Legal Insight. Business Instinct.

Lawsuit Avoidance

According to John Davenport, M.D., J.D., Chair of the family medicine department and an attorney and risk manager at Kaiser Permanente Orange County in Irvine, Calif., the typical family physician can expect to be sued about once every seven to 10 years. And the reasons for these lawsuits are endless. So what can you do to protect yourself? According to the American Academy of Family Physicians you must develop a risk-management style of practice involving the four Cs: compassion, communication, competence and charting.


Billing practices say a lot about your level of compassion. It goes without saying that health care costs can place a tremendous burden on families and physician and hospital collection practices can exacerbate those pressures. Contrary to popular myths about bankruptcy abuse, and according to actual statistics published by the federal courts which were summarized in a joint report published in 2005 by Harvard Law School and Harvard Medical School, one half of all bankruptcy filings in the US resulted from catastrophic medical bills.

If a patient is not paying his or her bill it means one of two things, a) the patient cannot afford the bill or b) he or she is not happy with the care they received. A recommended policy is to send three letters. The first letter is a gentle reminder, the second is a little more blunt, and the third informs them you are sending them to a collection agency. This third letter should never be sent without you being aware that the collection action is being taken and without you personally speaking to the patient. Patients that are angry appreciate the chance to be heard and are often more willing to work out payment terms. Health care practitioners, like other professionals, need to be more personally involved and proactive in their billing practices. The patient may not agree with the bill, but they are usually happier that you expressed a willingness to discuss it with them. Happier patients are less likely to sue.


Be honest and open with communications, not only with your patients and their family members but with colleagues and staff as well. Don’t engage is chart jousting: a nurse writes one observation, a physician notes a conflicting observation, and a consultant offers yet a third observation. Plaintiff’s lawyers love to see this as it can be damaging to your defense. It also makes no sense and makes the practitioners appear unprofessional and incompetent.


Remembering everything that is needed for the care of every patient is impossible. You can however, improve your competency by using flow sheets, protocols and other tools that help reduce overlooked items. Also, when a patient isn’t recovering as quickly as expected do not be afraid to seek consultation.


The greatest charting mistake physicians make is writing volumes in some type of attempt to avoid litigation but failing to note what is important. This has to be one of the greatest myths sold to physicians, i.e. that more is good. Instead it is like the rambling witness at trial who likely would have stayed out of jail had he or she simply stuck to the facts. There is no need to write a novel, instead get to the heart of the problem. Be as clear and precise as possible. Other common mistakes are altering records after the fact and making personal comments about the patient. If you need to alter a chart or note, always initial and date the change with some type of explanation as to why the alteration was made. Unexplained alterations in documents are one of the most powerful weapons a plaintiff’s lawyer has; juries will invariably note the problem and hold it against the practitioner making the alteration. Always approach documentation in an honest and thoughtful manner. Be objective and legible.

There is no guaranteed immunity from lawsuits; however, expressing compassion for your patients, developing good communication habits, maintaining clinical competence, and producing accurate charts can go a long way toward reducing liability.

*Family Practice Management – – March 2004

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