate, reiterate the need for the procedure and any positive outcomes (e.g., the malignancy is gone) but do not go overboard and appear defensive. Clear up any misunderstandings or misconceptions.

Jordan: What should I do about the surgical wound?

Bryan: Always try to mitigate damages by addressing the patient’s medical needs. If he indeed reacted to the topical ointment perhaps he needs medication to relieve the itching. Maybe the wound needs to be re-sutured.

Jordan: How should I react if he tells me I am responsible for this situation?

Bryan: Although you may not want to deny responsibility, you should be careful not to admit liability. A statement such as “I am sorry I gave you the wrong ointment” is usually admissible in a legal proceeding.

Jordan: Does that mean that I cannot apologize? [pagebreak]

Bryan: That depends. Thirty-six states have “apology laws” which prohibit expressions of regret, sympathy, or benevolence from being entered as evidence of wrongdoing. They do not, however, usually protect you from an admission of fault. Therefore, if your state has an apology law, you may be able to say “I am sorry that you had that much itching.” An apology is usually appreciated by patients and conveys the fact that you are a caring, sympathetic doctor. Remember, patients usually hesitate to sue physicians they like. Apologizing may also be the ethically correct thing to do and help both you and the patient obtain closure. Remember to document the apology in the patient’s medical record.

Jordan: Great! If it is appropriate I will apologize.

Bryan: If you do so, remember that your tone, expressions, and body language will convey as much to the patient as your spoken words. You want to come across as caring and concerned, not hurried or arrogant.

Jordan: Is there anything else I might want to do?

Bryan: Yes. If after checking the facts you find that you did not make a mistake, you may want to suggest that the patient get a second opinion from one of your colleagues. You may even want to offer to call that colleague to facilitate the patient getting an appointment. This would not only reflect your genuine concern for the patient but also would reaffirm the appropriateness of your treatment decisions. [pagebreak]

Jordan: I will consider doing that. Do I need to report this to the Board of Medicine?

Bryan: Most state laws describe specific incidents that need to be reported, such as surgery on the wrong patient or wrong site. State laws may also specify that such incidents need to be reported only if they happen in a hospital or other inpatient facility. If a legal action is filed, however, many states require that the incident then be reported to the Board of Medicine.

Jordan: I understand.

Bryan: Remember that if you really made a mistake and prescribed the wrong medication you may need to report the incident to your malpractice insurance company. You have a duty to report adverse incidents and failure to do so may relieve the insurance company of its duty to defend you.

Jordan: Thanks, Bryan. I will do that.

Bryan: Jordan, also remember never to alter the medical records. Such an action would call your integrity into question should the patient pursue this matter. Finally, please call me after you see the patient so that we can discuss how it went.

If you have any suggestions for topics to be discussed in this column, please e-mail them to me at loberc@gmail.com. See the February 2013 issue of Dermatology World for disclaimers.



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