The Physician - Patient Relationship

Physicians who carefully listen to patients and comfortably share medical information with them have discovered the cornerstone of the art of medicine. A healthy physician-patient relationship can make a difficult diagnosis more bearable for the patient. It can help a resistant patient understand the need for a procedure or medication, and allow the physician to develop a realistic plan for continuing care. When a physician's relationship with a patient is marked by mutual trust and open communication, he or she has taken a major step towards the assurance of patient satisfaction.

Evidence shows that a clear, two-way conversation is a key element in the prevention of patient dissatisfaction and malpractice claims. In fact, many episodes of patient dissatisfaction triggered by an iatrogenic injury or other "adverse outcome" can be defused by a reasonable explanation from the physician who has established a good basis for communication.

On the other hand, inadequate communication and misunderstanding are often the inciting agent that transform a poor medical outcome into a legal action against a physician, even when quality care was delivered. Most studies show that a significant percentage of malpractice lawsuits are ultimately resolved without any payment to the patient. Many risk managers believe that a large number of these malpractice cases could be avoided if physicians listened more attentively to patients who experienced less than optimal or unexpected treatment outcomes. Techniques for increasing patient satisfaction through improved communication are now widely recommended for malpractice claims prevention.

Patient Rights' - Informed Consent

Many physicians feel that informed consent is merely a formality necessary to obtain the patient's signature on a form in order to allow a specific procedure or treatment to be performed on the patient. Rather, informed consent should be thought of as a communication process through which a patient, with the advice and support of his or her physician, makes decisions concerning the treatment he or she will receive. The process assists in developing the critical element of trust between the physician and patient, and is often the most important discussion a physician will have with his or her patient.

Patients may bring a claim or lawsuit against the hospital and/or a physician predicated solely on the allegation that they did not give their consent; this is called a battery. A second more common claim is that the consent given was not based upon proper and adequate information; this is known as a claim for "lack of informed consent." This type of claim is usually found as part of the typical malpractice or negligence action. Because of this type of potential claim, from a risk management perspective, the informed consent process plays a crucial role in minimizing the exposure of both the hospital and physicians to medical malpractice claims and lawsuits.

Patients' Rights - Confidentiality

Patients have the right to expect that all communications and records pertaining to their care will be treated as confidential, and that their rights to privacy will be protected. Therefore, all health care providers must treat patient related information in a confidential manner, and guard against the indiscriminant and/or unauthorized release of such information. Although such an act may occur unintentionally, the hospital, physicians and other health care providers may be found liable for the unauthorized or improper disclosure of medical information.

Discussion of patient related information should be conducted only in locations where confidentiality can be maintained. Health care providers should refrain from such discussions in elevators, hallways, dining areas and other public areas. Health care providers should use discretion when discussing medical information concerning a patient in front of visitors or family members, and should first determine whether the patient wishes to have this information discussed in the presence of such persons. In addition, the patient's permission should be obtained prior to leaving a message containing confidential medical information on a telephone answering machine, or with family and/or household members. Health care providers should not disclose patient related information when asked by unidentified or unknown persons, or in response to telephone inquiries, other than providing hospital approved condition reports, e.g., critical, stable, etc. In such situations, the requesting party should be referred to the patient's attending physician for further information.

Patients' medical records should be guarded at all times in areas where entries to the record are made to prevent unauthorized access. Medical records should be stored and protected according to hospital policy, preventing passers-by from viewing the record. Access to patient information via electronic systems should also be protected according to hospital policy, with access code and password security maintained.

In order to maintain the peer review privilege and patient confidentiality, staff meetings to discuss patients and M & M reviews should be conducted in appropriate locations. Materials distributed should be collected and not left for members of the general public to find.

Patient's Rights

The hospital is committed to ensuring that the individual rights of all patients are respected during their hospital stay. Most importantly, all patients have the right to expect to be treated with dignity and respect. It is important for all health care providers to be familiar with patients' rights under state law and hospital policy and observe them at all times. Patients afforded these basic considerations are usually more satisfied with their hospital experience, and from a risk management perspective, it makes them less likely to make a complaint, which could ultimately result in a claim or lawsuit.

The hospital is obligated to provide appropriate assistance, including the use of an interpreter, to ensure that patients understand their rights. All individuals are entitled to receive emergency care and/or treatment without discrimination due to race, color, religion, sex, national origin, disability, sexual orientation, or source of payment. Patients are entitled to be informed of the identity and role of all physicians and support staff involved in their care, and have the right to refuse treatment or examination by them. Patients have the right to privacy while in the hospital and to expect all information and records regarding their care will be kept confidential.
Patients must be given all the information they need to give informed consent regarding treatment and refusal of treatment. Under most circumstances patients are entitled to review, and should they so desire, obtain a copy of their medical records (after discharge if the record is a hospital record). A patient may refuse to take part in research and should be able, without fear of reprisals, to complain about the care and services they have received.
Patients, or appropriate family members, should be informed about unexpected and/or negative outcomes promptly. This should include the nature and cause of the event, if known, as well as the manner in which the event will affect the patient's prognosis and treatment plan. Failing to disclose, or disclosing only partial information regarding such occurrences, is perhaps the most common cause of patient dissatisfaction. Often, this dissatisfaction results in malpractice claims and lawsuits. Regardless of how difficult it may be for patients, it is legally unwise to speculate on the cause of an untoward event.
Patients should also be made aware that in order for the health care team to render good care, patients have certain responsibilities. The most important of these is to provide, to the best of their knowledge, accurate and complete information about their present complaints, past illnesses, hospitalizations, medications and other matters relating to their health. Patients are responsible both for following the treatment plan recommended by the members of the health care team, and for the consequences should they refuse treatment or not follow recommended instructions.
While trying to treat all patients with dignity and respect, occasionally, the use of physical restraints must be employed to protect and avoid harm to the patient or those surrounding the patient. In almost all circumstances, prior to the use of restraints, the written order of a physician who has examined the patient must be obtained. In emergency situations, a registered nurse may order restraints but the physician must be contacted immediately. It is imperative that the patient's medical record be documented regarding the need for, use of, and termination of restraints. Hospital policies are in compliance with the JCAHO policies on restraints and will generally provide a sound procedural approach.
Competent adult patients have the right to refuse treatment. Since this refusal may be subsequently disputed or denied by the patient, it is important that all health care providers document these occurrences in the patient's medical record. When a patient refuses treatment, it is important that his or her physician disclose the risks and consequences associated with the decision. The treatment being proposed and refused by the patient should be documented in the medical record, as well as the fact that the potential adverse consequences have been discussed with the patient (and when appropriate, family members).
Similarly, adult patients may not be detained in the hospital should they wish to leave against medical advice, except under extreme circumstances prescribed by law. Again, the patient's medical record should be documented regarding his or her voluntary decision to be prematurely discharged, noting the potential adverse consequences that have been discussed and that the patient understands them. The record should also note that further care has been recommended, as well as where and when the patient intends to obtain this care. In addition, most hospitals require that the patient be asked to sign a form indicating he or she is being discharged against medical advice. The patient's refusal to sign this form, which often occurs, should be documented in the record.

Tort - Frequently asked questions

FAQ

 


Q. What does "tort" mean?
A. Tort (French for "wrong") refers to a class of civil wrongs to private person(s) or property for which one sues in civil court for money damages. This is in contrast to "crimes" which are wrongs against the public or society and are tried in criminal court.

 
Q. Can a tort also be a crime, and vice versa?
A. Yes. In fact, while it has been common for victims to bring charges in civil court to try and recover damages after a guilty verdict in criminal court, victims are increasingly bringing civil suits independent of the verdict in criminal court. Malpractice cases involving "gross negligence" are more likely to also result in criminal charges against the physician.

 
Q. How is "gross negligence" different from "negligence"?
A. While negligence (or "ordinary negligence") commonly refers to the omission or commission of an act that a reasonably prudent person would or would not do under similar circumstances, gross negligence usually indicates intentional failure to perform as would a prudent person. Gross negligence is therefore usually an intentional tort (types of torts are more fully explored in the next section).

 
Q. When a case is tried in both civil and criminal court, doesn't that represent "double jeopardy"?
A. No. The court system and the paradigms of law considered in each are different. For example, the agency bringing the charges (a person or group in a civil case, the state/government in a criminal case) and the potential penalty (loss of life or liberty in criminal court, some financial penalty in civil court) are very different.

Torts - considered in Civil Court system

There are two types of torts: negligent torts and intentional torts:

Negligent Torts:

Negligence is defined as the omission or commission of an act that a reasonably prudent person would or would not do under given circumstances. Wrongful death is an obvious claim, i.e. negligence on the part of the physician leading to an unexpected death. However other, less obvious claims are also possible such as wrongful conception, wrongful birth or wrongful life (an obstetrical case where the argument is that the patient would have been better off if s/he had never been born; for instance if prenatal testing failed to uncover a serious defect).  

Intentional Torts: 

Here, a wrong is intentionally committed and the wrongdoer realizes that harm is likely to result. 

Common examples of intentional torts include:

• Assault and battery- "assault" is a threat, whereas "battery" is an unconsented-to intentional touch of another's person. For example, operating on a patient without obtaining informed consent.
• False imprisonment- restraint by physical force. For example, not letting a patient leave the office until the bill is paid. Regulations regarding restraints, including restraining mentally ill patients, or patients with a communicable disease vary depending on state laws.
• Defamation of character- is an oral communication (called "slander") or written communication (called "libel") to a third party or parties that holds a person up to scorn and ridicule to a substantial number of persons. For example, a physician tells a patient that his/her previous physician was incompetent and unfit to practice medicine.
• Fraud- is intentional misrepresentation in a manner that could cause harm. For example, a physician promises that a procedure will cure a patient when the physician knows that it will not.
• Invasion of privacy- is the right to be left alone. An example might be a woman who is called at home and asked to donate blood (despite her frequent requests not to be called) because she has a rare blood type which is in great demand.
• Infliction of mental distress- self explanatory - For example, a patient is screamed at by his physician for calling the physician's answering service very late at night, and the patient suffers emotional trauma resulting from the physician's screaming.

Criminal Law vs. Tort Law

A basic understanding of the current U.S. legal system

 The U.S. court system is divided into three separate sections based on the type of law considered: Criminal Law, Civil or Tort Law, and Administrative Law.
 

Criminal Law...

Criminal charges, which are brought against individuals or groups by the state (the government), are based in laws arising from three sources...

• Constitutional Law - which arises from the Federal and State Constitutions
  
• Statutory Law - which is derived from statutes enacted by the State or Federal Government.
  
• Common Law - which arises (at least partially) from the opinions penned in actual court cases.

Civil or Tort Law....

The Civil Court system provides a mechanism for individuals, groups or the state to recover damages when a tort (French for 'wrong') is committed against a person(s) or property.
Some Civil wrongs (or torts) are defined in state statutes; however, most tort cases are brought claiming negligence, which has its basis primarily in common law. Medical malpractice (which is defined as professional negligence in a medical setting) cases are heard in the Civil Court system.

Administrative Law...

deals with the implementation of governmental legislation through the creation and administration of agencies such as the Internal Revenue Service, The Environmental Protection Agency, etc., and will not be considered in much depth here.
A large part of any medical-legal or risk management discussion is medical malpractice. A patient who sues for medical malpractice is claiming the tort of professional negligence (types of torts are more fully explored in the next section). And professional negligence in the health care setting is defined as the departure, either by the acts or omissions of a health care provider, from accepted standards of care.

Some Examples...
So, how does medical malpractice (a Civil Law concern) interface with Criminal Law and the Criminal Court system? Stated simply, 'malpractice' is a claim of professional negligence and is tried in the Civil Courts, whereas criminal charges are made by the state and are tried in the Criminal Courts.

How these two court systems coexist can be illustrated by an example:

O.J. Simpson was found 'not guilty' in a criminal court. However, the victims' families brought a civil suit to redress the loss (the 'tort') they believed was caused by Mr. Simpson. He was subsequently found guilty of 'wrongful death' in civil court.
How did this happen? First, the burden of proof in a criminal case, where one's liberty and perhaps one's life is at stake, is greater than in a civil case where only one's finances are at risk. In fact, criminal cases must be proven 'beyond a reasonable doubt', while tort and other civil wrongs require only a 'preponderance of evidence'. Second, because civil and criminal courts are different (and consider different paradigms of law), it is possible to be found innocent in one court and guilty in another.
One of the most concerning recent trends in medical risk management is the move toward bringing criminal charges against physicians for issues previously only considered as torts in civil court.

A recent example:

An oral surgeon administers sedation in his office to an adolescent while performing a tooth extraction. The adolescent has a reaction to the sedation, aspirates and arrests. The Surgeon begins CPR and calls 911, but the adolescent doesn't survive.
The community was so upset with this case that, in addition to the civil lawsuit for professional negligence (malpractice) brought by the patient's parents, the district attorney (as a representative of the community) charged the physician with the crime of manslaughter (despite the fact that the physician was trained and licensed to administer sedation and adhered to all guidelines for equipment, drug administration and monitoring in his office).

Frequently asked questions on patient rights

FAQ

Q. May a patient revoke his or her consent for a procedure once it is given?
A. Absolutely. A patient has the right to revoke his or her consent at any time. If a patient revokes consent in the middle of a procedure, the procedure should be terminated as soon as safely possible, and the patient's termination of consent should be recorded in the medical record.
 
Q. May a patient or a patient's family revoke a DNR order?
A. Usually. The patient can always revoke his or her own DNR order. Members of the immediate family or other surrogates may be able to revoke a DNR order (if the patient is unable to participate in decision-making) depending on the situation. Advice from the Office of Risk Management is critical in situations such as this.
 
Q. Is consent obtained over the telephone from a guardian adequate when treating patients unable to consent for themselves?
A. Yes, but is definitely preferable to obtain consent in person. If it is necessary to obtain consent over the phone, the conversation should be witnessed (listened in on) by another healthcare professional, and the substance of the conversation should be recorded in the chart. The witness should cosign the note.
 
Q. For how long is a consent form valid?
A. At Yale-New Haven Hospital, a surgical consent for is valid for 30 days.
 
Q. What are the most important things to cover in informed consent?
A.

• The disease which is to be treated.
• The proposed treatment or procedure.
• The potential risks (including death, serious disability or those outcomes which would be particularly concerning to the patient), benefits and side effects of the procedure or treatment proposed.
• The risks and benefits of any alternative treatments or procedures (including no treatment).

Q. If I forget to obtain consent prior to sedating a patient, is it better to wait until after the procedure to obtain consent or to consent him or her while sedated?
A. Obtaining consent after a procedure should never be done. Either a procedure can be done without consent (because it is an emergency, etc.) or consent must be obtained prior to the procedure. If a patient is sedated prior to surgery, but is awake, alert, appropriate and aware, it may be acceptable to obtain consent (and document on the consent form in the record that patient was awake, alert, etc.) Consent after premedication or sedation is much less preferable to obtaining consent while the patient is fully awake!

Patients' Rights - Limitation of therapy

Prior to the explosion in medical technologies and advances in critical care medicine which occurred after 1965, little could be done to keep critically ill patients alive. And from 1965 through the mid 1980's, public sentiment and fee-for-service insurance encouraged a "do all you can to preserve life AND prolong death" attitude among physicians, payors and patients. Increasing concern over resource allocation and the financing of health care, however, combined with an increased interest by patients in self-determination, has relatively recently stimulated a reexamination of end of life issues. 


The courts have been asked on many occasions to help in decisions about withholding, withdrawing and terminating life sustaining care for patients who, usually, are unable to state their opinion, and often did not make their wishes known prior to falling critically ill. In Cruzan v. Harmon (1988), Chief Justice William Rehnquist's majority opinion established that Nancy Cruzan did not make her wishes viz. life support known prior to falling critically ill, nor did she establish a mechanism for decision making (such as a durable power of attorney), and therefore the State of Missouri was within legal bounds in refusing to allow Nancy Cruzan's parents to remove her feeding tube and let her die.

This decision by Justice Rehnquist helped stress the importance of living wills and durable powers of attorney. It may be said that the decision also helped stimulate the passing of The Federal Patient Self-Determination Act of 1990.

Patients' Rights - Exceptions to need for Consent

Emergency Situation

When a patient is unable to give consent, and A) a delay in treatment would be life threatening or cause the patient serious harm, B) no close family member or surrogate is availabe to give consent on behalf of the patient, and C) the physician has no evidence to suggest that the patient would oppose the treatment, consent is implied by law. The physician should record the emergency situation, course of action to attempt to obtain consent, and procedures performed in the chart.

Legal mandate

In unusual circumstances, a legal guardian with health care power of attorney, or a court with proper jurisdiction may order treatment of a patient against that patient's will. These situations usually arise when some treatment is mandated under public health laws. Although a patient cannot refuse treatment in these uncommon situations, legal experts suggest that the patient should be informed exactly what treatment is being undertaken. Statutory consent is a related situation where state statutes imply authorization for a test. For example, certain states have statutes protecting physicians from liability for assault and battery when a police officer requests a blood sample be drawn from a person charged with drunk driving. The implied consent in this case occurred when the driver was issued his or her driver's license. That is, the driver accepted the rules of the State, including being tested for alcohol intoxication when he or she accepted the driver's license.

Therapeutic privilege

Until recently, it was not uncommon for information to be witheld from a patient if a physician felt that the information would be injurious or upsetting to the patient. This was most common when treating diseases such as cancer and is known as therapeutic privilege or therapeutic exception. Today, with the demise of paternalism in modern medicine, therapeutic privilege is invoked less and less. Further, it has been argued that if a physician feels that information may be so upsetting to a patient as to cause psychological harm, that patient is not competent to consent to treatment and perhaps a guardian should be appointed to make health care decisions.

Implied consent

For example, a patient who presents himself or herself to the physician and holds out his or her arm gives implied consent that it is OK to check his or her blood pressure or to deliver a vaccine.

Patients' Rights and Consent in minors

Consent in minors

This differs in different states, and the following are outlines:

Emancipated minors

Minors have the legal capacity of an adult if they meet the following criteria: Live on their own, are self-supporting, are married, are in the armed forces, or fulfill any combination of the above. In all cases an emancipated minor may be dealt with medically as an adult, and no parental permission is ever required for treatment. However, when treating a patient as an emancipated minor, that minor is responsible for the bill, and the parents are not financially responsible for treatment they did not consent to.

Mature minors

Legally, a "mature minor" is judicially recognized as possessing sufficient understanding and appreciation of the nature and consequences of treatment despite their chronological age. The term is usually applied to adolescent (age 14 or older) when a proposed treatment is not of a serious nature. For example, a 14 year old is capable of giving informed consent for the removal of warts, but may not be capable of making decisions regarding the treatment of acute leukemia.

Consent in questions of contraception and abortion

Minors have a right to contraception without their parent's knowledge (at least at federally funded sites....e.g. Planned Parenthood). This means , however, that the parents cannot be sent the bill (This would be a breach of confidentiality by the physician).
Minors also have a right to an abortion without their parents knowledge. If only the minor consents to the abortion, however, the parents are again not responsible for payment.

True minor

A minor who is unable to consent for his or her self (i.e., not an emancipated or mature minor) will need consent from his or her legal guardian. In cases of divorce or re-marriage this can be quite complicated, as both parents may be guardians, but only one may have financial responsibility for the child. In this case, can the one parent give consent for procedures that the other parent will have to pay for? When problems such as these arise, it is helpful to have an attorney's recommendations.

Law gives UAE patients new ‘right to die’

Medical Malpractice under UAE Law.
"The malpractice is an error that occurs due to the unfamiliarity of a practitioner with the technical aspects which each practitioner is assumed to be familiar with, due to negligence or paying insufficient efforts". 
On its way upward when UAE was well transformed into a country of ravishing skyscrapers, diverse business opportunities and world-class infrastructure facilities, the Government of the UAE realized that it's own elite class of local Arabs were turning to the West for medical treatments and therefore a business  opportunity was being missed. 
For a country that was developed and transformed at a lightning fast speed, this was a wake up call. Besides developing sophisticated medical infrastructure to advance medical tourism, the need for a conclusive  legislation was felt.
Doctors will no longer be compelled to resuscitate dying patients under sweeping changes to the law governing health care.
The new rules permit medical staff to allow natural death to take its course and refrain from performing CPR on dying patients who are suffering from conditions that are probably incurable.
If all treatment has failed, or at least three doctors advise against resuscitation, a patient will be allowed to die naturally.
Until now, any doctor who fails to resuscitate a patient has been liable to prosecution. The change in the law follows a report in April by a task force set up by the Health Authority Abu Dhabi to examine where improvements could be made in palliative care.

Nesreen Al Alfi, of Fatima College for Health Care Sciences in Abu Dhabi, and a member of the task force, said there were challenges in overcoming cultural beliefs and a legal system with no approved policies until now for "do not resuscitate" or "allow natural death".

The new law brings about other sweeping changes to the way health care is delivered and how medical staff work, including exempting doctors from criminal liability in many cases where they now face prosecution.
Under the new law, if harm to a patient is self inflicted, or a result of refusal of treatment or failure to follow medical advice, then the doctor concerned will not be liable to prosecution.

A doctor will also not be liable if unexpected complications arise that are not caused by medical error.
Legal experts told The National in June that convicting health professionals of misconduct and sending them to prison was contributing to unnecessary medical tests and the over-prescription of medication.

Stephen Ballantine, a solicitor at Galadari Advocates and Legal Consultants in Dubai, and a medical malpractice specialist, said doctors were hugely concerned about their exposure to accusations of malpractice.

Decriminalising the issue would help to attract the best doctors to the UAE and encourage medical tourism, one of the key elements in Dubai’s future vision for growth, Mr Ballantine said.

Patients' rights and Informed Consent

The current attitude toward consent and patient rights in the US can, in large part, be traced to a decision by Justice Cardozo in 1914 (Schloendorff v. Society of New York Hospital). This decision outlined a principle of self-determination, called Cardozo's root premise, and reads as follows:

"Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and the surgeon who performs an operation without his patient's consent commits an assault for which he is liable for damages. This is true except in cases of emergency, where the patient is unconscious and where it is necessary to operate before consent can be obtained."

Informed consent has since evolved from obtaining the patient's verbal permission prior to initiating treatment, to a complicated process which aims to involve the patient in decision-making.

Currently, informed consent can be described as a three part process:

1. Disclosure and explanation to the patient, in a language which the patient can understand, the nature of a proposed procedure or treatment, its potential risks and benefits, and reasonable alternatives, if any exist.
   
   
2. Ensuring that the patient understands what has been explained.
   
   
3. Acceptance of the risk by the patient and consent to proceed.
   

The final, but important part of informed consent is documenting, in writing or other suitable medium, the particulars of the three parts noted above. Two common malpractice claims involving issues of informed consent are:

1. Battery, which is the claim that the patient did not give his/her consent prior to initiating the treatment or proceedure or treatment in question.
   
   
2. Lack of informed consent, where a patient claims that he or she was not given adequate information prior to a treatment or procedure, and if he or she was given such information, he or she would have made a different decision.

A most famous example is a Connecticut case where a woman with lupus underwent needle biopsy of her kidney and experienced a complication resulting in perforation of her gall bladder and necessitating open cholecystectomy. She successfully claiming that she would have opted for an open renal biopsy HAD SHE KNOWN IT WAS AN OPTION. In its decision, the court stated that "all viable alternatives [must] be disclosed [to the patient] even though some involve more hazards than others". In this case, the patient sued claiming she had given UNINFORMED consent. In most cases where a procedure is performed without first obtaining informed consent, the patient can successfully sue no matter the outcome. Suits in this situation, i.e. battery suits, are based on the failure to furnish full information, and for depriving the patient of his or her right to choose treatment alternatives. In addition to being the basis for a civil lawsuit, battery is also a criminal offense and, in the view of the courts, performing unwanted treatment on a patient is no different than physically assaulting them with a weapon (although few cases end up in the criminal courts).

The medical record

The medical record serves many purposes but its primary function is to plan for patient care and to provide for continuity in information about the patient's medical treatment.

  

As a permanent record, the patient's medical record informs other health care providers both inside and outside the hospital about the medical history of the patient. In addition, the medical record:

• provides information which serves as the basis for financial reimbursement to hospitals, health care providers and patients;
  
  
• serves as a legal document for use by an injured patient against other parties or for use in other legal proceedings;
  
  
• is used by hospital quality assurance and peer review committees, State licensing agencies, State regulatory agencies, and other entities in accessing the quality of patient care by hospitals and health care providers;
  
  
• is a key portion of accreditation processes.
  
  
• can be used in clinical research (via retrospective review)
  

From the risk management perspective, the medical record is a crucial element in preventing and minimizing the potential adverse consequences of malpractice litigation. Ultimately, it serves as the basis for the defense of malpractice claims and lawsuits. Medical records which are poorly maintained, incomplete, inaccurate, illegible or altered, create questions of fact regarding the treatment given to a patient. Patient's attorneys often institute malpractice lawsuits when they believe the questions of fact created by incomplete and poorly documented medical records will cause a jury to find liability against a hospital and/or health care provider.

Proper documentation in the medical record creates a legal document which accurately and completely reflects the care provided to a patient and, in a courtroom setting, it may be likened to a witness whose memory is never lost. It serves to correlate, for all involved, important patient information regarding the treatment rendered and the patient's treatment plan, and is the means by which a level of communication is achieved among all health care providers involved in the patient's care.

Avoiding Medical Malpractice - Privacy and Confidentiality

Another area in which ethical and legal problems may arise is in questions of Privacy and Confidentiality.
Privacy refers to a state of "limited access to a person". Put simply, privacy is the right to be left alone. 

For example: A woman consents for her physician to check her HLA type for a hospital laboratory study. Years later, a hospital administrator develops leukemia and requires a bone marrow transplant. He searches hospital records for someone who is HLA compatible and finds that the woman is a perfect match. He contacts her and her physician repeatedly, despite her expressed disinterest in donating marrow. Eventually she sues the administrator for invasion of privacy. 

While someone who gains access to medical records or other information without consent may be guilty of invasion of privacy, the person who grants access to a third person without consent is guilty of a breach of confidentiality. For example, if the woman's physician in the above example had given access to her medical information to the hospital administrator, that physician would be guilty of a breach of confidentiality. The rules of confidentiality prohibit disclosure of information to third parties without the consent of the original source of information. And, since physicians are routinely in receipt of confidential information which is often shared with others in the course of patient diagnosis and management, they are frequently at risk of breaching the confidentiality of patients. 

Another example of breach of confidentiality: A group of post-call residents are discussing admissions from the previous night while riding the public elevator down to breakfast. One resident names and discusses an HIV + patient admitted with pneumonia. Unknown to him, the patients family are among the riders of the elevator. Later, the family writes the hospital, complaining breach of confidentiality.

Informed Consent

The final element of patient autonomy that we will explore is informed consent. While it is possible to fulfill the legal standard of informed consent with a completed, dated and signed consent form, true informed consent requires a number of elements:

• that the patient is competent;
• that appropriate information is presented to the patient by the provider;
• that the patient understand the material presented by the provider;
• that the patient acts voluntarily (without coercion or under duress) and
• that the patient agree to the plan presented.

Avoiding malpractice - The physician-patient relationship

While it has been demonstrated that as many as one-third of all patients experience some iatrogenic event while in-hospital, most do not pursue a malpractice claim.

Why is this so?
Studies suggest that the relationship between the patient and the physician plays a large part in determining whether or not a patient will make a malpractice claim.
Many experts believe that an even larger number of malpractice suits could be avoided if physicians listened more attentively to patients, and if the physician patient relationship was based on mutual trust and open communication. Some other points which will could help decrease the risk of malpractice suits are:

• Introduce yourself to all patients and pay attention to non-verbal cues.
• Provide sufficient time to personally care for each patient. Take time to explain treatment plans and provide emotional support.
• Avoid medical jargon and be punctual for meetings with patients and families.
• Avoid criticizing other physicians or another physician's management of your patients.
• NEVER guarantee the outcome of a treatment.

Carefully Document all:

• Discussions
• Discharge instructions
• Telephone calls
• Any and all findings
• Changes in the physical exam or clinical course
• Patient's refusal of care

Personalize your treatment of patients.
Patients are much more likely to sue an impersonal physician than one with whom they have developed a good relationship:

• Treat all patients with courtesy and consideration.
• Arrange for physician coverage for your patients while you are off.
• Prescribing medications over the phone is not advisable. If it is necessary, always follow up the telephone call with a written prescription and document the call and prescription in the patient's chart.
• Request consultations when indicated and appropriate.