MEDICAL MALPRACTICE DISCUSSION WITH EXPERTS: WILLIAM LAMSON, MEDICAL MALPRACTICE DEFENSE ATTORNEY

Bill Lamson is a partner of Lamson, Dugan and Murray and Chairman of the Firm’s Litigation Department.  Bill is well recognized and highly sought in the area of medical malpractice defense. 

Mr. Lamson is a 1969 graduate of the University of Nebraska. He was inducted into the American College of Trial Lawyers in 1985 and the International Society of Barristers 1996. He is also a member of the Nebraska Defense Lawyers Association, and a member of the Defense Research Institute.

For more information on Bill Lamson and the well respected law firm of Lamson, Dugan and Murray, see www.ldmlaw.com

 Below are Mr. Lamson’s responses to our series of questions on medical malpractice:

Q.  Nebraska passed “I’m sorry” legislation a few years ago.  The intention of the legislation is to provide physicians the opportunity to apologize to a patient for a negative result without having such apology used against the physician in a medical malpractice lawsuit.  Do you think that physicians should take advantage of such legislation?  If so, in what instances? What is the danger of writing such a letter?   

 Mr. Lamson’s response:  States that have passed “I’m sorry” statutes have differed in the scope of protection provided.  The Nebraska statute, like most others, is narrowly drafted to protect only statements of sympathy or compassion, but not statements of fault in relation to an unanticipated outcome of medical care. 

Expressions of apology and sympathy are important in building relationships of trust with patients and families.  On the other hand, expressions of fault or other explanations regarding an unanticipated outcome often require speculation on the part of the physician and will be admissible as evidence should the physician be sued and the case proceed to trial.  Physicians should therefore provide apologies with caution, understanding the limitations of the protection afforded by the “I’m sorry” statute.  

 The discussion of legal issues related to this legislation is not to be confused with requirements set forth in physicians’ codes of ethics, such as the AMA Code of Medical Ethics, which should always be observed.     

Q. If you were to review the office procedures for a medical practice, what three or four procedures would you want to see (1) in writing; and (2) actively followed?

Mr. Lamson’s response:

Responding to patient phone calls and documentation thereof

 Follow-up on outside lab/test results

 Updating patient’s recent history, especially re: other physicians seen, medications prescribed by other physicians

 Documentation of Patient Education/Informed Consent

 Q.  It is often said that the physician/patient relationship is an important aspect of a successful treatment relationship.  Do you agree with that statement? If yes, what would be important in the physician/patient relationship?

Mr. Lamson’s response:

Yes.

 Patients who sue are often angry about perceived attitudes on the part of the physician.  They describe a lack of caring, or indifference, and lack of listening to the concerns of the patient or family.  This is often a misperception of which the physician is unaware.  Taking steps to avoid this will benefit the patient and lessen the risk of litigation for the physician. 

  Trust is important in a physician/patient relationship.  Trust can be established by communicating with the patient on a level that he/she understands and allowing the patient to be involved to a reasonable extent in medical decision-making.  It is also established by speaking frankly with the patient while remaining nonjudgmental regarding personal medical issues.  Taking time to listen to patient concerns and to answer questions goes far in demonstrating an attitude of caring.  All of these actions are likely to assist in the establishment of a successful physician/patient relationship.        

Q.  What factors are particularly important in terms of quality documentation?

Mr. Lamson’s response:

Documentation entries should be dated and timed, legible, and factual.  They should provide enough information to tell a story that allows the physician or other healthcare provider to understand what has been going on with the patient.  Interdisciplinary communications should be documented, as should communications with consulting physicians and with the patient or family.  Patient education/informed consent should always be documented in the medical record, the specificity of which depends on the circumstances.  Errors should be corrected by lining through; never obliterate or attempt to change a medical record after-the-fact.  With electronic charting, avoid the temptation to simply “choose from the menu.”  Individualize by entering annotations as necessary.   

Q. If you were to create a preventive law checklist for medical practices, what would be three or four of the most important things on that checklist?

 Mr. Lamson’s response:

Perform an appropriate history/physical examination before prescribing any medication or treatment for a patient.

 Formulate a (differential) diagnosis when a patient is seen for a medical complaint.

 Follow-up after ordering any medication or treatment, or additional testing.

 Communicate with the patient/family regarding diagnosis, treatment, and recommendations; allow time for patient questions and input; ensure patient understanding.

 Document all of the above.

© 2009 Parsonage Vandenack Williams LLC

  For more information, contact info@pvwlaw.com

Good Doctors Get Sued for Medical Malpractice: Physician Asset Protection Planning As a Way of Life

Medical Malpractice suits result in significant distress.  We preach regularly about all of the actions that physicians should take to avoid getting sued but the fact is “good doctors” get sued.  In addition to giving consideration to state laws, structure of practice, patient safety, practice standards (all covered in other blog topics), a physician should make asset protection planning a way of life from the day the physician commences practice.

We preach regularly about asset protection planning but given that we have seen a rise in lawsuits on questionable claims, we are going to revisit both strategies to avoid malpractice claims and steps that all physicians should be taking on a regular basis to protect themselves in the event the physician or a partner is sued. 

We will cover a variety of topics in detail in other blogs or on our website but here is a quick list in the area of asset protection planning.

*Put your estate plan in order before your first day of practice.  Good estate planners develop a plan that considers where you are now (which might be a lot of student loan debt) to where you are going.. You will have a retirement plan, a house and assets to protect. Start right away.  If you wait until a claim gets made some day, in most states, you are too late.   If you are many years into practice without a solid estate plan, do one now.  Include asset protection planning discussions as part of your plan.

*Know your state’s laws regarding malpractice insurance.  Understand your exposure.  Understand your exposure for the acts of others.  Get a personal attorney who reports to you and who has expertise in health care law and personal planning.

*Understand your malpractice insurance.  Go over the policy line by line and be clear about what is covered and where coverage ends.

*Take your personal insurance seriously.  Consider all types of potential liability.  Professional liability is not the only risk to your assets.   Consider the employee who gets in an automobile accident while driving to the hospital and kills a carload of engineers.

*If you choose private practice, spend time with a knowledgeable lawyer discussing the benefits of professional corporations as compared to the other options.  Serious consideration should be given to maximum liability protection.  Tax benefits can be achieved in most entity forms in the current climate.

*Asset protection planning has become a term of art for those of us who do health care law and estate planning.  There are numerous ways to achieve asset protection.  All of them require that asset protection planning be a way of life.  Again, planning after a claim is made is too late.

More detailed articles will be available here and at our website over the next few months.

© 2009 Parsonage Vandenack Williams LLC

  For more information, contact info@pvwlaw.com