Second don’t get sued

Managing the risks of healthcare malpractice

Michael G. Lloyd, MSc, MBA, CPCU, ARM, HCQM, CPHRM, EMT-P

Principal, Medex Risk Management

First do no harm

Medex Risk Management

About the risk manager

• Working in healthcare risk management, quality, patient safety, compliance, professional liability insurance and liability claims for healthcare clinicians, healthcare staff and healthcare facilities since 1983.
• Clinical experience includes emergency medical services and oncology research
• Board certified in insurance, healthcare quality, risk management and healthcare risk management
• Handled hundreds of malpractice claims
• Worked at WK&G, PI, TEC, two FQHC, and Providence
• Part of the team that set up VRP at PI 1992
• Consulting in risk management, quality, liability insurance and claims since 1990�

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Medex Risk Management

Disclosure, ownership, and disclaimer

• I do not work for WHAA or any member clinics
• I am an independent consultant doing business as Medex Risk Management
• I volunteer my time to WHAA
• I have no other financial disclosure or conflicts of interest arising from the material presented here
• I have independently created this material and retain all intellectual property rights and copyright over the material
• The contents of this material are intended to convey general information only, is for educational purposes and not to provide specific legal or clinical advice 

Medex Risk Management

Why do people file malpractice claims?

• Concern with standards of care—both patients and relatives wanted to prevent similar incidents in the future;
• The need for an explanation—to know how the injury happened and why;
• Compensation—for actual losses, pain and suffering or to provide care in the future for an injured person; and
• Accountability—a belief that the staff or organization should have to account for their actions.

Multiple sources

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Malpractice claims

• In recent years, the number of malpractice claims has dropped but the severity has increased: less claims but more money paid out
• For ambulatory care, out of every 100 claims, about 70 will have money spent on lawyers to defend the case, but only 30 will have money paid out to the patient in a settlement, verdict, or award
• Most cases with money paid out to the patient do so by settlement.
• Only around 10% of cases go to trial
• Most of the time, when a case goes to trial, the healthcare defendant wins: more so for a dentist or physician, less so for a hospital

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2025 OIC malpractice report

• 2994 paid claims closed between 2020 and 2024
• 47.7 % of all claims resulted in $ 1.1 billion total indemnity paid averaging $ 777,650
• 21.1% claims with $ 1 million or more paid
• Defense costs of $ 241 million with average paid $ 87,338
• Most of the claims occurred in the hospital, a medical clinic or a dental clinic
• Most of the claims involved nurses, physicians or dentists
• Improper performance, vicarious liability and diagnosis issues were the most common claims

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Medex Risk Management

Most common PCP claims

• Missed or delayed diagnosis
• Breast, colon, lung, prostate cancer, MI and PE in adults; meningitis, leukemia, fractures and appendicitis in children
• Medication issues
• Failure to monitor patient, wrong dose, wrong indication, interactions, contraindications, inappropriate prescribing, and administration errors
• Pregnancy and childbirth
• Fetal distress at labor leading to neurological injury, diagnosis of ectopic pregnancy, preeclampsia, and prenatal management of gestational diabetes
• Causes of claims
• Delays in treatment, consult or tests; communication between healthcare team and patient; follow-up on findings; clinical judgment; patient assessment; and ruling out serious problems

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Medex Risk Management

Most common general dental claims

• Complications from extractions
• Fractured mandible, infections, wrong tooth, nerve damage
• Complications from endodontic treatment
• Infections, instruments broken in canal, sinus perforations, nerve damage
• Complications from implants
• Unrestorable implants, implants placed in nerves
• Complications from crown and bridge work
• Open margins, poor occlusion, overhangs
• Complications from diagnosis
• Delayed or missed diagnosis of oral cancers and perio disease

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Charting risk management 101

• If it is not in the chart, it did not happen
• Can your colleagues care for your patient based only on your chart?
• Cases can be won or lost based on the charting
• The primary means of defending a malpractice claim or disciplinary complaint is the chart
• Good charting equals a good defense, bad charting equals an inability to defend the case
• Remember that under state and Federal law, a patient can read or get a copy of their chart at any time

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Medex Risk Management

Medical charting liability issues

• Failing to note the important positive and the pertinent negative findings resulting in lack of detail
• Inadequate HPI, PMH, medications, allergies and other history
• Not modifying templates to fit the patient (ROS, exam and symptoms)
• Not documenting instructions on patient follow up on RTC, test results and referrals
• No documentation of the informed consent/refusal process (discussion and form)
• Copy forward/copy and paste of inaccurate or outdated information

Medex Risk Management

Medical charting liability issues

• Poor documentation of clinical decision making and rationale, especially with multiple treatment options
• No documentation of treatment options
• Not documenting patient non-compliance
• Not documenting that the patient declined treatment or selected a less desirable alternative
• No documentation of discussions with patients and family members
• No documentation of shared decision-making

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Medex Risk Management

Dental charting liability issues

• Lack of detail showing your thought process
• No updated medical history
• Not documenting instructions on patient follow up on RTC, test results and referrals
• Not documenting instructions on post-procedures
• No documentation of the informed consent/refusal process (discussion and form)
• No documented followup on significant findings upon exam
• No documentation of shared decision-making
• No documentation of non-compliance
• No documentation of adverse events/outcomes and your response

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Informed consent

• RCW 7.70.050-.068 is the statutory law
• Informed consent is a communication process between clinician and patient; not just a form
• Discuss P-A-B-R-C and document in the chart
• Procedure: what it is and why it is being done
• Alternatives: other feasible treatments
• Benefits:
• Risks:
• Complications
• Significant legal advantages to using a form signed by the patient

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Follow up of patients

• Lots of people fall through the cracks with critical test results, high-risk appointments or referrals that are not followed up on
• Tracking systems for missed appointments or lab results
• A protocol for who is in charge of identifying missed follow up events with timelines for contact, methods of contact, and chart documentation
• Informed refusal for patients consistently failing high risk follow up events

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Equipment and materials

• Dental infection control
• Follow best practices
• Policy and procedure for testing, monitoring, maintenance and servicing of equipment
• Monthly walk-throughs looking for proper storage, stocking, and turn over of drugs and supplies
• Equipment checks and maintenance of biomedical and other equipment as per manufacturer recommendation
• Records of all this is essential especially in a look-back situation

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Patient termination/abandonment

• Everyone should have a policy and supporting documents on terminating a patient
• The most common reasons for termination are abusing the staff, threats or actual violence, non-compliance or no-shows, and narcotics.
• Treating clinician should approve termination
• Give the patient written notice:
• 30 days or immediately if for violence
• Routine/urgent care for those 30 days
• Referral to other source of care
• File copy of notice in the chart
• Flag the chart for no more appointments

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Medex Risk Management

What is disclosure of adverse events?

• Adverse event: unintended outcome of a treatment or procedure that results in an actual or potential negative consequence to the patient
• Simply put, we treat the patients the same way we would like to be treated if something bad happened to us
• We want people to be open and truthful with us
• We want to hear what happened
• We want to hear an explanation
• We want to be part of the decision making
• We want to hear what happens next
• We want to hear what you are doing to prevent this in the future
• We want to hear an apology
• Sometimes we want money

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Medex Risk Management

History of disclosure

• Disclosure of adverse events has been around for decades, but in recent years has become more structured and in some cases required.
• It all started with the VA Medical Center in Lexington, KY back in 1989: a paper was published in 1999 showing their ten year median liability payments was 80% less than the private sector
• In 2001, the University of Michigan implemented a disclosure program which resulted in a 50% reduction in the number of lawsuits filed and defense legal payments

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Medex Risk Management

Washington state law on apology

• RCW 5.64.010
• Civil actions against health care providers—Admissibility of evidence of furnishing or offering to pay medical expenses—Admissibility of expressions of apology, sympathy, fault, etc.
• (1) In any civil action against a health care provider for personal injuries which is based upon alleged professional negligence, or in any arbitration or mediation proceeding related to such civil action, evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible.
• (2)(a) In a civil action against a health care provider for personal injuries that is based upon alleged professional negligence, or in any arbitration or mediation proceeding related to such civil action, a statement, affirmation, gesture, or conduct identified in (b) of this subsection is not admissible as evidence if:
• (i) It was conveyed by a health care provider to the injured person, or to a person specified in RCW 7.70.065 (1)(a) or (2)(a) within thirty days of the act or omission that is the basis for the allegation of professional negligence or within thirty days of the time the health care provider discovered the act or omission that is the basis for the allegation of professional negligence, whichever period expires later; and
• (ii) It relates to the discomfort, pain, suffering, injury, or death of the injured person as the result of the alleged professional negligence.
• (b) (a) of this subsection applies to:
• (i) Any statement, affirmation, gesture, or conduct expressing apology, fault, sympathy, commiseration, condolence, compassion, or a general sense of benevolence; or
• (ii) Any statement or affirmation regarding remedial actions that may be taken to address the act or omission that is the basis for the allegation of negligence.

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Medex Risk Management

Benefits of disclosure

• First and foremost, it is simply the right thing to do
• Strengthens the therapeutic relationship
• Ethical requirements are met
• Makes the clinician sleep better at night with a clear conscience
• Some people believe that disclosure lowers the numbers of lawsuits filed and the amounts paid out. This may be true only in certain government and academic settings that have immunity, limits or caps on lawsuits. The commercial malpractice insurers have not seen a drop attributable to disclosure or apology

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Medex Risk Management

What to disclose

• AE causing death, disability, prolonged hospitalization, require intervention to sustain life or prevent disability, or sentinel events
• AE expected to have a significant perceptible effect on the patient
• AE requiring additional care to the patient
• AE with a clinically-significant risk of serious future health consequences to patients
• Do we disclose events that did not result in harm, are not known to the patient or were a close call that did not reach the patient?
• Disclosure can be a judgment call

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Disclosure framework

• - Who: The attending clinician should lead. At least two team members should be present��- What: Communicate only factual information. Reassure that updates will follow as information becomes available��- When: Disclose as soon as reasonably possible, even if all facts are not yet known. Emphasize this is an ongoing process��- Where: A quiet, private, confidential setting comfortable for the patient��- How: With empathy, respect for patient dignity, and in plain language�

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Disclosure bullet points

• Gather facts beforehand — investigate so the most accurate information is shared��2. Explain what happened and how it happened (it may not be possible to explain why)��3. Focus on the patient's condition, concerns, and treatment plan��4. Express appropriate regret — understand the difference between sympathy (acknowledging suffering), apology (accepting accountability) and admitting liability��

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Disclosure bullet points

• 5. Describe what will be done to prevent recurrence��6. Develop a treatment plan with the patient to remedy/mitigate effects of any injury��7. Use understandable language and minimize patient stress�

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Disclosure checklist- before meeting

• Gather and verify known facts
• Notify risk management/legal per institutional policy
• Write down a disclosure plan, assign roles, and map out what you want to say
• Hold a predisclosure team huddle
• Identify who will lead the conversation (attending clinician preferred)
• Arrange a private, quiet setting
• Encourage the patient to bring someone with them�����

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Disclosure checklist –during meeting

• Explain what happened in plain language
• Express sympathy/regret
• Focus on the patient's current condition, care plan, and support
• Describe steps to prevent recurrence
• Acknowledge what is not yet known; commit to follow-up
• Allow the patient/family to ask questions and be heard
• Don’t bring up compensation. If they do, tell them you have to refer that onward �

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Disclosure checklist –after meeting

• Document the conversation (when, where, what was discussed and who was present)
• Schedule follow-up communications as needed
• Is any quality investigation indicated such as a root cause analysis and consider sharing findings with the patient/family
• Support involved team members (second victim)
• Implement any system improvements from the event and monitor outcomes
• Most disclosures of minor events are not as elaborate as described here

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When to contact Risk Management

• Receipt of any legal papers pertaining to a patient
• Receipt of any letters from a state agency regarding a patient complaint
• An attorney contacts you to discuss a patient
• One of your patients has had a significant adverse outcome related to our care
• You are aware of angry or unhappy patients or families after an adverse outcome
• Report a patient death or injury related to our care

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Medex Risk Management

When to contact Risk Management

• Report a serious safety concern, significant adverse event, or a near miss
• Ask a question about guardianship, treatment of minors, powers of attorney or the like
• Discuss how to manage a difficult patient or difficult situation with a patient
• You are thinking about discharging a patient from the practice
• You have a medical/legal or risk question or issue

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Medex Risk Management

How to avoid risk management

• Be thorough and complete in your charting
• Patients are not likely to sue clinicians that they know and trust
• Knowing and trusting you is grounded in communication. Clinicians who practice patient-focused communication show empathy and respect, listen attentively, elicit patients' concerns and calm fears, answer questions honestly, inform and educate patients about treatment options, involve patients in medical care decisions, and demonstrate sensitivity to patients' cultural and ethnic diversity
• Talk to me or PI early and often. If you are wondering if you should talk to me, you probably should.

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How to contact me

• Remember to contact Michael Lloyd for anything related to ambulatory patient safety or risk management. I am always happy to help any colleague, student or faculty for free
• For urgent issues, text my cell phone at 360-348-7180
• Best way to reach me: medexriskmanagement@gmail.com or Michael.Lloyd@gmail.com
• I can also be reached via WHAA
• u/Arlington2018 on Reddit

Medex Risk Management

Medex Risk Management