Medical Malpractice Discussion with Experts: Hayes V. Whiteside, M.D., Chief Medical Officer and Senior Vice President of Risk Management for ProAssurance

Hayes V. Whiteside, M.D., is Chief Medical Officer and Senior Vice President of Risk Management for ProAssurance. Prior to joining ProAssurance in 2004, he practiced Urology for 18 years in Tuscaloosa, Alabama. He received his undergraduate degree from Louisiana State University and his medical degree from Louisiana State University School of Medicine in New Orleans. Dr. Whiteside completed a general surgery internship and residency at LSU in New Orleans and a urology residency at LSU as well. He was Associate Professor of Surgery at The University of Alabama College of Community Health Sciences Division of Surgery in Tuscaloosa. He also served as Chairman of the Tuscaloosa County Board of Health from 2002-2006. He remains active in numerous medical societies and professional organizations.

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Q. Nebraska passed “I’m Sorry” legislation a few years ago. The intent 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?

Dr. Whiteside: One of the most challenging situations a physician faces is delivering bad news to patients and families.  To facilitate the process of delivering such news, many states, like Nebraska, have enacted “apology laws” to prevent expressions of sympathy from being introduced as evidence of wrongdoing in professional liability lawsuits. At the outset, physicians who face such a situation should contact their professional liability carrier and the facility’s risk manager to assist in disclosure and communication with the patient and family. If at all possible, physicians should have these conversations in-person, so that the patient and family can see the physician’s concern, ask questions, and explore options. When disclosing unexpected outcomes and delivering expressions of sympathy, whether in-person or in a letter, it is important to acknowledge that the event occurred.  Depending on the situation, an apology that the event happened may be desirable or appropriate, but physicians should refrain from accepting blame for the event. The conversation, including the names and relationships of those present, should be documented in the patient’s medical record.  Physicians know it is impossible to prepare for every difficult situation that may arise; however, general preparation for disclosure of adverse events is good risk management, just like a fire drill.  Furthermore, development and maintenance of an open and strong patient relationship may prevent deterioration of the relationship should an unexpected outcome occur.  

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?

Dr. Whiteside: As the face of medicine changes (practice trends, technological advancements, etc.), static written procedures are not always adequate.  Naturally, easy-to-understand-and-implement processes that are well-known to the office staff are more likely to be followed.  An important process is tracking and following up on diagnostic tests/imaging studies, lab results, and referrals. Follow-up with patients who have missed or cancelled appointments is a key process for physician practices.  Another important process is telephone triage, recognition of urgent/emergent complaints and provision of physician-approved responses to common questions or problems by the office staff.  As important as the actual processes is the staff’s knowledge and understanding of their important role in patient safety and risk management.

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?

Dr. Whiteside: Without a doubt. Physicians and other medical professionals can tell you that patients who perceive that they have a good relationship with their physicians are less likely to sue, even in the face of an adverse outcome.  Effective risk management begins as soon as a professional relationship is established with a patient, and effective communication is the cornerstone of a successful physician/patient relationship, with understanding, compliance, and satisfaction ultimately depending on both verbal and written communication. Good communication improves actual care and the patient’s perception of the care that he or she receives: two key ingredients to deterring lawsuits. Patient education is important, as well, because patients who don’t understand what medicine can and cannot do for them may mistake a known complication, adverse event, or unanticipated outcome as “bad medicine.” Educating patients doesn’t have to be technical or lengthy, but efforts should be as thorough as possible. It’s a good idea to keep a patient’s fears in mind – we recommend physicians check a patient’s understanding by asking him or her to repeat any key points, as well as asking the patient to relay any questions or concerns. We also recommend encouraging the patient to take an active role in his or her course of treatment. Patient non-compliance, which often leads to adverse events, is frequently associated with a patient’s failure to understand his or her condition, the rationale for treatment, and the important role he or she play in achieving positive outcomes.

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

Dr. Whiteside:  The primary function of a medical record is to provide a complete and accurate description of a patient’s medical history, medical conditions, diagnoses, care and treatment, and response to such care and treatment. Proper documentation within the medical record can support a physician’s defense and illustrate his or her commitment to the patient’s care.  Whether to a jury, third party payor, or another physician, proper documentation gives physicians credit for the good care they are providing.  We recommend documentation be legible, timely, chronological, accurate, thorough, and objective. Documentation should include tests ordered, past medical histories, allergies, and medication lists. Discussions with patients, such as informed consent discussions or discussions regarding a patient’s noncompliance, should be documented and include the names and relationships of anyone present. Physicians or staff should document if printed educational materials are provided or if the patient watches an online program or video.  In order not to taint the documentation of the good care being provided, physicians should not alter the medical record.  Corrections and addenda should be transparent, and a physician’s professional liability carrier may be of assistance before documentation mistakes are made.  Again, physicians should receive credit for the good care they are providing, and proper documentation is the means to that end. 

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?

Dr. Whiteside: The benefits of preventive practices include quality patient care, promotion of patient safety, open and strong patient relationships, compliance with laws and regulations, and protection from liability. A preventive checklist to achieve those benefits might incorporate the following:

  1. Physician-approved telephone triage protocols for both office and after-hours calls that address what complaints require immediate attention, frequently asked questions and common problems, and parameters to determine if an office visit or other action is necessary.
  2. Documentation of all patient telephone calls, during and after regular office hours, which includes the date/time of the call, subjective information provided by the patient/family, advice or instructions given, and prescriptions phoned in to a pharmacy (with medication name, dosage, frequency, amount, any refills, and the pharmacy utilized).
  3. A system to track missed or cancelled appointments, referrals and consultations, and test and lab results, including documentation of all steps and efforts to reschedule patients or obtain information.
  4. Documentation of informed consent discussions, which includes the physician’s discussion regarding the risks, benefits, and consequences of non-treatment; the patient’s agreement with the plan; and any state law documentation requirements.

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