Treating ‘difficult’ patient differently can backfire legally for physician

Executive Summary

If a physician believes a particular patient is likely to sue, he or she should ensure that the care the patient receives are similar to every other patient in the practice.

Plaintiff attorneys can argue that a patient was treated differently due to race, gender, or sexual orientation.

Inappropriate charting on "difficult" patient behavior can cause serious problems for the physician’s defense.

If patients have unrealistic expectations that a particular test or medication should be ordered, documentation showing the physician’s medical decision-making can be helpful.

If a physician gets the impression a particular patient is likely to sue, "he or she should trust their instincts," advises Damian D. Capozzola, JD, of The Law Offices of Damian D. Capozzola in Los Angeles.

"If someone seems to be inclined to litigation or otherwise to be a troublemaker beyond asking the typical questions and displaying the expected emotions that patients and their family members convey in difficult situations, there is probably a basis for that perception," he says.

As with any patient, physicians should order the appropriate tests and prescribe the appropriate medicines without overtreating, says Capozzola, and document observations and conclusions thoroughly. "This does not mean that the suspected litigious patient should be treated differently than other patients, only to take extra care that the same standard of excellence aspired to with every patient is met," he says.

If physicians do treat a "difficult" patient differently from other patients, this situation can backfire legally, notes Capozzola. Differential treatment could include overprescribing or underprescribing medications, or requiring the patient to fill out burdensome forms that other patients are not required to fill out.

"A crafty plaintiff’s lawyer can tie the different’ treatment to allegations, whether legally relevant or not, that someone was treated differently and thus mistreated," he says. The attorney could argue this treatment was because of the patient’s race, gender, or sexual orientation.

"Some patients have unrealistic expectations of testing or pain medications that should be ordered," says William J. Naber, MD, JD, CHC, an assistant professor in the Department of Emergency Medicine at University of Cincinnati.

Naber adds that in some cases, clear documentation of the interaction with the patient, and relevant medical decision making on why a test or medication was not ordered, can make a subsequent malpractice claim more defensible. "However, never write anything you would not want your mother or a jury hear you say about another person," says Naber. "Providers are professionals. Their behavior and medical record should reflect this."

EMR is powerful defense tool

If there is ever a dispute between a plaintiff and a provider on what happened, Naber says a contemporaneously recorded and professional medical record is a powerful defense tool and very persuasive to a jury.

"That way, the provider can clearly and honestly say their recollection is accurate," says Naber. "It is reflected in the medical record documented at the time of the incident, not based on a selective memory several years later."

Avoid inflammatory comments

Medical professionals, when charting an encounter with a "difficult" patient, should recognize that everything they write could someday be evidence during litigation, says Naber.

"Physicians who think they are helping themselves by loading up the medical records with unflattering descriptive adjectives about a patient will find they have done themselves a disservice when cross-examined about those potentially unprofessional terms in deposition or at trial," says Capozzola.

It is critical to keep descriptions clinical and professional, he underscores. "The safest course is to never write something down or type something out about a patient, even in jest, unless you would feel comfortable seeing it blown up on a projection screen in court and attributed to you," says Capozzola.

Phillip B. Toutant, Esq., an attorney in the Southfield, MI office of The Health Law Partners, says documentation is very important when a physician is caring for a "difficult" patient, "but only if it is done with tact," Toutant says.

He has seen cases in which notes in the chart that document "difficult" patient behavior have caused serious problems for the physician’s defense. "That being said, I think that documentation of problem patient’ issues assists in the defense of malpractice cases," says Toutant.

SOURCES

• Damian D. Capozzola, JD, The Law Offices of Damian D. Capozzola, Los Angeles. Phone (213) 533 4112. Fax (213) 996 8304. Email [email protected].
• William J. Naber, MD, JD, CHC, Assistant Professor, Department of Emergency Medicine, University of Cincinnati (OH). Phone: (513) 600-4749. E-mail: [email protected].
• Phillip B. Toutant, Esq., The Health Law Partners, Southfield, MI. Phone: (248) 996-8510. Fax: (248) 996-8525. Email: [email protected].