Malpractice Avoidance Strategies

I interviewed an emergency physician and insurance executive who says the "deny and defend" era of medicine is over. William Kanich MD JD, Executive Chairperson of MagMutual, joined me to discuss how physicians should handle unexpected medical outcomes. For generations, the fear of litigation has caused doctors to "clam up" when things go wrong. But silence is often what destroys trust. Dr. Kanich argues that patients today expect transparency, not perfection. They understand that even the best gastroenterologist will have complications. What they don't accept is being left in the dark or stuck with a bill for a medical error. We discussed MagMutual's Preserve program, which offers a structured approach to these difficult conversations. It combines communication support with financial reimbursement, ensuring that patients aren't left paying for additional care resulting from an adverse event. Dr. Kanich offered practical advice for physicians facing these moments: Prepare: Anticipate the tough questions before you walk into the room. Be Honest: It is okay to say "I don't know" rather than speculate. Avoid Jargon: Speak human-to-human, not doctor-to-doctor. Document the Spirit: When charting these conversations, document not just the medical facts but the intent and content of your discussion. His biggest takeaway? Don't let fear of a lawsuit dictate your patient care. If you are transparent, empathetic, and proactive, you can preserve the relationship even when outcomes aren't what anyone hoped for. 🎙️ Listen to this special sponsored episode from MagMutual on The Podcast by KevinMD. (Link in the comments ⬇️) #KevinMD #PatientSafety #RiskManagement #MagMutual #MedicalMalpractice #PhysicianLeadership

ED Physicians... want to avoid a malpractice case? Record your consult times. ___________ I review a lot of medical malpractice cases. A VERY large percentage of these cases involve ED physicians (or PAs/NPs) consulting specialists for guidance, admission, etc. One problem I see CONSISTENTLY is the lack of adequate documentation about these consults. More specifically... the note does not reflect the EXACT time the consultant was called... EXACTLY what was discussed... and EXACTLY what the next steps in management were. Why does this matter? It is very common for a consultant to say in deposition, something along the line of "The ED doc never mentioned that"... or "I didn't get a call until an hour after the CT was done"... etc... So... please don't rely on the time stamps in the medical record... or the unit clerk properly documenting the time of the call... or the "recorded line" we all think is listening to us.... all of these things will conflict with each other and are usually wrong or missing. Instead, have a notepad at the desk... write down the time you made the call... the time the call was returned... and a quick outline of what was discussed. Then, when you complete your EHR entry later... it's all there. This is not "defensive documentation".... I really dislike that phrase. This is "accurate documentation" that will keep you off the stand and maybe even prevent being named and deposed. (If you need an example, DM me and I'll guide you to a plaintiff podcast episode released this week where this exact scenario saved the ED providers from being involved in a really bad case.)

A physician colleague recently asked me: "What's the one thing emergency physicians could do to reduce their malpractice risk?" My answer surprised them: "Document your thinking, not just your conclusions." In reviewing cases, I've noticed a pattern: Physicians who document their clinical reasoning - why they ruled out certain diagnoses, what specific findings reassured them - fare much better than those who simply document conclusions. Compare: "No evidence of fracture" vs. "No point tenderness, normal ROM, weight-bearing without difficulty" "Viral syndrome likely" vs. "No focal findings, normal vital signs, good hydration status" The difference is subtle but powerful. The first documents only the conclusion; the second reveals the clinical reasoning. This simple documentation approach demonstrates thoughtful care and makes it much easier to defend reasonable clinical decisions, even when outcomes aren't ideal. #RiskManagement #MedicalDocumentation #PatientCare

The same communications skills that prevent medical malpractice lawsuits win them. I saw it in my practice, and the research supports it. I just listened to the CRICO Safety Net podcast with Jay Boulanger and Dr Adam Schaffer about the recent report showing that 40% of cases involve communication failure, and that number is rising despite the tech we now use to "communicate". It was a great conversation about communication as a durable contributor to medical malpractice loss. Communication skills can be taught and honed. We focus a lot on communication when there's a complication, but it's the everyday interactiosn that matter most. Those are the interactions that a patient (and a jury) feels and remembers. Here are just some of the communications skills that I teach HCPs so they can prevent these suits--and win them. 1-Listen carefully. When you listen to patients and their families, they feel that as compassion. They feel seen, safe and special. When you listen to jurors about their challenges, concerns and ideas, they do too. 2-Take concerns seriously, instead of shrugging them off. Research shows that patients often sue because they feel ignored. And when defending a case, you can't ignore the bad facts. You need to own them. 3-Keep focus on the patient and don't get distracted. Patients feel your disinterest when you focus on the record rather than them. On the other hand, they feel your focus on them as compassion. Jurors feel it when you're focused on their challenges, concerns and implicit biases. They also feel it as compassion. The right communication skills can lead to fewer lawsuits to defend, and more wins when you have to defend them.

Modern-Day Malpractice Isn’t What You Think As one of the nation’s <loudest> emergency physicians and as an expert witness, I’ve reviewed dozens of malpractice cases. Most weren’t about errors. They were about inertia—physicians clinging to outdated habits long after the evidence moved on. We’re now in a new legal-medical era: evidence-based care is replacing “standard of care” as the real line in the sand. And those hiding in the margins of the knowledge translation window? They’re increasingly exposed. Here are 5 practices I still see routinely that amount to modern-day malpractice: 1. Full spinal immobilization for blunt trauma Not evidence-based. No proven benefit. But still used—because “that’s how we were trained.” I’ve seen these cases weaponized in court. 2. Pediatric abdominal X-rays for constipation They don’t help. They confuse the picture. They’re recommended against by pretty much every academic society in medicine. And yet they’re ordered reflexively, especially at night or in pediatric or community facilities. Defensive medicine at its most indefensible. 3. Benadryl as frontline for allergic reactions It’s not first-line. It sedates without addressing histamine receptors that matter. Use a second-gen H1 blocker. We’ve known this for years. AAAI said so in 2013. Catch up, dinosaurs. 4. Standing EMS takedowns Still seen in prehospital care, despite risk of injury, cervical strain, and no benefit. It’s performative protocol masquerading as safety. 5. Treating “standard of care” as safe harbor This is the silent one. “But everyone does it” no longer holds water. When the literature says otherwise, the courtroom does too. I’ve testified in cases where the plaintiff’s strongest evidence was the spinal board itself. The presence of outdated tools and orders is starting to speak louder than intent. The docs who cling to “that’s the way I was taught” and who can’t explain themselves out of a paper bag are rightfully destined for evisceration. This isn’t a call-out. It’s a wake-up. Malpractice today isn’t just about what you do wrong—it’s what you refuse to update. And the longer the lag, the greater the risk.