To be blunt, no actively practicing physician can produce consistently good results without an occasional or rare bad result.

One of the differences between sued physicians and nonsued physicians is that some, but not all, physicians who have bad results “run to the fire.” Physicians who get sued all too often run away from the fire, that is, run away from the bad result/complication.

Almost without exception, happy patients do not visit with lawyers to discuss the possibility of commencing a medical malpractice lawsuit. The formula or paradigm for the initiation of a medical malpractice lawsuit is generally as follows:

So what are the typical untoward feelings that we defense lawyers see over and over again? The untoward feelings can be summarized as follows:

• Abandonment
• Surprise
• Arrogance
• A refusal to listen

An example of abandonment would be a physician who had a bad result following surgery and then disappeared. Surprise often involves an injury that occurred wherein the patient denies ever being warned of the possible injury. This is why an excellent informed consent document can go a long way! An example of arrogance might be, “I’ve already answered that question. I don’t answer questions twice. If you don’t get it right the first time, there will not be a second time.” An example of a refusal to listen might be, “I’m still leaking urine. This is destroying my life. I can’t go to work … the diapers just don’t work well enough”; the physician’s response is, no response.

The typical claims that we see are as follows:

• A lack of informed consent
• Misdiagnosis
• Bad result
• Infection
• Neurological injuries

Neurological injuries tend to be where “the money” is. For the most part, the plaintiff’s bar does not want to take a case involving true malpractice–but with insignificant injuries.

So let’s talk about malpractice prevention. In my view, the 4 cornerstones to attempt to prevent a malpractice suit are as follows:

• Empathize with the patient
• Listen to the patient
• Wean the patient from ideas of certainty
• Share the uncertainty

Another good way to avoid becoming entangled in a malpractice suit is to avoid overpromising and underwarning.

An extremely effective way to “chase” the plaintiff’s lawyers away is to secure a second opinion. It becomes very difficult for a plaintiff’s attorney to convince a jury that 2 board-certified urologists agreed upon a plan … and that they were both negligent.

Appropriate documentation is absolutely critical to avoiding a malpractice suit. The decision of whether to commence a medical malpractice lawsuit is virtually always based upon the records. The records must be accurate. In this regard, special caution needs to be applied to templates. For example, checking off the box that you had a discussion with your patient about testicular cancer, when the patient was female, casts a putrid light on the accuracy of all of your records. It also suggests that the physician simply doesn’t care and is sloppy.

It is completely understood that perfect documentation is rarely attainable. There simply are not enough hours in the day. However, in the face of a bad result, all documentation must be as accurate as humanly possible. This means, for example, scrutinizing the operative report and the discharge summary. All too often, discharge summaries are done by physicians in training or outside physicians. Unfortunately, these discharge summaries, on occasion, do have inaccuracies. These inaccuracies will then be exploited to “bat you around” on cross-examination.

Always try to remember the maxim: “If you sign … the case is thine.” Simply put, before your affix your signature to any document, be absolutely certain that you agree with what is written. A failure to do this may very well result in a very painful cross-examination at trial.

At trial, a typical plaintiff’s theme might be, “She/he fell through the cracks” or “The right hand didn’t know what the left hand was doing.” In this regard, it is profoundly important to communicate with concurrent treating physicians and to document these communications. There are plaintiff’s experts, who will come to court and under oath tell a jury: “If it’s not written down, that simply means it didn’t happen. That’s just how it goes!”

Another potential vulnerability relates to rules, regulations, standards and algorithms. Put simply, if you decide not to follow a rule, regulation, standard or algorithm, there had better be a very good reason for not complying. Equally important, the reason for not complying must be documented.

In the presence of a bad result, documentation becomes even more important. You must think before you write. An easy test is to ask yourself, “Would I be comfortable seeing this note on the front page of The New York Times?” If you are not comfortable seeing your note on the front page of The New York Times, you might want to give this some serious thought before documenting anything!

One real life example of inappropriate charting involved a physician whom we represented who had written in his chart: “For office visit and bring payment. Or this will be her last visit!” In another case, a physician recorded in his records: “? Allergic to the world.”

Bluntly stated, it is always our goal to present the defendant urologist as the “Mother Teresa of Urology.” With notations such as the foregoing, this objective can never be accomplished.

The next subject that needs to be addressed is that of informed consent. In simple language, informed consent requires, at a minimum:

• A discussion of the risks
• A discussion of the benefits
• A discussion of the alternatives

With respect to alternatives, if there is a viable option to do nothing, this too must be documented.

One final point. The foregoing advice will not prevent every lawsuit. Many lawsuits may be prevented–but not all. However, if you are named in a lawsuit, you should find it less painful to defend yourself if you follow these admonitions and exhortations.