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Johnston, James C., MD, JD


Consultant Neurologist and Attorney at Law, Chief of Legal Medicine Consultants, LLC, San Antonio, Texas

    Malpractice actions have a disproportionately adverse impact on neurology, which may be explained by several unique factors inherent to the specialty. First, the unprecedented growth of sophisticated neurodiagnostic tests, the proliferation of neuropharmacological agents, and the advent of more invasive procedures raise the standard of care, increasing the level of accountability and hence likelihood of suit. Second, neurologists confront a diverse array of legal issues beyond the scope of traditional practice precipitating a variety of claims. Third, neurology engenders liability beyond the physician-patient relationship to include a host of third party potential claimants. Fourth, the very nature of neurological disease or injury spells a grave outcome for many patients. The confluence of these factors may herald a shift transforming neurology from a low risk specialty to one plagued by malpractice claims.

    Neurologists must adapt their practice patterns to comport with the evolving legal climate. Dr. Thomas Glick suggests more second opinions and more imaging studies for the most prevalent neurological misadventure – diagnostic error. These are certainly valid recommendations for the inexperienced, poorly trained, or hurried neurologist who fails to perform an adequate history and examination. Unfortunately, there are no data to suggest that either option will reduce the claims rate.

    Moreover, the majority of misadventures are unrelated to diagnostic error and include, inter alia, no allegation of improper medical conduct, improperly performed procedure, failure to monitor a case, procedure performed when not indicated, delay in performance, failure to recognize a treatment complication, and delay in referral. Regardless of the misadventure, it is important to recognize that providing care that meets or exceeds the prevailing standard will not shield the neurologist from a lawsuit.

    The essential features of effective risk management and successful malpractice defense are a solid physician-patient relationship, valid consent, and proper documentation. Most suits are actually triggered by a breakdown in the physician-patient relationship due to poor communication – it is essential to meet patient expectations through effective communication. Informed consent issues are a frequent source of malpractice suits, wholly unrelated to negligence claims. It is crucial to ensure that all consent issues are fully addressed. Poor documentation is the leading factor in the forced settlement of most suits. Records must be clear, accurate, legible, complete, and timely without alteration or spoliation. Remember the legal maxim: “If it's not in the record, it never happened.”

    Neurologists adhering to these core principles will improve patient care and minimize malpractice liability.

    Section Description

    In the September “In Practice,” column, Orly Avitzur, MD, analyzed the findings of the Neurology Data Sharing Project, in which indemnity claims were made involving patients with neurological problems (page 42). We asked readers to respond with ideas on ways neurologists can cut down on claims and improve patient safety.

    ©2004 American Academy of Neurology