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Superheroes do not exist: How to prevent a lawsuit in the first place
Following the previously established Jackson rules can help reduce the risk of a malpractice lawsuit.
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In recent years, many of our favorite superheroes have come to life through the movie industry: Batman/The Dark Knight, Superman/The Man of Steel, Thor, Captain America and Iron Man, to name a few. As premium eye surgeons, there is a patient expectation that we must be superheroes on a daily basis. After all, superheroes are invincible. The reality is, mistakes inevitably occur no matter what our surgeon skills are as superheroes. Despite advanced diagnostic and therapeutic technologies such as femtosecond lasers, intraoperative wavefront aberrometry, premium IOLs and advanced imaging, the surgeon is still needed in the overall equation. The era of the Terminator and advanced robotics will eventually replace the premium surgeon, but not for the time being.
Trust in doctors
I still believe in the adage, “If you like what you do, you will do it well,” and the moment you stop liking what you do, mistakes are more likely to happen. With the increasing pressures of reduced reimbursements, patients delaying care and presenting with more complex cases, and higher overhead costs including EHR implementation, the daily grind truly can become a grind.
Unfortunately, the superhero world we wish we lived in as eye surgeons does not really exist. But the good news is a November 2012 Gallup survey showed 70% of Americans think highly or very highly of their doctors’ honesty and ethical standards. Our patients actually trust us and trust us even more than the 63% who did in a similar 2002 survey. Doctors trail only nurses and pharmacists in terms of ethics and honesty in the survey. In addition, in a December 2010 Gallup article, 70% of Americans said they are confident in their doctors’ accuracy of advice and 71% do not find it necessary to seek a second opinion or do additional research on their own. Based on these surveys, it should not be surprising that preventing a lawsuit when a mistake occurs may be a lot easier than expected.
The other good news is that only one in 25 patients with negligent or preventable medical outcomes results in a lawsuit, presumably due to patients’ reluctance to sue their doctor. Medical malpractice is defined as any bad, unskilled or negligent treatment that injures the patient. A majority of states define the standard of care as that degree of skill and learning ordinarily possessed and used by other members of the profession. A physician who has met the standard as established by expert testimony cannot generally be found negligent. Some states have even passed statutes that establish the standard of the profession to determine negligence. In the end, there has to be negligence that causes harm to a patient to be considered medical malpractice. As a disclosure, I am not an attorney or tout to be one, and my recommendation is to contact your malpractice carrier and/or personal attorney immediately upon threat or filing of a medical malpractice lawsuit against you or your ophthalmic practice.
Follow rules to try to avoid lawsuits
There are steps to prevent a lawsuit in the first place. Simply following the “Jackson rules,” as described in my previous column, can alleviate the risks of malpractice. The Jackson rules are as follows:
- Avoid the super-ego as the doctor
- Always work as a team with your staff
- Listen to your patient
- Educate yourself, your staff and your patient
- Adapt and be flexible with management strategies
- Trust your instincts
- Maintain confidence
- Due diligence is mandatory
- Be realistic
- Be honest and ethical
Once an error occurs, it is important to be proactive as the surgeon. Be prepared before the patient encounter, address the patient complaint or problem immediately upon entering the exam room, formulate a list of solution(s) for the patient’s problem(s), and never hesitate to request a second opinion from a colleague of similar expertise when the patient-surgeon relationship has reached a stalling point.
Although the superhero expectation as premium surgeons continues to evolve, our superhero ability is still vulnerable at times. When all else fails, the right approach in preventing a lawsuit is to be that superhero your patient expected in the first place.
Stay tuned for my next column on LASIK in controversial/contraindicated situations.