having the patient sign a form. The
physician performing the procedure for
which consent is required must ensure
that the patient is aware of the benefits
of the proposed treatment, the material risks of the treatment, alternative
options to the proposed treatment, and
possible consequences of declining the
treatment. This information must be
communicated to a patient so that she
clearly understands it.
Contractual liability of doctor to patient: Physicians and patients can enter
into express written contracts regarding
the care provided. These contracts can
include various treatment plans, the
likelihood of success, and even the physician’s promise to cure. Traditionally,
courts have respected a physician’s freedom to contract as he or she chooses.
However, once a contract is formed, a
plaintiff may have a cause of action for
breach of contract if the outcome of the
treatment is not what was promised.
Opportunities exist to decrease the
chances of being sued. One major area
involves documentation, as the patient’s records will serve as the basis of
the litigation. Accordingly, physicians
should ensure notations are legible so
that lawyers, jurors, and others participating in the patient’s care do not
misunderstand the records. This has
been made easier by the recent implementation of electronic health records.
Records should also be comprehensive
and kept contemporaneously with
treatment to maintain accuracy and to
avoid the appearance of impropriety.
Subsequent entries must be clearly
identified and dated. Never change re-
cords after a patient commences a suit
against you. Remember that everything
you write can come out during the in-
vestigation phase of the lawsuit.
Another opportunity to decrease
your chances of being sued is to keep
informed about recent developments in
your field. Make a point to read pertinent
literature, attend seminars, and do what-
ever is necessary to stay aware of, and to
incorporate into your practice, current
methods of treatment and diagnosis.
Physicians should also be cognizant
of contractual liability. When discussing treatment, never guarantee results.
Additionally, once a physician-patient
relationship is established, you cannot
withdraw from the relationship without providing adequate notice to the
patient in time to obtain alternative
care. Terminating the relationship
without such is called abandonment,
and can result in professional discipline and civil liability.
Finally, physicians should be aware
of how relationships with the patient,
institutions, and health care providers
can affect liability. Communication is
key to fostering a good doctor-patient
relationship, and studies support that
the quality of the doctor-patient relationship is a primary factor in determining whether a patient will sue her
physician. 2 You should also understand
how your relationship with your workplace affects your potential liability.
For example, your workplace may be
vicariously liable for negligence found
on your part, and therefore, deemed
ultimately responsible for any verdict
or settlement amount. Conversely, you
could be found vicariously liable for the
actions of health care providers with
whom you work. In the surgery context,
the basis for this type of liability is that
the surgeon is in a position of highest
authority and has ultimate control
over everything that occurs during the
course of surgery. Therefore, you should
understand the consequences of your
relationships with the patients, facilities,
and providers with which you work. 5
Before a lawsuit, and as a regular part
of your practice, it is important that you
thoroughly and legibly document all aspects of care provided, stay current with
medical advances, and take the time to
create a relationship with your patients
involving quality communication. It is
impossible for us to provide you with
enough information to adequately prepare you for the day on which you may
be sued. We nevertheless hope that following the aforementioned suggestions
will be of some help. n
1. Medical Malpractice Claims and Risk Management in Gastroenterology and Gastrointestinal
Endoscopy. American Society for Gastrointestinal
Endoscopy, 2017. www.asge.org.
2. Physician Insurers Association of America. PIAA
Claim Trend Analysis: Gastroenterology, iv. Lawrenceville, N.J.: PIAA, 2004. http://www.piaa.us.
3. Kane C., Policy Research Perspective: Medical
Liability Claim Frequency: 2007-2008 Snapshot of
Physicians, American Medical Association, 2010.
4. Schaffer A.C., et al. JAMA Internal Med.
5. Dodge A.M. Wilsonville, Ore.: Book Partners,
Communication is key to fostering a good doctor-patient relationship, and
studies support that the quality of the doctor-patient relationship is a primary
factor in determining whether a patient will sue her physician.