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Mitigating Risk

What Neurologists Should Know to Reduce Med-Mal and Other Liability Exposure

Avitzur, Orly, MD

doi: 10.1097/01.NT.0000312108.23219.62
IN PRACTICE

Dr. Avitzur, a neurologist in private practice in Tarrytown, NY, holds academic appointments at Yale University School of Medicine and New York Medical College. She is also the editor-in-chief of the AAN Web site, AAN.com, and chair of the AAN Practice Management and Technology Subcommittee.

For physicians, there is probably no greater heart-stopping event than being served in a malpractice case. Even for those who have never been sued, the threat of lawsuits and the rising cost of malpractice insurance are so demoralizing that some neurologists have scaled back their practices, moved to more doctor-friendly states, or even taken early retirement.

Although most of us have received some generic training in medical liability from our insurance carriers, there are additional issues for neurologists to consider for mitigating risk. To preview the latest information in the legal field, Neurology Today turned to the faculty of a new symposium — “Practical Legal Issues for Neurologists” — being held at the 2008 AAN annual meeting in Chicago.

As a neurologist, Dan Larriviere, MD, JD, director of the half-day course, is aware of the challenges physicians face in today's health care environment. And as an attorney and academic instructor at the University of Virginia (UVA) School of Law, Dr. Larriviere offers a unique perspective on the legal issues that pertain to the practice of medicine. He believes that malpractice lawsuits often start when patients who have experienced harm (or even simply poor care) want to understand why things happened the way they did.

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GOOD COMMUNICATION IS CRITICAL

“When the relationship between physician and patient is strong — if there is good communication and the physician is willing to spend time with the patient to discuss the issues — patients are more willing to resolve the conflict in a way that preserves the relationship,” he said. “If the opportunity for discussion is lost, then the patient may develop his or her own explanation for why things happened and enter into a state of opposition, disagreement, or incompatibility with the physician,” Dr. Larriviere explained, “and it's at that point that the patient may file a lawsuit.”

“During a malpractice trial, the goal is to highlight the weaknesses of the opposing party's case and persuade the jury to support one's own version of what has happened,” said Dr. Larriviere, chair of the AAN Grievance Committee. “Assessing legal risk in our practice has less to do with understanding prior judicial decisions and more to do with whether we communicate effectively.”

Dr. Larriviere, who discussed the genesis of lawsuits in his course “Assessing and Managing Medical Liability Risks” last month during the 2008 AAN Winter Regional Conference, emphasized the importance of communication. He suggested that starting the patient interview with an open-ended question — and waiting quietly to hear the response — may be one of the best ways to demonstrate interest in the patient as a person and establish the foundation of longstanding rapport. As one of Dr. Larriviere's mentors during residency once told him: “When listening to the history, we should be like a potted plant: quiet and still.”

As an assistant professor at the UVA School of Medicine, Dr. Larriviere is aware that when we fall under time pressure, we tend to pepper the patient with questions that we believe will elicit the most information in the shortest period of time. “Sometimes we're more like lawyers than we care to admit,” he quipped, advising, “Resist this urge! Not only does it convey to the patient that we're in a hurry and that all we want to do is to get out of the exam room, but we also risk intimidating and alienating the patient who, as a result, will be less open and honest with us about symptoms.”

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THE EXPERT WITNESS

The subject that seems to generate the greatest discomfiture — even among the most composed neurologists discussing medical malpractice lawsuits — is the role of the expert witness. In response to a growing number of complaints from its members, the AAN Ethics, Law, and Humanities Committee revised its expert witness guidelines in 2005. The guidelines, which are a supplement to the AAN code of professional conduct, can be downloaded at www.aan.com/globals/axon/assets/2687.pdf.

Michael A. Williams, MD, who chairs the AAN ethics committee, said: “There are ways that physicians can sometimes go astray when taking on the role of the expert witness. For example, neurologists who try to take on the role of advocate for whichever side they are testifying are not following AAN expert witness guidelines.”

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The AAN guidelines state that the purpose of medical expert witness testimony is to assist a court or other lawful forum to understand medical evidence or to determine medical facts at issue. “Instead, many physicians think they should be helping their peers who are defendants,” Dr. Williams said.

Dr. Williams, who also intends to offer practical advice to neurologists attending the annual meeting course, emphasized the importance of preparing for a deposition. “Some physicians wait until trial to perform the background work for a case,” he observed. “But, by then, it is often too late. Opposing attorneys will always try to find a way to impeach an expert witness; they love nothing more than an expert who says one thing in the deposition and another in the courtroom,” he explained. “Objectivity is another important attribute. A good expert witness would say the same thing about a case whether hired by the plaintiff's attorney or the defendant's attorney,” he concluded.

“There is more to the law than simply medical malpractice,” Dr. Larriviere said, adding, “Physicians want and need to know about other areas of the law that have an effect on their behavior as well.” And his half-day course focuses on several of these areas — copyright, antitrust issues, and the federal medical privacy regulations, the Health Insurance Portability and Accountability Act.

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COPYRIGHT VIOLATIONS

AAN General Counsel Murray G. Sagsveen, JD, agrees that our risk as neurologists is not limited to medical malpractice. Copyright violations have been an area of growing concern. “Under the ‘fair use’ doctrine of the copyright law,” said Sagsveen, “limited portions of a copyright-protected work may be used, including quotes, for purposes such as commentary, criticism, news reporting, and scholarly reports.” But there are no easy-to-apply guidelines concerning the use of a specific number of words or percentage of a work. If a person uses copyright-protected work without permission, the copyright owner may sue for injunctive relief or damages, that is, infringement action, he said.

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“In such a situation, the burden will be upon the user to prove ‘fair use.’ Obtain permissions whenever possible,” Sagsveen advised. “Do not rely on ‘fair use’ or fall into the trap of hoping that the copyright owner will never find out.”

As for neurologists who are the creators of their own work, Sagsveen suggested they try to retain as much copyright interest in a work as possible. “Instead of assigning all rights (such as to a publisher, for example), try to get by with a license or a reservation of rights.” And if co-authoring a work, he recommended that a written agreement be made with all co-authors addressing key issues such as responsibilities, ownership, terms, credit, payment, editorial decision-making, and dispute resolution.

Sagsveen cautioned that there are times when the true “author” of a work may not be the copyright owner, for example, if the work has been prepared by an employee within the scope of employment. “Organizations and volunteer members of organizations must be very careful about the work-made-for-hire doctrine. If an organization asks a writer who is not an employee to prepare work that can be copyright-protected, both parties should sign an agreement transferring copyright from an individual author, work group, or committee to the organization,” he explained.

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THE GOOD NEWS: A DECLINE IN NEUROLOGY INDEMNITY CLAIMS

There may be some good news for neurologists when it comes to medical malpractice claims. According to the most current Physicians Insurance Association of America Data Sharing Report, the average indemnity per neurology claim was $326,328 in 2006 — dropping 7 percent in the last five years from an average of $350,383 in 2001 — back to where we were 11 years ago.

Even more encouraging was the finding that for the first time in a decade, the average indemnity for neurologists is lower than the average of the 28 different specialty groups analyzed.

What hasn't changed in the past 10 years is the top primary allegation upon which suits were based — medical misadventures — when medical care does not go as planned. The most common medical misadventure in neurology claims was diagnostic error, the primary issue in 33 percent of claims reported between 1985 and 2006. Of these claims, a malignant neoplasm of the brain was the most prevalent condition that neurologists were alleged to have incorrectly diagnosed.

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MEDICAL-LEGAL ISSUES IN NEUROLOGY TODAY

For further reading on copyright protection, see “Know Your (Copy) Rights — How to Protect Your Work (and Others),” July 17, 2007, pages 27–28. For more on expert testimony, see “Neurologist in the Courtroom: How the Profession Regulates Expert Testimony,” Dec. 19, 2006, pages 1, 11–12. See upcoming coverage on other practical legal issues for neurologists in the monthly Legal-Ease column.

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LEGAL ISSUES AT THE AAN ANNUAL MEETING

The half-day course “Practical Legal Issues for Neurologists” will be held Thursday, April 17, from 2:15 pm to 6 pm. Topics will include copyright law, antitrust law, HIPAA law, and expert witness testimony.

©2008 American Academy of Neurology