Clear Communication Helps Avoid Legal Conflict

By: Denise Fulton, Frontline Medicial News

NEWPORT BEACH, CALIF – Doctor/patient communication, informed consent, interpretation services, and referrals are among the important medicolegal issues for dermatologists, Dr. Abel Torres said at the PDA 2016 Annual Meeting.

“I can’t overemphasize the importance of proper communication,” said Dr. Torres, chairman and professor of dermatology at Loma Linda (Calif.) University and president of the American Academy of Dermatology.

Dermatologists are among the medical specialists with the fewest closed malpractice claims against them. Just 1.1% (2,704) of nearly 250,000 claims closed between 1985 and 2008 involved dermatologists, according to an analysis of a Physician Insurers Association of America database published in 2012. Plaintiffs were awarded a payment in 29% (775) of the 2,704 closed dermatologist claims in that period. The median indemnity payment was $35,000 and the average was $137,538 (J Am Acad Dermatol. 2012;66(1):78-85).

In another study, which referred to these results, Dr. Logan S. D’Souza and colleagues looked in an online national legal database for claims from 1989-2011 that were associated with Mohs surgery, and identified 42 cases (JAMA Dermatol. 2015;151(5):529-532). Of those, 26 involved defendants who were not Mohs surgeons. Common causes for lawsuits against Mohs surgeons were lack of appropriate informed consent (5) and cosmetic outcomes (4).

With informed consent, “to me, the rule is the more invasive you get with the patient, the more you need to discuss things with them,” said Dr. Torres, who is also an attorney. “When you seek informed consent, you need to focus on the important issues. Concentrate on the important things and give them the information they need.”

Consider using a tool that might improve how much the patient recalls regarding informed consent, Dr. Torres advised. For example, Dr. David Duffy, a dermatologist in private practice in Torrance, Calif., uses a questionnaire-style informed consent document, said Dr. Torres, adding that, “it’s one way to do informed consent that may be more valid and helps when patients claim ‘Oh, I just signed that, I didn’t know what I was signing.’ If they answered the questions, it’s pretty hard to make that claim.”

Translation services are another issue for dermatologists, Dr. Torres predicted. He recommended the Canopy Medical Translator app, which incorporates dermatology-specific terms and phrases. The app is sponsored by the National Institutes of Health and is available for both Apple and Android platforms. “There’s a free version and a paid version, but the paid version is pretty cheap – I would get it,” he said.

Referrals can also be problematic from a legal perspective. A court in Pennsylvania has ruled that patients can hold their physician responsible if they are referred to an incompetent physician, Dr. Torres said. “What happens with these insurance companies that require you to send your patient to a specific specialist?” In the current era of narrow provider networks, this places a new burden on the dermatologist and other physicians.

Added to that is the impact of a South Dakota court case that was settled in 2015. That case established that a physician has the duty to refer his patient to another doctor when he is not competent to carry out the procedure in question, or when a referral is customary in that situation.

In these situations, Dr. Torres suggested a checklist to protect the physician against potential liability. Documenting information ¬- including whether the referral was required, that you informed the patient adequately, that you sent all appropriate information, that the patient actually saw the physician to whom he was referred, and that follow up was addressed - ¬will go far to guard against potential legal issues.