Authors

  1. Yankowsky, Kevin W. JD

Abstract

In my 22 years of legal practice representing healthcare providers of all sorts, I have defended virtually every type of lawsuit that can be brought against a member of the medical profession. Without exception, each and every one of these lawsuits has been a very stressful, time consuming, and expensive distraction from practice for the healthcare practitioner named as a civil defendant. In the healthcare liability arena, most of the lawsuits I have encountered do in fact involve at least an arguable good-faith dispute over the quality of care provided. (Contrary to some widely held beliefs, plaintiffs’ lawyers have absolutely no incentive, financial or otherwise, to bring patently frivolous claims.) However, in a relatively significant number of cases, I have seen healthcare practitioners brought into a lawsuit for reasons essentially unrelated to the quality of care they provided to their patient.

Article Content

In my 22 years of legal practice representing healthcare providers of all sorts, I have defended virtually every type of lawsuit that can be brought against a member of the medical profession. Without exception, each and every one of these lawsuits has been a very stressful, time consuming, and expensive distraction from practice for the healthcare practitioner named as a civil defendant. In the healthcare liability arena, most of the lawsuits I have encountered do in fact involve at least an arguable good-faith dispute over the quality of care provided. (Contrary to some widely held beliefs, plaintiffs' lawyers have absolutely no incentive, financial or otherwise, to bring patently frivolous claims.) However, in a relatively significant number of cases, I have seen healthcare practitioners brought into a lawsuit for reasons essentially unrelated to the quality of care they provided to their patient.

 

In almost all such circumstances, the failure of the practitioner that led to the lawsuit fell into 1 of 2 categories: communication or documentation. This article provides a brief overview of how the issues of communication and documentation can ensnare wound care practitioners in litigation that they could have avoided. It is also intended to provide useful, easy-to-implement legal suggestions for wound care practitioners as they move forward in their practices.

 

COMMUNICATION

With few exceptions, every wound care practitioner I have known has done his/her utmost to provide quality care and to achieve the best possible outcomes for his/her patients. It is a widely held belief among practitioners that providing the highest-quality care in and of itself is the best protection against medical-legal risk. This is not an entirely accurate understanding, in my judgment, of how medical risks develop and how they can be prospectively managed. While providing the highest-quality care is necessary for reducing and managing medical-legal risk, it alone is not sufficient.

 

Many wound care practitioners have provided exemplary care and achieved nearly miraculous results and yet still faced either significant medical liability or legal risk. I believe the single most important reason for this unfortunate reality is that even the best wound care practitioners often fail to communicate appropriately and effectively with their patients and their patients' families throughout the course of treatment. The critical end result of this communication failure is that these wound care practitioners often do not appropriately manage, or recognize their failure to appropriately manage, the sometimes unreasonable expectations of their patients and their patients' families.

 

Managing expectations must start before the treatment or procedure ever begins. It must be based on an open, frank, and honest dialogue with the patient and/or his/her family about (1) the nature of the patient's condition; (2) the nature of the medical procedure, its likely benefits, and realistic risks; and (3) the limitations of modern medicine even when practiced at the highest level. Too often, no such dialogue takes place before significant care is provided.

 

Perhaps this type of conversation is rare because of our inherent discomfort with the issues that simply must be discussed under these circumstances. Many providers say it is because of a lack of education. In fact, "less than a third (29%) of physicians report having had any formal training specifically on talking with patients and their families about end-of-life care."1 Additionally, the Centers for Medicare & Medicaid Services only recently began reimbursing for these discussions.1 Most wound care practitioners will recognize and acknowledge that nothing makes patients more uncomfortable than serious medical risks and mortality. This inherent-and to a certain degree understandable-reluctance is often compounded by the wound care practitioner's fear of scaring his/her patient out of consenting to the medical treatment. This fear often results in the practitioner discussing the treatment only in the barest detail.

 

A dangerous disconnect between the patient's expectations and realistic, achievable medical goals often arises when patients (and/or their families) fail to gain this type of clear understanding before the initiation of healthcare treatment. This is especially true when the patient's underlying medical condition and/or the procedure the patient is contemplating involves life-threatening risks. A cardiovascular surgeon born and trained outside of the United States who I have known for years is fond of saying, "Americans are the only people on earth who think that death is optional."

 

Virtually no one wants to seriously contemplate the possibility of an adverse healthcare outcome, even when the underlying medical situation makes such an outcome likely, if not almost unavoidable. Whether this comes from natural optimism or an irrational belief in one's own immortality, when it is coupled with a wound care practitioner's failure to directly and accurately discuss the realities of a disease process and a healthcare treatment regimen, the end result is often confusion at best and anger at worst. And confused, angry patients are much more likely to seek the advice of attorneys irrespective of the outcome of their treatment.

 

It is important that wound care practitioners not scare patients away from consenting to necessary, safe, and legitimate medical procedures. However, there is a proper balance between discouraging patients from consenting to necessary medical treatments and ensuring that those same patients fully understand the nature of their disease process and the possible complications or negative consequences of their treatment. Many wound care practitioners fail to strike the proper balance here and thus inadvertently increase their litigation and liability risk irrespective of the quality of the care they provide to their patients.

 

Wound care practitioners should remember that, despite the medical miracles they often perform on a daily basis, human mortality remains stubbornly stuck at 100%. Every practitioner will encounter all types of complications, large and small, expected and unexpected. Therefore, they should discuss complications-both large and small, likely and remote-openly and candidly with their patients. This is unlikely to dissuade patients from obtaining the medical care they need to treat a serious medical condition. To the contrary, the honesty involved in this type of discussion creates a level of trust and confidence that strengthens the physician-patient relationship.

 

Although wound care practitioners regularly face difficult, complex, and highly subjective treatment decisions, they rarely share with patients the thought processes behind these decisions. Along with the true details of the end-of-life process, patients often do not understand the balancing of risks vs benefits that goes into so many important medical decisions. It is only when patients understand that one risk may necessarily be accepted or even potentially increased to minimize another that they have a better and more accurate appreciation of adverse situations when they develop.

 

Perhaps nowhere is the issue of careful communication more important from a litigation and risk management perspective than in wound care. More so than perhaps any other medical subspecialty, wound care practitioners deal with patients at or near the end stages of life-patients whom modern medicine cannot "cure." Even in a hospice care setting, many families cannot bring themselves to believe and accept that the unavoidable end is near for their loved one. Candid, accurate, and early communication about the realities of the dying process is therefore essential to overcome this delusion.

 

Along with the true details of the end-of-life process, patients often do not understand the balancing of risks vs benefits that goes into so many important medical decisions.

 

This is especially true given the inherent nature of the skin failure issues wound care practitioners are called upon to handle in geriatric or terminal patients. By its very nature, skin failure, even when a completely unavoidable part of the dying process, involves graphic and unsettling sights, unpleasant (if not repugnant) smells, and unsettling mental images of suffering on the part of the dying patient. Astute wound care providers will have a frank discussion with their patients and/or their patient's families before these issues arise to prepare them for these eventualities. Completely clear and detailed discussions, including a description of what skin breakdown will look like, smell like, and require in terms of palliative care and pain relief, are essential to an accurate understanding of the end-of-life process, which avoids unnecessary litigation.

 

To effectively manage medical-legal risks, wound care practitioners must always remember that it is not an exceptional medical result that avoids litigation; it is a satisfactory result that accomplishes this important goal. Satisfactory results that are less than optimal from a medical standpoint often manage medical-legal risk better than exceptional medical results involving unexpected complications. I have seen cases involving expected deaths with dignity that have not resulted in legal complications, even when the care involved, from a retrospective analysis, may have been questionable. By the same token, I have seen truly heroic and miraculous work by practitioners that has resulted in serious litigation after literally saving patients' lives simply because a minor yet unforeseen, unexplained, and unexpected complication occurred.

 

Wound care practitioners rely on the fact that their patients and their patients' families must trust them to perform difficult and often dangerous procedures. Wound care practitioners should return some of that trust by believing in the ability of their patients (and their patients' families) to hear the honest truth about the human condition, the dying process, and the limitations of modern medicine. By doing so, I am convinced they will find that both their practices and their patients will benefit significantly.

 

DOCUMENTATION

If a failure of communication leads to unmet expectations with respect to a patient's care, it is far more likely that a patient or his/her family will seek out the counsel of an attorney. Once that step is taken, the ability of the wound care practitioner to avoid unnecessary litigation is significantly reduced. However, even at this late stage in the prelitigation process, a wise wound care practitioner can still minimize his/her chances of becoming involved in a lawsuit for reasons unrelated to the quality of his/her care. The single best way to do this is through proper attention to the medical, legal, and clinical aspects of documentation.

 

The patient's medical record, not surprisingly, is the single most important document in determining the risk faced by a wound care practitioner in any given situation. Both the defense counsel and the plaintiff's counsel utilize the medical record extensively and in a wide variety of ways throughout the course of medical liability litigation. Everyone knows and fully expects that it will be at the center of the evidence in virtually any medical case. However, what many wound care practitioners fail to recognize is the importance the medical record plays in the preliminary stages of a lawsuit and the unique manner in which plaintiff's attorneys use it at that time.

 

The initial decision to accept or reject a potential claimant is one of the most important decisions a plaintiff's attorney has to make. Quite literally tens of thousands of dollars, and in some cases hundreds of thousands of dollars or more, are at stake every time a plaintiff's attorney evaluates a patient who is seeking representation in a lawsuit against a healthcare provider. The plaintiff's attorney is likely fronting 100% of the costs of the suit, so making the wrong decision and accepting patients with meritless claims are a quick road to bankruptcy and the end of the attorney's professional practice. Similarly, if the plaintiff's attorney misevaluates a case and turns down a claim with significant merit (and significant damages), he/she almost certainly hands a potential financial windfall to a competitor, perhaps leading to a lifetime's worth of second guessing if that competitor turns the case into a significant financial reward for both attorney and client.

 

Wound care practitioners may not fully appreciate the pivotal role the medical record plays when a plaintiff's attorney is making this critical initial decision. The medical record is so important at this early stage because of the limited sources of information that are available to a plaintiff's lawyer in evaluating a case. Of course, the attorney has the full benefit of the potential client's version of the facts. However, and not surprisingly, few potential clients of a medical malpractice plaintiff's attorney are themselves healthcare practitioners. Their version of the facts, therefore, almost always lacks the type of educated foundation that is essential for medical accuracy. Furthermore, the significant emotion that always accompanies serious adverse healthcare events often colors the patient's version of what happened. For both of these reasons, as most plaintiff's attorneys will admit, they must take the version of the medical facts told by a potential claimant/client with at least a grain of salt.

 

When making the critical decision to accept or reject a patient's case, in many jurisdictions a plaintiff's attorney is often left with only 1 presumably neutral and reliable source of information: the medical record.

 

When making the critical decision to accept or reject a patient's case, in many jurisdictions a plaintiff's attorney is often left with only 1 presumably neutral and reliable source of information: the medical record. In many cases, the decision to accept or reject a client has to be made almost exclusively based on what is and is not documented in that medical chart. Given the weight of that initial decision, the importance of the medical chart as an instrument of medical legal risk cannot be overstated.

 

Another important yet little known fact is the way in which a plaintiff's attorney uses the medical chart during this critical initial decision-making process. It is no exaggeration to say that during this process the chart is used in a manner for which it was never intended. This is not the result of any type of intentional misuse of the chart by the plaintiff's attorney. It is merely an unavoidable result of the way our legal system forces medical liability cases to be evaluated at this critical stage.

 

First, the chart is used after the treatment has ended. Fundamentally, the primary function of a medical chart is to provide information contemporaneously with the treatment that it documents. This is especially true for an acute care hospital chart, which is the type of medical record a professional liability plaintiff's attorney most often evaluates. However, in most cases, at a bare minimum, it is weeks if not months after a medical event has occurred before a family member considers contacting a plaintiff's attorney to pursue a claim. Even if a patient contacts an attorney within weeks of the medical event at issue, it can be weeks after that before the medical chart is provided to the plaintiff's attorney for review. Sometimes, entire years elapse between the medical event in question and the patient's initial consultation with a plaintiff's attorney. Contemporaneous evaluation of the medical chart with the patient is therefore virtually impossible for a plaintiff's attorney utilizing a medical record.

 

Second, the plaintiff's attorney in a very real sense is forced to utilize the medical chart essentially in a vacuum, which usually never occurs when practitioners use the chart in a clinical setting. The vacuum exists because a plaintiff's attorney who uses a medical record to evaluate a case does so without the benefit of 2 additional sources of information that clinicians utilizing a chart would always have at their disposal. The first of these is the clinical team attending any given patient. Any time a wound care practitioner cannot find information in the medical chart, he/she can always ask for that information from one of his/her colleagues. The second and even more valuable source of information supplementing the chart is the patient. Even in cases in which the patient is nonresponsive, he/she is often an extremely valuable source of information, through medical monitoring equipment if nothing else.

 

The lack of these 2 sources of information supplementing the medical chart can lead to a number of dubious, if not outright erroneous, conclusions about care in the evaluation process. The first of these will be familiar to most readers: the concept that if something is not documented, it is not done. This statement is used as a teaching tool at medical education institutions around the country, and there are probably few statements that irritate medical-legal defense counsel more than this one. The most fundamental reason for this, in my opinion, is that the statement itself is simply not true in any real respect. If one analyzes the situation objectively, it becomes clear that there are 3 possibilities for a particular medical task with a particular patient.

 

A: the task can be done and documented;

 

B: the task can be done but not documented; or

 

C: the task can be documented but not done.

 

 

In the abstract, no one of the 3 options above is, theoretically, any more likely than the other one. However, more often than not, legal specialists evaluating a medical record jump to the conclusion of "not documented, not done." This can lead plaintiff's attorneys to reach the preliminary conclusion that negligent care was provided merely because of negligent documentation.

 

Certainly no plaintiff's attorney wishes to draw the wrong conclusion on this critical question at this critical time. However, in my experience, it is a simple fact that these types of erroneous assumptions based on this peculiar use of the chart do indeed occur and occur with relative frequency. Although subsequent discovery often reveals circumstances in which the "not documented, not done" fallacy has erroneously led to an initial conclusion that negligent care was provided, that is usually no solace to the wound care practitioner involved in the lawsuit. By the time the truth is revealed, the wound care practitioner has experienced significant stress, time loss, distraction, and sometimes personal expense by virtue of being forced to engage in pretrial discovery and adversarial litigation. In a real sense, the practitioner has still lost, even if he/she may prevail ultimately on the merits of the claim, simply because the claim has been filed. To the extent the claim was filed because of poor documentation, it is a medical-legal risk that could have potentially been avoided.

 

The second logical fallacy that can result from this unorthodox but necessary use of the medical chart by plaintiff's attorneys is a corollary: "not documented, not known." Put simply, this is the often erroneous conclusion that if a piece of information is not expressly documented in the medical record, the practitioners caring for a patient did not know it or consider it when making potentially critical healthcare decisions. For example, if a wound assessment is not documented at a particular moment during a hospitalization, one can draw the conclusion that the medical team as a whole did not have an accurate understanding of the condition of the wound when making medical decisions. If a complication occurs at or near that moment in time, it could be erroneously attributed to that lack of information, thereby implying medical fault on the part of the wound care practitioner, his/her colleagues, or both.

 

In the real world, when information is not documented in the medical chart, it is almost always available from 1 of 2 sources: the clinical care team or the patient. In fact, as a practical matter, those 2 sources of information are often equally or more important than the medical chart in conveying the type of critical decision-making information that is truly necessary for proper medical decisions. The idea that the medical chart is supposed to be like a courtroom transcript, capturing every syllable of every statement made about a patient during the entire course of a hospitalization, is simply not accurate. All the medical chart is intended to be is a good-faith effort to accurately document information that appeared relevant and important to the patient's care and/or useful to other practitioners involved with the patient at the time it was obtained. Nothing more is truly intended from the medical chart, despite the fact that we in the legal profession often expect much more from it.

 

Once again, in my opinion, nowhere is the potentially negative impact of documentation on a plaintiff's attorney evaluation greater than in the area of wound care. In my experience, there is both an institutional and individual component of this practice specific danger. First, far too many institutions overuse documentation tools such as checklists in their wound care practices. These sheets often require documentation, sometimes as frequently as an hourly basis, for routine wound care tasks such as patient turning, dressing changes, and wound assessments. Given the time constraints under which wound care practitioners operate, this type of merciless documentation requirement inevitably leads to omissions. Those omissions then feed the assumptions previously outlined.

 

Second, the very nature of the wound care staging process lends itself to these types of retrospective misunderstandings. Far too often wound care practitioners attempt to quantify each and every wound they see and do so without reference to quantifications made by other practitioners. This leads to medical documentation purporting to demonstrate that a patient had, for example, a Stage 2 pressure injury one morning, a Stage 1 pressure injury that afternoon, and a Stage 2 pressure injury the next day. It is understandable how a plaintiff's attorney, with nothing more than this documentation on which to base his/her conclusions, could believe substandard care was provided by someone under these circumstances.

 

To avoid these types of problems, wound care institutions should minimize the use of checklists and other rote documentation systems to the maximum extent possible, provided of course that it is consistent with the overall goals of patient care. I also recommend that wound care practitioners chart what they see, focusing their documentation on accurate and useful descriptions of a wound's size, color, location, and pertinent changes, rather than attempting to fit every wound into the sometimes rigid staging system. Both of these approaches will make the linear delivery of proper wound care more apparent to anyone retrospectively reviewing the medical chart.

 

CONCLUSION

Effectively managing your medical-legal risk as a wound care practitioner requires more than simply providing the best quality care you can. Before that care is provided, proper communication is the key to managing the often unrealistic expectations of your patients and their families. During that care, documentation with an eye not only toward the contemporaneous use of the record by your colleagues but also its potential subsequent use by others can significantly reduce the likelihood you will be personally targeted in any litigation that may ensue. Both of these simple steps, which I believe are completely consistent with the provision of quality patient care, will help you manage and minimize your medical-legal risks going forward.

 

Reference

 

1. Brooks M. End-of-life conversation stoppers revealed in new survey. Mescape Medical News. http://www.medscape.com/viewarticle/862040. Last accessed December 13, 2016. [Context Link]