The post where I explain how to avoid a lawsuit or why defensive medicine might not mean what you think it does

One of my favorite things to get in the mail is a newsletter from the CMPA (Canadian Medical Protective Association).  It’s exciting voyeurism to  read about the outcomes of legal actions against my colleagues (all identifiers removed, of course), like slowing down to look at a car accident.

The CMPA is the medical malpractice insurer in Canada.  Although I know it’s theoretically possible to buy malpractice insurance from elsewhere, almost everyone I know is covered by the CMPA.  Since the CMPA is group insurance, not only is it cheaper but if you are the subject of a suit, your premiums don’t increase.  Premiums are calculated based on your area and province of practice…for example, all anesthesiologists in Saskatchewan pay the same premium…it doesn’t matter if your work involves high risk cases in a teaching hospital or low risk cases in an ambulatory surgical center.  In addition, the CMPA is guaranteed by the Canadian government so it can’t go bankrupt.

The CMPA newsletters are not produced for my enjoyment…they are an educational tool to help physicians reduce their liability by discussing common scenarios where the CMPA’s lawyers have lost cases or have settled out of court.  The recommendations are somewhat illuminating and certain themes are heavily represented.

For example, the CMPA recommends that you see your patients in person (radical new-fangled idea, right?).  They would like you to see the patient and perform a thorough history and physical before ordering tests or giving an opinion.  That includes “hallway consults.”  Physicians in Canada may be found liable if they give an opinion to a colleague in the hallway on a patient they have never met.  This happens all the time as in a, “Hey Joe, I’ve got a sticky situation, what would you do if….”  Hallway consults are an important part of medicine – we can all learn from our colleagues and certainly physicians should discuss tricky cases with one another.  The CMPA’s point is just that if the course of proper action is anything but a slam dunk (and when does that ever happen??)  instead of an, “well Fred, I would probably do x” the response should more often  be, “well Fred, that does sound difficult.  Would you like me to see this patient and provide an opinion?”

They would also like you to physically see the patient whenever something interesting happens…for example, if a nurse on the ward phones you at 2 am and tells you so and so is having a new and concerning fever, the CMPA would like you to make an effort to diagnose the reason for the fever by seeing the patient rather than ordering acetaminophen over the phone and rolling over back to dreamland.

Next, the CMPA recommends that you document the information from the history and physical, the discussion with the patient, the recommended course of action (treatments and tests), the alternatives and the follow-up plans legibly in a dated and signed physician note.  If it’s not documented, not only won’t you remember what you were thinking two years or more later when you are required to give testimony, there is no way to prove that it actually happened.  Addendums are okay if you change your mind or forgot to include some information, but crossing out or adding things to your original note is frowned upon, to put it mildly.  Consent discussions need to be documented above and beyond the silly consent form supplied by the hospital since the process of informed consent requires a discussion, not just a signature.

In terms of tests and investigations, well, you might be more likely to be sued based on the failure to provide adequate follow-up (for example, not arranging to see the patient again or not having a system to flag abnormal test results so that they can be communicated to the patient) than to be sued because you didn’t order every test known to man (or womyn hehe) when you first saw them.

In terms of procedures, the CMPA has generally found that it has been able to find expert support for prudent physicians but unable to find expert support for physicians who go beyond their scope of practice or skill set.

Finally, when an adverse event occurs, the CMPA encourages prompt and frank factual disclosure to the patient and/or their family members.  Apologies are encouraged and do not establish “blame” with respect to any future litigation.  During these discussions, the CMPA would like you to stick to the facts and leave out any analysis or finger-pointing.

So there you have it – defensive medicine in a nutshell straight from the malpractice insurer to the vast majority of Canadian physicians: See your patients, discuss your thoughts and their options with them, document well, ensure follow-up, limit the procedures you perform to ones you know how to do and practice reasonably regularly, and promptly and honestly disclose any adverse events.

Hmmm…I guess defensive medicine is not such a nasty phrase after all.  I’m proud to stand up and say that I practice defensive medicine and if I am every “accused” of it in the future,  I guess I’ll smile and say, “thank you for the compliment!”

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3 comments

  1. I’ll try to refrain from being sarcastic, but you mean to tell me, in a nutshell that: “Providing quality care is defensive medicine.” Stop the presses – that’s front page material.

    1. I know! That’s why I’m breaking the story here. I’ve a brave whistle-blower like Russel Crowe in whatever that movie was…

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