Your most effective protection against a malpractice suit

New Orleans-The most effective protection against the threat of malpractice litigation is also the least expensive.

"Show empathy, particularly in patients you are going to operate on. Take the extra time to explain the surgery and exactly what is going to be done. This will improve the doctor-patient communication and give the patient a better understanding of the procedure. Additionally, when you explain the procedure, you should use procedure-specific consents," Christopher L. Coogan, MD, professor of urology at the Rush University Medical Center, Chicago, told Urology Times.

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Informing patients of a procedure and the likelihood of its varied outcomes, as well as documenting the conversation, decreases both rate of suits as well as the likelihood of their succeeding, said Dr. Coogan, who chaired a 3-hour course on malpractice at the AUA annual meeting in New Orleans.

"The average urologist is sued about every 9 years. The most common reason, occurring in about a third of the cases, is improper performance of a procedure. The second most common reason, occurring in about 15% of cases, is an error in diagnosis. Those issues are one and two," Dr. Coogan said.

"Communication is the key to preventing a lawsuit," he added.

NEXT: Issue not well studied

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Issue not well studied

Despite the impact a malpractice suit can have on a urologist's practice, the issue does not appear to be well studied. Dr. Coogan noted two studies. One, a study of malpractice risks for urologists published in Urology (1998; 51:183-5) by George Kaplan, MD, of Children's Hospital, San Diego, compared litigation frequency among urologists listed in Best Doctors in America with candidates for recertification by the American Board of Urology. It found some geographic variation in rates but concluded that there seemed to be no direct or inverse correlation between reputation and the incidence of lawsuits.

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The second study mentioned by Dr. Coogan was conducted by C.J. Stimson, MD, JD, of Vanderbilt University Medical Center, Nashville, TN, and appeared in the Journal of Urology (2010; 183:1971-6). This study looked at the frequency of patient complaints against urologists as a surrogate for lawsuits and found that close to half (47%) of the physicians received no complaints, while 11% of the 268 urologists in the study drew half the complaints.

"Thus, not all doctors appear to face the same risk," Dr. Coogan observed.

NEXT: Two types of defensive responses

Two types of defensive responses

The possibility of litigation has evokes two common responses.

"There are two types of defensive (preventive) responses. The first is known as ‘assurance behavior,’ whereby a doctor will order additional tests to reduce their risk of being sued. Some studies have shown that up to 80% of all doctors may practice assurance medicine," said Dr. Coogan.

"The second defensive tactic is known as avoidance behavior, in which doctors distance themselves from negative-risk patients and refer challenging procedures and difficult patients. These practices may occur in around 40% of doctors.”

As may be expected, the average costs (indemnity) associated with malpractice claims have risen, from $196,005 in 1988-1992 to $350,304 in 2008-2012, according to data presented by Dr. Coogan. One of the factors driving this increase is the rise in attorneys' fees, which went from a little over $20,000 per case in 1989 to over $40,000 20 years later in 2009. The costs of expert witnesses were around $10,000 in 2009, as were associated expenses.

Joining Dr. Coogan at the podium for the course were David Sobel, MD, JD, of Urology Associates, P.C., Denver; Elizabeth Kavaler, MD, of New York Urological Associates, P.C., New York; and James W. Saxton, Esq, an attorney practicing with Saxton and Stump, LLC, Lancaster, PA.

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