Bulletins

Artificial Intelligence (AI), also called “Augmented Intelligence” by the AMA, is  certainly coming to medicine. Many predict that AI will assist with various phases of  the management side of business, enabling more patient independence in personal healthcare and medical decision-making. The question is, will AI be an aid to physicians, or will it become Standard of Care, potentially placing the physician at odds with AI?

A serious concern for malpractice companies is the impact technological developments have on litigation frequency and severity. Telemedicine did not seem  to change things much. However, Electronic Medical Records are becoming a fertile field for plaintiff attorneys to plow. According to Business Insurance Magazine, some people in the insurance industry are very concerned about the potential for increased losses as AI technology advances into medicine (November, 2019, p. 22).

As a health care provider and decision-maker for your patients, you have ultimate  responsibility for the choices you make and the results that ensue. I encourage you  to stay tuned to what is happening in your medical world as AI is discussed and developed. Take advantage of opportunities to weigh in on decisions and developments; your input and influence can help AI become an ally and not a liability.

Patients seek the knowledge and “clinical judgment” of health care providers to help them find the right solutions for their health problems. Most of the time it is an easy solution. At other times it may not be so obvious. A recommendation for a course of  treatment may even change with additional information in the future.

If the reasoning behind a recommended course of treatment is documented at the time the recommendation is made it is recognized to be a relative safeguard against a law suit even if the wrong decision was made initially. Plaintiff attorneys are reluctant to sue for a wrong ‘clinical judgment”

Credentialing is required for everyone who performs medical services. Today we are 

focusing on medical practice employees. Why? Approximately 40% of lawsuits involve activity performed by non-physician providers of medical services in outpatient offices. So what should we do to protect patients as best we can and to limit our own liability?

Here are a few simple but essential practices to put in place: First, each employee with clinical responsibilities in the practice should have a list of medical services that they are approved to perform. They should be approved to perform these services by an office medical supervisor or a physician who certifies that they have been given the instruction and training necessary for the tasks, and that they are qualified and competent to perform these services. Second, maintain documentation verifying each employee’s instruction: whether they have received formal training in a  credentialed school program, or on-the-job instruction.

If an error is made, it will be recognized as a mistake by a trained and competent employee, rather than an employee who was negligently allowed to perform services for which they did not have the proper training and credentials. Either way the lawsuit will have to be defended, but much more leniency is shown for “human error” than for situations in which an employee injures a patient by performing a procedure they did not have proper credentials to perform in the first place. 

Careful attention to credentialing and documentation is essential. It protects our  patients by ensuring that they receive competent care, and protects our staff and  business by limiting our liability.

Per the American Recovery and Reinvestment Act, all public and private healthcare providers are required to adopt and demonstrate meaningful use of electronic medical records (EMR). Proper documentation is key in defending medical malpractice cases, and poor documentation is a severe liability. 

EMR databases have systems known as audit trails which track any changes or modifications to the records stored in the database, including when records are viewed. Within the audit trail, a record is kept of when entries are made, where the entry was made, and the content of the entry. If there are any modifications to an entry, they are tracked and identified as to both content and time such is created. Audit trails are not only present for hospital records, but for office records as well. 

When an unexpected outcome occurs, providers should resist the temptation to “take another look at the chart,” as this can be used by opposing counsel as evidence that the provider was concerned with his/her management of the patient. Instead, if litigation occurs, charts can be obtained, secured, and reviewed as often as needed.

When significant complications occur (either from procedures or from adverse reactions to drugs), we should expect many questions from the patient’s friends and family. While the patient would have been made fully aware of the risks and possible complications through the informed consent process, their friends and family may not have that information. Most of the people asking questions would not have partaken in the informed consent process, leaving them unprepared for adverse outcomes.

When complications arise and you face questions, it is important to answer questions factually. When you field questions like, “How did this happen?” DO NOT SPECULATE. Do not offer your opinion of what you think happened. Simply say, “We do not know everything yet,” or something to that effect. Additionally, do not speculate in what you WRITE—either in correspondence or in the patient’s records. 

If the event becomes a legal matter, speculative comments can do great damage to our efforts to protect you.

Stick to the facts and inform us as early as possible about the event.

Data suggests that a disproportionate number of major medical mishaps, some leading to lawsuits, occur around end-of-year holidays. 

First let me get this out of the way: If you are on call, don’t drink alcohol. (This has not been a major problem for any of our captives, but we all need the reminder during this celebratory time of year.).

Problems also arise when we have a staff shortage, either at our own facilities or at the hospital. If your facility is short-staffed, do not schedule more patients than you can handle. 

Dilemmas sometimes arise when patients insist on having appointments or procedures before the end of the year because they have met their health insurance deductible. Sometimes we are tempted to take shortcuts to get someone scheduled, but then some things may not be done or documented adequately. If we think for one minute that just because we have done a patient a favor and crammed them into our 

schedule, the patient will not sue if there is a complication, we are absolutely wrong. If a patient cannot be treated according to usual protocol, just say no.

Plaintiff attorneys are quick to look for all of these issues when a bad result occurs during a holiday schedule: 

• alcohol

• inadequate staffing

• not following proper protocol and procedures in preparing a patient for a procedure

If we are wise, we can have productive, enjoyable holidays while upholding excellent standards of care for our patients.

If you have hospital records, we look at the following five items when evaluating them: 

Clinical Data Reports: If you order a test, you need to document that you looked at the result. If the labs are normal, a notation of “Labs Normal” is sufficient. If there is an abnormality, you need to recognize it in the note.

Course of patient: “Doing well” is not useful information. Your note should be more specific: Is the issue that required hospitalization getting better or worse? Make note of what specific concerns are keeping the patient in the hospital and how you are following them. If you have communicated with the patient and perhaps even examined the patient, make a note of that.

Reports from nurses: Reviewing nurses’ reports is becoming more difficult in some EMR systems, because nursing information is spread over numerous parts of the record with many pages populated with repetitive numbers or notes that require significant time to read. Also, nurses seem to be less available because they are spending more time at computers generating all of these notes, which are designed more to protect the hospital than to help physicians know what is going on with their patients. (Sorry, I just had to say it.) But nurses are usually your allies in patient care.  You need to work together to figure out how they can inform you if something is happening to your patient that you need to know about.

Consults: If you request a consult, acknowledge that you have read it.

Assessment and Plan: Looking at all the information above, is there a significant  change in the patient or not? What are you going to do about it? Be specific.

These notes are where the plaintiff attorney and plaintiff experts will spend most of their time when determining whether or not to file a lawsuit. If they do file a suit, it will probably be because they see in the notes that you did not recognize and respond to an issue. Even if you did recognize a concern and had a talk with the patient about it, that action will do you no good if it is not recorded in the progress notes.

Every year, as part of your policy renewal, we conduct reviews of medical records in 

several areas, including:

Admission H&P

Progress notes

Informed consent

Procedure note

Discharge summary

Ambulatory surgery admissions

The Board wants each physician subject to these reviews to be aware of the items on 

the survey sheet and to understand why they are important. We review the hospital 

medical records kept by each physician who admits patients to a facility for tests, 

treatment, or procedures, and the physician receives a numerical score based upon 

the findings. Any score below 90% is considered problematic and often requires a 

follow-up review.

In future bulletins, we will address each part of the medical record in greater detail. In 

this newsletter, we will assess three aspects: timeline, accuracy, and legibility. 

Admission H&P for procedures need to follow hospital guidelines, which usually 

means within 30 days of admission. The physician should date the form when he/she 

reviews it. The same 30-day time limit is usually afforded to the discharge summary, 

but it is better if the dictation is done as soon as the chart is available in order to 

minimize the omission of important events. Op notes should be dictated the same day 

(preferably immediately after surgery). The written post-op note should always be 

composed immediately after surgery. Progress notes are now time- and 

date-stamped in EMR. (But if they are not time- and date-stamped, the time and date 

for progress notes and orders must be recorded.) This information will prove 

essential should problems develop.

It is important to recognize that an audit trail is in place to track any and all access to 

the EMR. (In other words, you or your staff cannot go into a patient’s records and 

enter or alter information after the fact if you failed to record it correctly the first time 

or if you failed to record it at the proper time.) Plaintiff attorneys usually request this 

as part of their investigation.

If you write any documents by hand, legibility is crucial. Saying, “Well, I can read it,” will 

be of no help on the witness stand. Remember, these communications are not just 

paperwork; the entire medical team needs to be able to read them for good purposes. 

Typed notes are more easily read, but they must also be accurate. If you type or 

dictate, be sure you reread your notes and make any necessary corrections.

If you have systems in place to ensure that your medical records are kept regularly and 

accurately, then there is no need to fear the review. These reviews do not just protect 

your patients; they also protect you.

If a patient has a post-operative complication, the Operative Report, or Op Note, is where a 

plaintiff attorney will mine for the gems that will fortify their case against the surgeon. 

However, surgeons have the opportunity to make the Op Note their ally by following a few 

simple guidelines.

First, dictate the Op Note in a timely manner. Dictation immediately after surgery is 

preferred, but within 24 hours is essential.

It is wise to include narrative at the beginning of the note describing why the procedure was 

recommended and stating that the risks were explained to the patient, informed consent 

was signed, and a “Time Out” was taken. The surgeon should also note that attention was 

given to positioning, padding and use of retractors in a manner to avoid nerve injury. Nerve 

injury happens and is tough to defend, but making this note will help.

As you dictate the Op Note, describe the events of the procedure in chronological order in a 

manner that is easy to understand. Note in detail any unusual findings like dense adhesions, 

anatomical anomalies, etc. If there was any change in the course of the procedure (for 

example, a laparoscopy converted to an open procedure), clearly explain the reason for the 

change. Any complications (unusual blood loss, inadvertent injury of an organ, etc.) need to 

be fully described, along with the measures used to correct them.

The closing comments should mention how the patient tolerated the procedure and should 

also make special note of any issues (for example, very low blood pressure or O2 saturation). 

If there is a “count,” state it like this: “The sponge, needle, and instrument count was 

reported to be correct.” You do not and cannot verify the count to be correct—only that it 

was reported to you to be so. If there is ever an erroneous count, that wording transfers the 

responsibility to the person who reported the count to you.

As most of you know, part of our underwriting includes an assessment of hospital or ASC records. What you may not know is how the scores are generated. In an effort to improve documentation and to be fair to our insureds, the following is our instruction sheet for the evaluators. I think you will benefit from reviewing this document and applying it to your practice.

Progress Notes

Progress notes are to record the status of the patient and plans implemented in response to that status. There are many areas that are important to include in progress notes. It is important to recognize notes written on lab reports, EKG strips or other forms may not be included in the final medical record, paper or EMR.

Clinical data reports (lab, radiology, studies, consults) should be mentioned in the progress notes. Abnormal results deserve special attention. It should also be recorded if a lab result is expected but not yet available. Score 2 if consistent reference to clinical data; 1 if occasional reference; 0 if hardly any reference.

Course of patient should be properly described. Terms such as “no change” or “doing well” provide no useful information and is not complete enough

for a patient whose condition is critical or deteriorating. The main reason for the patient’s hospitalization should be addressed. Reference to new developments, positive or negative, should be mentioned. This will include things such as eating, skin condition, ambulation, mental status, etc. There should be enough information in the progress notes that another physician who might be providing on call coverage can know what is going on from the progress notes. Score 2 if status of the patient is well described; 1 if there is some description but should be more; 0 if the reviewer has major questions about what is happening to the patient and cannot find the answers in the progress notes.

Minimal notes are acceptable for routine patients without complications. More complete descriptions are necessary for complex cases.

Assessment and Plan Each progress note should conclude with an assessment of the patient’s status and plans in response to that assessment.

Assessment and plan may be inferred from the rest of the note in a very normal, stable, or improving patient. Any new development or change of plan should be explained. It might be as simple as “Patient continues to improve as expected” “No change in management”. It might also have a list of current problems and new developments. Any change in management

needs to be specifically noted and the reason for these changes made clear. This will benefit the patient by providing information to other physicians involved in the care of the patient. Score 2 if assessment and plan are in each progress note; 1 if occasional assessment and plan; 0 if no assessment and plan. Minimal notes are acceptable for routine patients without

complications.

Documents

History and Physical – Medical The admission history and physical should be complete. It should include all elements physicians were trained to

include, including vital signs which for some reason is often omitted. For medical admissions it should have a working diagnosis and appropriate

differential diagnoses. The plan of diagnosis or treatment should be clear. For procedural (surgery or any invasive procedure) admissions it should

present sufficient evidence that the proposed procedure is warranted. It should be thorough enough to identify or exclude all real and possible risk factors that might be affected by the procedure. Medical admissions should have the H & P dictated within 24 hours of admission or a notation that the patient was seen pre-op and no changes since the H&P was dictated. This

notation should be signed, dated, and timed.

2 if diagnosis and plan are clear; 1 if one or the other is incomplete; 0 if not present or inadequate

Score for procedural admission:

2 if H & P justify the procedure: 1 if it is justified but some elements

are missing; 0 if inadequate

2 if risks are appropriately addressed; 1 if OK but could be more; 0 if inadequate

Score for timeliness of medical admissions:

2 if completed within 24 hours of admissions; 0 if over 24 hours

Informed Consent The informed consent needs to be discussed and signed. The discussion of risks needs to be documented either in the admission

H&P or Op note. The discussion of risk should have phrase “included but not limited to” and include the most common complications. There needs to

be a note that the physician affirms the IC has been signed. If the time out is noted in the operative report, this will suffice for consent being signed.

Score: 2 if there is a note that indicates the risks have been discussed in detail and questions answered; 1 if both elements are not included;

0 if not mentioned.

2 if note is made that IC has been signed; 0 if no mention of IC signed is in chart. See note above.

Procedure Note

Time out includes identification of patient, surgical site, procedure, informed consent, pre op meds, administration of preop antibiotics if indicated.

Score: 2 if mentioned in op note; 0 if not mentioned.

Pre procedure dx and post procedure dx. Score: 2 if both present; 1 if only one present; 0 if neither present.

Prep: (positioning of the patient; scrub and drapes). Score: 2 if all (indicated) mentioned; 1 if one is missing and indicated; 0 if none mentioned.

Procedure adequate description of procedure with thorough description of any complications that occurred and steps taken to deal with them. Score 2 for complete note; 1 if not much detail; 0 if bare minimum.

Counts The conclusion of the procedure report should include all applicable counts, “reported as correct” is acceptable, just stating correct is not, and EBL. Score 2 if all applicable counts mentioned; 1 if some but not all applicable counts mentioned; 0 if no applicable counts mentioned.

Timeliness Dictated within 24 hours of the procedure. Score 2 if dictated within 24 hours of procedure; 0 if not.

Ambulatory Surgery

Preop screening For patients who receive anesthesia from a non- supervised CRNA, the patient was screened by an appropriate person and assigned an ASA Class 1 or 2. Score 2 if this is documented; 0 if this is not documented.

Instructions

It is important to document that discharge instructions were given to the patient. Score 2 if documented; 0 if not documented.

There must be documentation that the patient is instructed not to drive or operate machinery for 24 hours after anesthesia. Score 2 if documented; 0 if not documented. This can be by order, surgery

facility policy or in the office at pre-op visit.

Discharge Summary

Hospital Course There is adequate summary of events and data pertinent to the admission.

Instructions to Patient Discharge instructions, written or verbal, are documented

Follow up Plans Appointments made or need to be made are documented.

Timeliness Within in 30 days of discharge or sooner if By-laws require sooner.

Critical or Deteriorating

Consults are important to request when complications are present and input from other specialists would be helpful. This usually indicates a significant problem and demands urgency. It is important to verbally communicate with the physician being consulted when the consult is initiated. This verbal communication must be documented in the progress notes. It is important

to acknowledge the consult report when it arrives and also make note if a consult is not done timely. Any additional calls to the consultant should be

noted. Score: 2 if consults and calls made for consults are referenced in the progress notes; 1 if consult is mentioned but no mention of calls made; no reference to the initiation of the consult in the progress notes.

Reports from Nurses (verbal and written). The nurses have important information about the patient. Due to increased administrative duties there tends to be less personal interaction between the physician and nurse. Written nurse’s notes are becoming more important. At times a nurse may record an exam that is very much different than what the physician records.

Also, the nurses may not write their note until the end of the shift which might be after the physician has made rounds and made a note. Another

reason to time progress notes. Score 2 if consistent reference to nurses notes or verbal report from the nurse; 1 if there is occasional mention of the

nurse’s notes; 0 if there is no reference to the nurse’s notes. Minimal notes are acceptable for routine patients without complications. Next year, this item may be placed into a separate category and focus on complex patients or ones with significant complications.

Informed Consent is not a form to be signed. Rather it is a process of providing the 

information necessary to the patient in order to make an informed decision whether to 

accept recommended tests and treatments, or NOT. A lot of information is necessary for 

the patient even for the provision of “routine” care. This is important to them. 

Documenting that all of the essential information was provided is important to us. Of 

course, all is well when everything goes according to expectation. It is the unexpected 

outcome that becomes a problem, first for the patient, secondly for the provider, and lastly 

for your insurance company.

So we must approach each encounter anticipating that the quality and adequacy of 

documentation of every occurrence will be scrutinized by a well-trained greedy attorney 

who is skilled in twisting the meaning of these documents to a mediator or jury to the 

advantage of the client, the plaintiff of a lawsuit that was once your patient. Documenting 

correctly is really not hard to do and should not add to the burden you already have. We 

need to make sure we document the important things and avoid meaningless entries.

Our approach will be the basics and I think they really fit here. You may need to review 

some of your forms and we are here to help with that. Certainly we will take a closer look 

at all of this with you during the office risk management surveys.

A prevailing question all patients have is “WHO are you?”. They probably look you up on 

the internet. You will find them reading your wall of diplomas perhaps. They really do 

want to know how good your are. However the main WHO is “WHO CARES?” This is only 

communicated through face to face communications. Tone of voice, body language, 

openness, time spent, and effort to help are all part of this communication. A lot is natural 

personality and some are blessed with very winsome attributes. Others of us are a little 

crusty. It might be good to take time with your staff to ask questions about how we come 

across to our patients. 

Everyone on the staff should be included in the process as everyone communicates the 

culture of the practice. Get help if you need it. It will pay off great dividends in the long run - 

and may avert a law suit.

Once the Why (diagnosis) is established the patient is very interested in What is going to be 

done about it (your recommendation), What will happen if they do not do anything about it, 

and What will likely happen if they accept your recommendation. They may or may not ask 

What to expect if things do not go well, i.e. complications. Most surgical practices cover this 

pretty well. The weakness is that it is done so often that even though the complications are 

listed the potential impact of the complications may be missed. Taking time to emphasize 

the big ones is a good idea. Of course all this needs to be documented somewhere in 

addition to the signed informed consent that has all this stuff listed.

The next question to answer is How. This is a major communication challenge. All details of 

the process need to be clearly understood by the patient (and family). If it is a procedure 

videos, booklets, and other educational materials are helpful to help the patient understand 

everything. If it is medications all the does and don’ts of proper administration need to be 

clear. Printed instructions are very helpful as patients often do not remember everything 

they are told.

Finally, Where is this happening. This is big. You are compelled to follow the policies of the 

location (WHERE) a procedure is performed. You may perform procedures in your office, an 

ambulatory surgery center and a full fledged hospital. They all have policies in place about 

the procedure. The policies are probably different. You will be held accountable if you vary 

from the policies in a specific location if some complication occurs. So, know all of the 

policies in every location you use for your patients, and follow them.

Musings from the desk of Dr. Bill Thompson.

I was discussing a case with an attorney yesterday involving a suit against a PCP who 

appropriately referred a patient to an ENT specialist with anosmia and other sinus issues. 

Well, the patient never made/kept the appointment alleging the referral was never made. She 

eventually was diagnosed with squamous cell cancer that was very aggressive and she died. 

Due to changes in EMR format used it has taken much effort to retrieve the proof that a 

referral was indeed made by the PCP. This hopefully will get our physician dismissed from the 

suit but may not. It seems that this point in time was probably the only time treatment might 

have prevented the deadly results. There may well be a “sympathy factor” that might sway a 

jury to make a demand against our physician.

The attorney and I agree that if any effort to follow up this appointment referral, just a phone 

call, documented of course, there would never have been a suit filed against this physician.

I strongly encourage incorporating a system to follow referrals for evaluation of unknown 

conditions as you do (hopefully) for lab tests. If no response is received in 2 or 3 months, some 

follow up communicated to the patient is essential and the efforts of course need to be 

documented.

Simply stated, Risk Management is our effort to avoid lawsuits. Claims Management is our effort to 

successfully defend a lawsuit that has been filed against one of our insured members.

Effective Risk Management is basically taking excellent care of our patients, communicating 

appropriately with them, and documenting all of our efforts. In our combined 30 years of working in 

Risk Management with our sister captives and service providers, we have compiled a list of best 

practices that help to protect patients and the doctors who serve them. We make these practices 

known to all our members and their staffs. To help apply and monitor these practices, we conduct Risk 

Management Surveys and Chart Reviews, and we also provide Risk Management Bulletins and Videos. 

We include all our survey and review findings in each member’s annual underwriting evaluation. 

A question was raised this year asking if all our members really understand why we ask the questions 

we ask in the Risk Management Surveys and why we look for certain things in the Chart Reviews. That 

is a great question, and I am not sure we have consistently communicated the importance of our 

culture. We want all our members to understand why we emphasize and analyze the things we do. So, 

beginning next year, the RM Bulletins will explain the RM Survey questions and the items scored on 

the Chart Reviews in order to inform all members as to why all of this is important and it will be 

available on our website. We are also updating the survey questions to address current trends in 

litigation. Bottom line? It’s important because it will help you not get sued!

It is important to keep in mind that anything written in a medical record may be read by others, 

especially if there is a problem with the care the patient receives. For that reason, it is of utmost 

importance to keep our notes professional rather than personal.

Never make personal derogatory remarks about a patient. The patient will certainly read those 

comments if there is a bad outcome. If the patient is upset by what you have recorded, you can expect 

a review from an attorney and possibly by a jury.

Comments to avoid are:

 “She was mean.”

 “He is stubborn and lazy.”

 “He is non-compliant.”

Instead, write:

 “She yelled and made rude remarks to the receptionist.”

 “He does not follow the diet and exercise plan recommended to him.”

 “He failed to keep three appointments and does not return phone calls.”

Also, refrain from casting fault on another provider with comments suggesting that someone made the 

wrong decision, ordered the wrong drug or dosage, performed the wrong procedure in the wrong way, 

failed to follow up, etc. This will immediately incense the provider you accused, and they may respond 

in a similar manner. This kind of documentation, known as DEFENSIVE DOCUMENTATION, is always 

attractive to a plaintiff attorney. Plaintiff attorneys often assume that the party accusing another is 

probably attempting to cover up his or her own mistake, and so the accusation backfires, making the 

accusing physician a party of interest to the attorney. 

Remember to be objective and simply record what was done and what the results were, with no 

judgmental comment.

We all recognize that making a decision of a person’s health concern with the limitation of no 

examination and associated information (such as vital signs and diagnostic tests) is significantly 

compromised. But does the patient understand this? Probably not in many cases. Therefore it is 

imperative that this limitation be explained before or beginning with the first TH/TM encounter. 

It needs to be well documented that the patient understands this. It would be very beneficial to 

have the patient sign an informed consent as well. This could be done in person at your office to 

have on file should the patient request TH/TM in the future. For a present encounter this would 

need to be sent to the patient via email or fax and returned to the office and put in the chart.

In TH/TM are we responsible for what the patient said or what the caregiver heard? They are not 

always the same. This could be due to style of speech (accent, softness of tone, mumbling) or 

difficulty hearing due to bad connection or even partial deafness on the part of the caregiver (Has 

anyone ever told you that you need a hearing aid? Were you tested to see if you need one? Did 

you get it?). 

Here are some things to keep in mind:

• If there is difficulty understanding, document this and why it is difficult.

• Repeat what the person is saying for confirmation.

• If the problem is a connection issue, stop the call and call back.

• If they are going off on a tangent not really related to the problem they are calling about, stop 

the conversation and get them back to the problem (some lonely souls will talk with you all day 

if you allow them to).

Document everything you think they said and everything you tell them.

If you provide TH/TM services to a patient in a different state than where you practice there are a 

couple of things to consider. If it is an established patient, there are no problems. If it is a new 

patient and a law suit occurs from this encounter, the suit will most likely be filed in the state where 

the patient lives. You policy currently covers this but it could create defense problems. If it is a new 

patient you may not be considered a “licensed physician” in that state. This would be practicing 

“without a license” which is a CRIMINAL act, not malpractice so you would not have coverage for 

this in your policy. These licensure issues are probably being relaxed for TH/TM to help meet the 

Covid 19 needs. You just need to check with any state you will be covering for new patients.

Musings from the desk of Dr. Bill Thompson.

The clinical scene was chaotic and tense. A patient’s life was on the line. Two physicians 

worked together for about half an hour to save this patient’s life—and save it they did. But not 

without significant and permanent damage to the patient.

Both doctors were sued. Both went to trial. 

Same patient, same outcome, same trial, same judge, same jury. . . but different verdicts. One 

physician was assessed no liability from the jury, but the other physician had to pay millions. 

What was the difference?

In my observation, the doctors were treated differently by the jury for several reasons:

Truth vs. deceit

Factual documentation vs. defensive documentation

Humility vs. arrogance

Timely response vs. delayed response (to the patient)

What is the take-away? A jury will not punish a physician who makes a reasonable judgment 

and acts on that judgment to help the patient even if there is a terrible outcome. However, 

when a bad outcome occurs but the physician was negligent, does not admit it, and tries to 

accuse others of fault, the jury punishes the physician. The Bible states that God desires 

justice and mercy. Sometimes—as in this trial—they happen together. 

Working in a medical office or specialty unit presents numerous opportunities to make 

mistakes. Instituting a ‘Time Out” process can significantly decrease the potential for 

adverse events.

For example, before a new prescription or shot is given, a Time Out checklist could include:

• Right medication 

• Right dose and frequency

• Right placement (e.g., SQ, IM, IV, joint, tendon, intralesional)

• No allergies

• No adverse reaction to other drugs

• No contraindications

• Instructions given

• Warnings given

A checklist can also be effective when scheduling procedures. This checklist should 

include documentation of informed consent and discussion of risks. A similar checklist 

could also be applied to invasive tests. 

Take a moment to consider the processes you and your staff perform (both medical 

procedures and administrative practices) and determine which could benefit from a 

checklist. Remember, a Time Out at the beginning can save time, limit mistakes, and 

reduce lawsuits in the end.

A 2018 JAMA article reviewed studies of transcription errors in EMR using Speech 

Recognition (SR) software. They found an error rate of over 7% (that is, 7 words out of 

100) that was corrected to less than 1% upon review by a transcriptionist and/or the 

person dictating. Of course, traditional dictation and transcription produce errors as well, 

as experienced by a past medical associate of a colleague, who once dictated a report 

about his patient, a “28 y/o nulliparous female.” Unfortunately, upon review he found that 

the typist had described the patient as a “28 y/o voluptuous female.” 

In one review of medical malpractice cases, the most alarming statistic discovered was 

that incorrect information (errors) was the top EMR-related contributing factor, 

accounting for 20% of mistakes.

SR software is expanding. So, what to do? A few simple precautions can prevent costly 

errors: First, make sure you have a system in place to review all dictations. A 

transcriptionist can help with the review process, but even so, the person dictating should 

ALWAYS carefully review the document for errors, and should NEVER, EVER sign off on a 

dictation if they have not first read it themselves. If a mistake is later found, it is much 

better to deal with an error that you have not personally “approved.”

A final word on EMR’s. They are mainly a billing platform with an audit trail. It can be 

difficult to mine the important facts among the plethora of irrelevant information related 

to coding the visit. I think it is always preferable for the physician to enter all the important 

history and physical exam findings as well as diagnosis and planned intervention in the HPI 

box, if available. This is usually the first page of the document and having a concise 

collection of data reduces the risk of not seeing the forest for the trees. It is also a service 

to the referring physicians in that they can review the HPI and get all they need to know 

about the plan for the patient. Always, always, always complete the entry of this 

information ASAP after the visit and never wait 24 hours to complete

Deep Venous Thrombosis (DVT) and Pulmonary Embolism (PE) never really surprise us 

when they occur. The risk factors are well known: immobilization, obesity, many medical 

conditions, some drugs, etc. And doctors aren’t the only ones who can readily list these 

factors; plaintiff attorneys have no difficulty finding risk factors when there are bad 

outcomes. This was evidenced in a recent trial verdict in Illinois. The 44-year-old patient, a 

husband and father of two, died from a pulmonary embolism that occurred on the 

operating table as his leg was being prepped for surgery following a knee injury he had 

received a few days prior. The plaintiff was awarded $5.5M.

How do we help our patients avoid these potentially disastrous events? First, expect an 

adult patient to have a blood clot in the lower extremities. If you are doing a complete 

examination on an adult patient (for example, an annual physical), ask about swelling and 

pain. Closely examine the legs for swelling, tenderness, or discoloration. This is especially 

important if you are conducting a pre-op exam or if the patient is on birth control pills or 

undergoing hormone replacement therapy. Be sure to document this examination. If there is 

any question, a Doppler study is mandatory. Last, be sure to prescribe pre- and post-op 

preventive measures like stockings or anticoagulants.

In light of some recent events, I want to make sure you are fully informed that any incident that results in an undesirable outcome is an “Incident,” and we want to know about it. If it becomes a law suit, it helps if we receive the information early while things are still fresh on the minds of those involved. More importantly we try to prevent law

suits which is our greatest goal. 

You are intimately involved in all of this. It is vitally important that you understand the conditions set for you in your policy. Under the section “Your Duties if You Have a Claim” state: 

You and any other covered person named in the claim (or involved in the incident) MUST: 

“Tell us about the incident. Include the date, time, and place of the event; what covered activity you performed; and the names and addresses of any injured people and any witnesses.” 

“Refrain from admitting liability, assuming any financial obligations, or paying out any money without our authorization. If you do, we will not reimburse you, even if the cost is covered by this policy.”

“If you fail to comply with your duties under this section, your failure could seriously impair our ability to appropriately defend your claim and we may deny coverage under this policy.”

Please call us to discuss any incident that you might be concerned about. Kathleen Conway (510-316-2348) or Jerry Kitchens MD (205-542-5139). Of course you have to submit a signed incident report as well. Fortunately, these are available on the website.