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"You have turned my life around"

I am 87 years old, with a problem of the prostate gland. Before I met Dr. Baum, I went to the bathroom every 30-60 minutes. After Dr. Baum's treatment on my prostate, I go only 5 times per day and only 1 time at night! You turned my life around. I am so very grateful!

-Sidney Daigle

I want to thank you for your due diligence. You saved my life. I highly recommend you!

-Dwight Bastian

Thank you Dr. Baum! Because of you I'm back in the "rodeo"!

-Gerald Wallace


"The times they are a changin" couldn't be a more accurate saying for the health care profession as we make a transition from fee for service to a managed care environment.

For example patients expectations have risen over the past few decades and that change has accelerated in just the past few years. Many of our patients have heard, seen, or experienced great progress and advances in healthcare and want to experience those advances. Patients expect to be diagnosed, fixed, restored to health quickly, successfully, inexpensively and without complaints. With these lofty expectations and when their expectations go unmet or unfulfilled, there is a greater likelihood that dissatisfied patients will be asking for the services of an attorney to have their care evaluated and scrutinized. With an abundance of attorneys in our community, there will be no problem for a dissatisfied patient to find an attorney willing to accept law suits on behalf of patients against physicians.

In addition to heightened expectations, there are increased risks that all physicians are exposed to in this era of managed care. Many of us will be forced to see more patients in the same amount of time. When a physician sees a greater number of patients for a greater number of medical problems, in a more strictly limited time frame, there is greater likelihood of a misdiagnosis or late diagnosis. As a result there are more lawsuits instituted against physicians which appear to be a direct result of maturing managed care environments.

This article will review some piratical caveats that will help you prevent a malpractice claim against you and your practice. We suggest that in this litigious environment that constant awareness of the danger is the first step in prevention.

  • Never, ever #1. Never, ever assume your memory is sharper than the tip off a pencil or pen. Remember, if you didn't document it, you'll likely lose the case. Proper documentation is your best protection in a factual dispute against the plaintiff.
  • Never, ever #2. Never, ever change the chart record. In plain English...don't ever touch the chart with a pen or pencil. Of course there are sophisticated scientific methods of detecting additions to the records but the usual scenario doesn't require James Bond super sleuthing. The usual "gotcha" or ruse used by plaintiff attorney is to ask the patient to contact your office for a copy of their records. Your office staff complies after receiving a written release from the patient. Shortly thereafter you receive a notification of a law suit filed by your patient and a request for records. The chart is reviewed and your memory suddenly becomes crystal clear and you recall a conversation or a finding on the physical exam conducted months earlier and you add it to the chart. Now your records are going to be different the set contained by the patient and your defense has been crippled.
  • This rule also applies to electronic medical records as changes in the electronic record can be easily identified by computer wizards. Computer detectives can provide evidence of changes in the medical record including the date and time that alterations were made. Their evidence of electronic tampering will hold up in a court of law.
  • Never, ever #3. Never, ever give your original medical records from your office or hospital to a patient or the patient's attorney. The original records are your possession under the law. The patient is entitled to copies. This caveat also applies to original x-rays and reports. It is very difficult to defend a malpractice case when you don't have the records or the reports. Once you have received a notice of a law suit, make every effort to ensure that the originals are in a safe, even locked, area that you can easily and quickly access.
  • Never ever #4. Never, ever try to be your own attorney or to practice law. You should no more treat your own medical problems or operate on yourself, than to try and handle a potential malpractice suit between you and your patient. We are trained problem solvers and when a problem is thrust upon us in the guise of a filed law suit, we often think a phone call to the patient or worse yet to the patient's attorney can bring clarity to the "misunderstanding." The best advice we can offer is once you receive a request for records from an attorney, do not even consider contacting the attorney in an attempt to "resolve" the potential claim. In many cases, your attempt to extricate yourself from a malpractice claim, no matter how well intentioned it may be, only makes matters worse. These supposed "off the record" conversations can, and will, be used against you later in the case or at the time of trial.
  • Never, ever #5. Never ever withhold information from your attorney. Remember heshe is on your side. Remember he/she is on your side and needs the full benefit of your knowledge to protect your interest. There is nothing worse than your attorney getting blind-sided at a deposition as a result of withheld information. When you initially meet with your attorney, provide himher with a full disclosure of the facts both good and bad, so that a defense strategy can be prepared.
  • Never ever #6. Never, ever "wing it." at the time of your deposition. When you are deposed you need to be like a Boy Scout, "prepared." The deposition is the road map for your defense. It is hard to undue a lapse or error during your deposition at the time of your trial. Be prepared means working with your attorney and your experts and think of every conceivable question that the opposing attorney may ask you. Have your attorney practice with you and let him be devil's advocate, because you will be confronting a real devil who wants to dip into your pocket book during the deposition.
  • Never ever #7. Never, ever discuss your case with anyone except your attorney, hisher staff or your insurance carrier. Avoid even the mention of the facts with anyone other than those individuals. Do not discuss the facts and strategy of your case on open telephone lines (cellular phones, portables, etc) or in the doctors' lounges.
  • Never ever #8. Never, ever let the fact that a malpractice claim has been filed cause you to lose faith in yourself, your ability to practice medicine or in the legal system. Anyone has the right to file a claim, and every claim must be resolved in a fair manner. Don't let the stress of your involvement in a claim be a source of anxiety or a source of depression. Remember that in medicine we often produce prompt resolutions to even the most complex medical issues and diseases. However, in a law suit it may take years to resolve even the most frivolous case.
  • Never, ever #9. Never, ever assume that malpractice has occurred in a given situation, matter how bad it may seem. Medical malpractice is defined by legal standards. Your attorney will explain the law to you in detail. And remember, in our system medical malpractice has not occurred until a judge or a jury determines the verdict based on the facts and the merits of the case.
  • Never, ever #10. Never, ever assume that you know what your attorney is doing or not dong. Attorneys and physicians are trained to think very differently. Your attorney has been taught by education and experience to do and not to do certain things-and to emphasize certain tasks-which may make very little sense to you. Therefore, you should take the time to ask questions , make suggestions, and listen carefully tot he answers and responses. Just as you ask a patient to put his or her trust in your hands, so should you put your trust in the hands of your attorney.

* Peter Sperling is a malpractice defense attorney with Frilot, Partridge, Kohnke and Clements.

** Dr. Neil Baum is a physician in private practice and the author of Take Charge of Your Medical Practice (Aspen Publishers, 1997).