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.
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.
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