Should I examine and reject patients who might sue?


An obstetrician / gynecologist in California had an impeccable track record until an incident with a patient who had often been sullen and often complained. When the woman gave birth, the doctor gave birth to the baby, who was born with a birth defect. Although there was no evidence that the doctor was responsible, the patient sued.
Being named in one or more liability claims during the professional career is an expected occupational risk of practicing medicine in the United States. No wonder doctors are looking for ways to prevent that, including trying to discover the patients most likely to sue.

Can patients who present legal risks be evaluated?
"Patients can self-select their doctors, and it is important, to some extent, that doctors self-select patients," said Joseph Scherger, MD, MPH, former vice president of primary care and academic affairs at the Eisenhower Medical Center in Rancho Mirage. California

In general, office doctors are not required to treat anyone who crosses their threshold. The Principles of Medical Ethics of the American Medical Association establish that "doctors have no ethical obligation to accept all possible patients." WADA adds: "Physicians should be thoughtful when exercising their right to choose who to serve."

Scherger warns against taking this skill to the extreme. "I am not a person who ever fosters the attitude that patients want to sue him. It is not a very good patient-centered care and patient-centered thinking," he said. "I often advise doctors to make sure they take care of the people they enjoy."
Because there is a lot at stake (financially, psychologically and professionally), many doctors try to protect themselves by detecting patients prone to file lawsuits. In fact, Medscape's 2019 Medical Malpractice Report revealed that 14% of respondents who had been sued said that, in retrospect, the only thing they would have done differently was not to take such patients in the first place.
Some doctors and lawyers advocate interviewing potential patients for general adjustment and risk in particular. Still, few believe that a doctor can dodge this proverbial bullet through detection alone.

"It's a difficult issue because everyone wants to avoid the patient who is the landmine," said Michael Sacopulos, JD, CEO of the Medical Risk Institute, who also serves as general counsel for Medical Justice Services. "But, of course, doctors spend their entire education and career trying to help people. The idea of ​​rejecting someone is not very pleasant for most doctors. But it is not a demand either," he said.

The idea of ​​rejecting someone is not very pleasant for most doctors. But neither is a lawsuit.
Michael Sacopulos, JD

Sacopulos said it is useful to focus on the behavior of a possible patient, especially the behavior towards the staff. "I had a front row seat in hundreds and hundreds of medical malpractice cases," he said. "I can't say how many times I've heard doctors say that when paperwork arrives, the staff is not surprised."
His theory about why doctors are not informed before is that patients tend to behave better in front of doctors and that they reveal their true or less inhibited personalities with employees. Therefore, practices need mechanisms to listen to staff concerns immediately.
"Patients are more likely to make a (negative) comment to a staff member than to a doctor, which may offer an idea of ​​something that is bothering the patient," Sacopulos said. "If we can address it at that point, everyone will be much better."
Possible red flags to watch
During a 27-year career practicing internal and emergency medicine, Marie Bradshaw, MD, had never been sued as a doctor. In part, he attributes his long career without legal problems to interviewing all potential patients before agreeing to become his primary care physician. Although there is no sure way to identify a patient who is very likely to sue, he says it may be useful to consider the following factors:
How many doctors the patient has seen recently. A key question to ask potential patients is how many doctors in that specialty have they seen in the past 1 or 2 years. If the answer is two or more, it is a warning to know more about who ended the relationship and why. "It raises the question of whether they are shopping doctors," said Bradshaw.
If the patient has had problems with other doctors or practices. Bradshaw also asks patients if they ever "had a problem" with another doctor. This question not only investigates whether an individual has sued, but is also a starting point to discuss whether a possible doctor-patient relationship would be a good option. Most of this information can be obtained by taking a complete medical history, Scherger noted. "It must be done in the context of trying to see if it is realistic for you to be the doctor that the patient wants, not in the context that you are selecting someone as a potential litigator," he added.
Attitude towards the conditions of practice for treatment. If a patient resists or refuses to sign an agreement, it is not a good start. "If they are not willing to follow the rules of the road from the beginning, the patient may become problematic as time goes by," said Richard Cahill, MD, vice president and associate general counsel for the malpractice insurer The Doctors Company.
Compliance with clinical recommendations. Similar practice disqualifiers include refusal to follow recommended guidelines for health exams, such as colonoscopy or mammography. "When we get paid for the performance, it is up to me to dedicate my time to patients who are willing to do what I ask, not to someone who does not comply and who will not listen," said Bradshaw.
Consideration shown towards the practice and its staff. Rudeness with anyone in practice is a red flag; Any hint of violence is a decisive factor. "The practices should set expectations regarding patient behavior and indicate zero tolerance for any type of violence in any part of the practice, including the waiting room, exam rooms, hallways or otherwise," Cahill said.
Communication and intuition. "In general, if you do not feel you have a good relationship or communication with someone, it is when problems may arise," Sacopulos said. "If you feel that this is not going well, maybe that is not the patient for you and you are not the doctor for that patient," he added.

Most of this information can be obtained by taking a complete medical history, Scherger noted. "It must be done in the context of trying to see if it is realistic for you to be the doctor that the patient wants, not in the context that you are selecting someone as a potential litigator," he added.

What to put in writing
Practices can take advantage of the fact that patients often research doctors in advance, so doctors can use their websites and marketing materials to guide patients, Cahill said.

"Doctors should start their careers early, or if they are changing their type of practice, create a mission statement and publish it clearly on their website, so that those seeking medical attention from them have a clear understanding of what the practice does , "Cahill said. As a result, fewer people who analyze the practice will expect attention outside the scope of the group's mission.

For example, a growing number of primary care practices now refer patients whose main problem is chronic pain, Cahill said. Similarly, some rural pediatric practices may refuse to handle certain complex conditions or cases.

In addition to providing such transparency, practices should put their treatment conditions in writing, setting clear expectations for patients who belong to the practice, according to Cahill. This document may include rules and policies regarding cancellation / rescheduling of appointments, payment and billing, compliance with clinical recommendations and possibly standards for family participation in care.

Bradshaw, who faces a lawsuit filed by the spouse of a patient in the emergency department, whom he never met, has learned the importance of interacting regularly with family members of patients in their practice. "Many times when you take care of patients, you will never, ever see a family member. And then something goes wrong, and suddenly you receive a 180-day letter," he said.

Cahill advised that the practices publish a disclaimer on their websites indicating that a person seeking attention with the practice is not considered patient until they have been informed in writing that the person has been accepted. Although it is rare for a practice to follow this process, Cahill recommended that doctors take their risk management even further.

"For example, I should say that sending billing materials, insurance information, completing a health questionnaire or even making an appointment with the doctor does not amount to a doctor-patient relationship," he said. In addition, practices should return any document provided or completed by patients who are not accepted in practice, Cahill said.

Risks and warnings
Without exception, doctors must follow state and federal laws about rejecting and discharging patients. Otherwise, according to Cahill, it can result in a complaint to a federal or state agency that a statute such as the Civil Rights Act or the Americans with Disabilities Act has been violated. Such a complaint would lead to an investigation by the Office of Civil Rights or the office of the state attorney general.

There is also a risk that a rejected patient may complain to a medical board that he was not treated properly. "And medical boards investigate very proactively," Cahill said. Documentation proving that a doctor-patient relationship did not start, such as a written letter, makes any basis for a negligence action impossible, he noted. "In a negligence action, you must establish that a duty was owed, and that only applies if there is a doctor-patient relationship."

When it comes to discharge existing patients, it is crucial to avoid patient abandonment by written notice 30 days in advance and not to suspend a patient during a critical stage of treatment. "In the event that an abandonment is found, the question is, with a reasonable medical probability, whether the abandonment caused any compensable injury to the patient," said Cahill.

Even more complicated than navigating legal ramifications is the question of whether patient pre-selection for litigation is very effective. After all, the Medscape 2019 report also showed that the vast majority (86%) of the doctors who have been sued never saw it coming.

"I know that people want a bright line fire test, but such tests are few and far between when it comes to choosing patients," Sacopulos said.

Debra A. Shute is a freelance writer in Marblehead, Massachusetts

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