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AAD president shares legal tips


 

EXPERT ANALYSIS AT PDA 2016

References

NEWPORT BEACH, CALIF. – Over the past 20 years, the number of medical malpractice claims against dermatologists has remained steady, in the ballpark of 86-123 per year, according to Abel Torres, MD, JD.

In fact, a study that used claims data from the Physician Insurers Association of America between 1985 and 2008 revealed that dermatology ranked 19th among 28 medical specialties evaluated. “The bad news is we’re not ranked 28th, so we’re still getting sued,” said Dr. Torres, professor and chairman of dermatology at Loma Linda (Calif.) University and professor of dermatology at Case Western Reserve University, Cleveland. In the study, 2,704 of 239,756 (1.1%) closed claims in this time period involved dermatologists; only 29% of the claims that involved dermatologists resulted in a payment for the plaintiff, with a median and average indemnity of $35,000 and $137,538, respectively (J Am Acad Dermatol. 2012 Jan;66[1]:78-85).

Dr. Abel Torres

Dr. Abel Torres

Speaking at the annual meeting of the Pacific Dermatologic Association, Dr. Torres, who is also current president of the American Academy of Dermatology, said that communication breakdowns between health care providers and patients account for more than 80% of medical errors and adverse events. In addition, ineffective communication can lead to below-average scores on Hospital Consumer Assessment of Healthcare Providers and Systems (HCAHPS), the Clinician and Group Consumer Assessment of Healthcare Providers and Systems (CG-CAHPS), and other surveys, impacting public scrutiny, reputation, referrals, patient retention, and loyalty, and pay for performance. “Physicians who are on the lower third of communication on surveys tend to have 110% more lawsuits than everybody else,” he said.

Dr. Torres underscored the importance of obtaining verbal or written consent with patients prior to performing dermatologic procedures. “You want to discuss material risk, that is, What’s the likely significant risk? What’s a viable alternative? Do you think it’s viable? And if not, be prepared with data to support that. And what’s your rationale of benefit?” he said.

In a study that evaluated informed consent in dermatologic surgery, 85 patients undergoing Mohs surgery were given verbal and written instructions, including information about the potential for 10 possible complications (Dermatol Surg. 2003;29[9]:952-5). The researchers asked the patients to recall the 10 complications at 20 minutes and at 1 week after the informed consent process. The overall group retention rates for both time periods were 27% and 24%, respectively.

“The reality is, people are nervous,” said Dr. Torres, who was not involved with the study. “They’re not focusing well and may not be listening very carefully to you. So when you give them informed consent you need to help them focus on the important issues. Be cautious about diluting the discussion with so much information that they’re not getting the message.”

Lawsuits involving the use of lasers in dermatology are on the rise, according to one study that examined trends in legal cases secondary to cutaneous laser surgery over a 28-year period that peaked in 2010 (JAMA Dermatol. 2013;149[2]:188-93). It found that laser hair removal was the most commonly litigated procedure (63%), followed by lack of informed consent (53%). Nearly half of the cases favored the defendant and the mean indemnity payment was $380,719.

This is in contrast with commonly reported litigation trends where a majority of the cases favor the defendant. The study also found that nearly 40% of cases involved a nonphysician operator. “So you need to be extra careful when you’re dealing with laser procedures, or you’re dealing with nonphysician operators or extenders,” Dr. Torres noted. “In that regard, know the rules in your state; make sure that you’re clear on them. Make sure that the people who are going to [perform the procedures] are appropriately trained. Provide an adequate degree of supervision to make sure that the proper procedure is being followed, especially as it relates to informed consent.”

Another liability risk for clinicians is failing to follow up with patients. “As a doctor, you may have the responsibility to make sure the patient actually saw the specialist and that their reports were acted upon,” Dr. Torres said. “The law requires that you interact with the specialist in the patients’ best interest. Also, if you refer a patient to another doctor and you have a reason to think that [doctor is] incompetent, you may be held accountable. Referring to the wrong specialist can be a pitfall.”

Dermatologists may at times also be liable for providing interpreter services for patients, no matter the size of their office or the number of employees on their payroll. He recommended that physicians explore whether the Canopy Medical Translator APP, a technology that enables clinicians to communicate with patients in 15 languages, can prove useful to them. Funded by the National Institutes of Health, the technology can be run on any device that runs on iOS or Android. “It can take phrases you have and translate them, or translate phrases that patients have to you,” Dr. Torres said.

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