Attorney John McCauley Offers Risk Management Tips
“The overwhelming number of people who suffer an injury due to the negligence of a doctor never file a malpractice suit at all. Patients don’t file lawsuits because they’ve been harmed by shoddy medical care. Patients file lawsuits because they’ve been harmed by shoddy medical care … and … something else happens to them.”
That quote is from Canadian author Malcolm Gladwell’s 2005 book “Blink: The Power of Thinking Without Thinking,” which examines rapid cognition, the kind of thinking that happens in a blink of an eye. Gladwell added, “What comes up again and again in malpractice cases is that patients say they were rushed or ignored or treated poorly.”
That’s not news to John McCauley, the former Vanderbilt University assistant vice chancellor of risk and insurance management. In March, McCauley joined Nashville-based Wiseman Ashworth Law Group to work on complex medical malpractice cases and advise clients on risk management issues. Before his 15-year stint with Vanderbilt, he held risk management positions with two provider corporations.
“I’m not a clinician so what I’ve seen over the years is mostly what you shouldn’t do, because that’s what gets you into trouble,” McCauley said. He encouraged hospitals, long-term care facilities and other provider facilities to take a proactive stance. As an example, he pointed to Vanderbilt’s involvement of nurses in risk management, examining claims after they are filed and using that information to help craft policies that will avoid such claims in the future.
“That’s not to say that you’re not still going to have mistakes. Humans are going to make mistakes,” he said.
Yet, McCauley doesn’t completely buy into the notion in vogue that providers should say “I’m sorry” when a medical mistake is made. “I think that’s an overstatement,” he said, adding, “There’s a way to do that without causing a legal problem.”
Providers in Tennessee have something in their favor — the state’s legal environment. “I think it’s one of the best environments in the United States really,” McCauley said. Statutes that favor defendants in cases such as malpractice include a one-year statute of limitations, a three-year statute of repose (three years to bring a claim), a rule generally blocking the use of expert witnesses not familiar with the locality, and 2008 tort reform requiring plaintiffs to have an expert certification backing up allegations made in a medical negligence lawsuit.
Nashville Medical News asked McCauley to share his top five recommendations for provider institutions to reduce liability and avoid being sued. He said it boils down to five words: time, communication, documentation, education and continuity.
McCauley acknowledged the most important deterrent of malpractice lawsuits is the most difficult to produce: time. Nonetheless, he said, “The more time you spend with the family and the patient, the better they understand what’s happening and the less likely you’re going to get into a malpractice or other adverse situation. I’m old enough that I remember doctors making house calls, and that went a long way.” Back then, if the doctor made a mistake, there rarely was a lawsuit because “you’re all part of the family,” he said.
Of course, times have changed, yet somewhat surprisingly, McCauley didn’t point to managed care as a culprit. “A mentor of mine long ago said that the reason we have medical malpractice is President Eisenhower,” he said. That’s because, with the advent of America’s interstate system, patients became more mobile and sought what they perceived as more advanced care from provider institutions in larger cities. And the care they sought was most likely from specialists who didn’t take the time to nurture patient relationships.
“The less-likely doctors to be sued are the ones who spend the most time, and that’s family practice doctors, pediatricians, internists. They spend more time with their patients,” he said.
The take-home message: While there are competing demands on time, hospitals and other care facilities must encourage providers to spend the necessary time with patients and families to establish a relationship.
Yet, spending time doesn’t necessarily mean that good communication is happening. The key is ensuring that patients understand what’s going on.
McCauley recalled an incident at a Florida hospital owned by one of his former employers. A Canadian pharmacist, on the run from authorities because of drug abuse and theft on the job, obtained false medical credentials and landed on the medical staff of the Sunshine State hospital. He was one of the most popular ‘doctors’ in the building — one of the hospital’s biggest admitters and, for obvious reasons, the physician at the hospital who most provided referrals to his specialty colleagues.
There wasn’t one malpractice claim filed against him. “The patients got really good care because all these real doctors were providing the care, and the patients loved him because he would spend time with them explaining what was happening. The ironic thing was that when the medical director told the patients that he wasn’t a real doctor, half of them said they didn’t care. It was really amazing.”
McCauley also recalled a California physician who had 50 suits filed against him. While he had impeccable credentials, this solo surgeon spent little time with patients explaining their upcoming procedure and didn’t document well the conversations he did have.
The result of good communication, McCauley said, is an effective informed-consent process that minimizes exposure and increases patient understanding. “I’ve had cases where a doctor did a very good job of informed consent, and even when the suit was filed, we were able to point to the record,” he said.
“If it’s documented, then a jury believes it was done. If it’s not in the record, then somehow the presumption is that it wasn’t done,” McCauley said. Again acknowledging that time is in limited supply, he stressed the importance of taking the time to document care … and to do it while that care is still fresh on providers’ minds.
McCauley said one of his favorite risk management quotes is, “The faintest ink is more powerful than the strongest memory.”
“Learn by your mistakes,” McCauley said. That means regular M&M (morbidity and mortality) conferences, risk management orientation for residents and refresher courses for existing clinical staff.
Included in that curriculum should be the importance of disclosure. “It’s inevitable that mistakes will be made. The idea is that if you do make a mistake, you deal with it,” he said. In other words, cover-ups never end nicely for those involved.
From a risk management perspective, it’s the “hand-off,” when caregivers change, that causes the most complications. “That’s a real problem, and you can see it sometimes in claims,” McCauley said.
If one clinician stayed with a patient from admittance to discharge, the number of medical negligence suits would drop drastically, McCauley predicted. Thus, he recommended facilities pay particular attention to the processes surrounding shift changes and when doctors join and exit a case. He even encouraged common descriptions of patient conditions — while one nurse may describe the patient as “pale,” another may use the term “bluish.” Continuity makes a difference, he said.