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    Avoiding medical negligence claims

    A former plaintiffs' attorney and physician explains why practicing defensive medicine doesn't work — and tells you what does

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    David M. O'Dell, MD, JD, MBA, MHSM
    Since the days of tapping on my mother's knee with our family doctor's percussion hammer, I have wanted to help people achieve better health. Practicing solo ob/gyn in a small town during the medical malpractice crisis of the 1980s generated emotional and physical burnout, which created an impetus for change from clinical medicine.

    The next-best option for improving the health of the populace was to attend law school and embark on a career of trying to protect the medical profession from the ravages of plaintiffs' medical malpractice trial attorneys—a noble goal right up to the time that I graduated and somehow became one myself.

    Using my two decades of medical training and experience, together with a newfound legal perspective, I became expert in spotting the rub in medical care for all manner of specialties.

    After reviewing thousands of medical charts, and interviewing hundreds of prospective clients who were the purported victims of medical negligence, general patterns of malpractice began to emerge that repeatedly formed the basis of successful claims against providers and healthcare facilities. I have seen the light—and it's in the examination room, not the courtroom.

    PEER REVIEW POLICING OF MEDICINE

    The ultimate answer to the question of how to avoid medical negligence claims lies in prevention, not cure. It is fiscally and physically counterproductive to employ defensive medicine tactics to avoid attacks by the legal enforcers of alleged negligent care.

    More important is avoiding allegations of negligence when there are, inevitably, negative results from even the best of care.

    What follows are solutions—how the healthcare delivery system can police itself and obtain the most effective form of tort reform: economic nonviability.

    DEALING WITH STANDARDS

    Understanding and dealing with the ubiquitous presence of standards is a requirement for 21st century healthcare delivery. Evidence that applicable standards of practice were strictly followed is the key to preventing a successful legal challenge to a suboptimal patient outcome.

    Since this is a legal-medical analysis, it must start with the legal definition of what constitutes a proper medical standard of care. The example below is from the 2006 edition of the Texas Pattern Jury Charge. The definition is used to answer the question: "Was the healthcare provider/facility negligent, yes, or no?"

    According to the book, " 'negligence,' when used with respect to the conduct of [doctor, nurse, healthcare facility], means the failure to use ordinary care, that is, failing to do that which a [doctor, nurse, healthcare facility] of ordinary prudence would have done under the same or similar circumstances, or doing that which a [doctor, nurse, healthcare facility] of ordinary prudence would not have done under the same or similar circumstances.

    'Ordinary care,' when used with respect to the conduct of [doctor, nurse, healthcare facility], means that degree of care that a [doctor, nurse, healthcare facility] of ordinary prudence would use under the same or similar circumstances."

    Simply stated, the proper standard of care for a board-certified physician or facility to use is what they "ought to have done" in a case a jury is evaluating.

    Juries decide whether the healthcare provider did what they, as intelligent humans with a proper sense of right and wrong, would have done if they had been in the same situation. Listening to their private deliberations reveals controlling sentiments such as, "He should have known that a stomach ache could be a heart attack." Or, "Why do the test if you are not going to check the result?"

    The strictest medical scrutiny is for not avoiding common human failings: being careless, forgetful, inattentive, or lazy. Sound judgment, caution, and caring are the key standards of care.

    One can argue that the proper standards of medical care should be explicitly defined and determined by experts' testimony in the specific field of medicine. But that misses the point. The expert witnesses are not the decision-makers. Juries have personal standards, and if you favor standardized medical guidelines, be careful what you wish for, because those guidelines may mean less to a jury than their own standards.

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