Clinical pathways can help you prevent, win malpractice lawsuits
Experts hope for greater consensus on national guidelines
In addition to helping you treat patients safely and cost-effectively, clinical pathways represent one of your best lines of defense in warding off and winning malpractice lawsuits, experts say.
For a plaintiff to win a malpractice lawsuit against you, he or she must establish that it was more likely than not that you breached the accepted standard of care, and that this breach directly led to damages, says Robert H. Goebel, MD, an oncologist at the Long Beach (CA) Community Cancer Center and a fellow at the Thomas Jefferson School of Law in San Diego. You win if the plaintiff fails to prove both arguments.
By making sure your pathways adhere to nationally accepted guidelines for patient care, you can decrease your risk of litigation by improving your ability to document and justify your clinical decisions, says D. June Forkner, RN, MSN, a consultant at Kaiser Foundation Hospitals and Health Plan in Oakland, CA. "Certainly, in a court of law, if a plaintiff were trying to discredit a clinical path, one of the first things he or she would do is find out if the pathway fit into the guidelines of national professional associations," says Forkner.
For example, say that your cancer program uses a pathway designed after the American Cancer Society’s Clinical Pathways Access to Breast Health Care. On the basis of such a nationally accepted, peer-reviewed pathway, you order annual mammographic screening for a 51-year-old patient. "So if a suit comes up, and the plaintiff says you didn’t give screened mammograms often enough, the American Cancer Society guidelines can stand as evidence in your defense," says Forkner. (See related story on examples of actual court cases, above.)
More importantly, perhaps, using clinical pathways appropriately can prevent lawsuits from ever happening, says Forkner. Pathways can be vehicles for you to strengthen your relationships with patients and educate them about the process of care. They can foster greater communication between patients and providers, improve documentation, and help case managers better coordinate and manage care, Forkner adds.
Communication is especially crucial. Studies show that one reason behind about three-fourths of all malpractice lawsuits is that patients considered their care providers distant and uncommunicative.
"I have polled juries that were leaning toward a finding against my client, and they will inevitably tell me, We don’t think he violated the standard of care, but he treated those people badly,’" says David McLean, JD, of the law firm of Smith, Gambrell & Russell in Atlanta. "He wouldn’t even talk to them after the incident, things of that nature. When I hear that, it chills my blood, because when jurors have that kind of perception, there is very little anyone within the judicial system can do."
"Patient pathways" that explain the process of care in lay terms can help patients better understand what’s happening to them and make them feel more involved, says Forkner. So can initial visits with the patient to address their concerns and answer any questions they might have.
"People are pretty forgiving in general, and they don’t want to believe that someone did something bad on purpose," says McLean. "People can generally understand that mistakes happen."
Pathways also can ward off litigation by ensuring care is properly coordinated, says Forkner. Effective coordination is critical given that, during a typical four-day hospital stay, a patient is likely to see as many as 50 different staff members, according to one study.
"Rather than having seven or eight separate disciplines, each with its own agenda, pathways allow you to standardize the focus of the team," says Forkner. "That allows the team to plan care and see what everyone else is doing. It gets everyone on the same page of the hymnal."
Still, some providers worry that specific pathways could make them more susceptible to legal action, says Goebel. "If you’ve got a pathway that 90% of the people use, and there’s a maverick out there who doesn’t use it, and he has a complication, will the fact that the hospital has a pathway make him more liable? Yes, unless he’s documented that the treatment he’s prescribed is a valid alternative," says Goebel.
Proper documentation and justification for any deviation from the pathway is the key, Goebel adds. "All of our clinical pathways have a variance section with a disclaimer that says, This is what we recommend; these are the norms. If there are variations from this, we expect you to date it and document it.’" If you do that, you shouldn’t be in trouble, Goebel adds. "You want to have it so that compliance with a pathway protects you, whereas reasonable noncompliance with a pathway will not implicate you. And I think that can be done."
Goebel hopes that, in the long run, the use of clinical pathways will enable physicians and national organizations to find a greater consensus on what constitutes an appropriate standard of care. Nevertheless, he cautions, "If we allow technology and algorithms to run our lives and to deprive us of the ability to think analytically and creatively, then we’re going to be worse off than we were before. I don’t think anybody is ever going to be penalized for valid, reflective reasoning that results in a valid clinical decision. And if that goes into court, in most cases, juries will be able to tell what’s right."
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