•Make sure that HIPAA guidelines are followed in the preservation and distribution of medical records. Avoid releasing a patient’s medical record unless proper authorization is obtained.

One option is to utilize preprinted informed consent

forms. The authors prefer to maximize the patient’s medical record for patient care purposes by recording a brief note in the chart reflecting a broad description stating that the risks, benefits, and alternatives (R,B,A) were discussed with the patient and that consent to treatment was obtained. It is preferable to avoid the implication that this is a perfunctory note or chart entry. Criticism of such a note by some attorneys is that if it is too generic, it may be challenged as to its validity of documenting informed consent. To minimize this issue, the authors make it a point to document at least one sentence that indicates an issue that would have been important to the specific patient’s decision. An example of such a note is: “The R,B,A were discussed with the patient with emphasis on risk of temporal nerve damage and the patient agreed to proceed.” In another instance, if a patient with Fitzpatrick type V skin was having an excision performed, it could be of value to indicate the following: “The risks, benefits and alternatives of the procedure were discussed with the patient, with emphasis on the patient’s high risk of pigmentation changes and scarring.” On occasion, such as when the issue may be a very critical one, the authors may ask the patient to read and initial the note to acknowledge that informed consent was obtained.

Summary: Complications in Skin Cancer

Treatment

•The more experienced a Mohs surgeon, the higher the likelihood of encountering a complication in his or her career.

46.5Complications in Skin Cancer Treatment

In the course of a career treating skin cancers, it is inevitable that a complication may occur. However, the existence of a complication may not necessarily lead to an adverse event, subsequent patient dissatisfaction, and, ultimately, litigation [25]. The physician is not powerless and can do much to restore the desired initial outcome by approaching the event in a compassionate,

sympathetic manner, working to ensure the best interests of the patient. These efforts can simultaneously increase patient physical and/or psychological wellbeing and curb initiation of the legal process.

While it may seem that the antidote to lawsuits is greater experience and skill, the evidence speaks to the contrary. It has been shown that the probability of malpractice suits does not decrease as the surgeon’s experience increases. Quite the opposite, studies show that the more experienced the Mohs surgeon, the higher the overall likelihood of him being sued for malpractice [14]. This likely is the result of the greater number of procedures such an experienced surgeon will have performed over the course of a long career.

Mohs surgeons would rightly assume that the most litigious site for complications regarding skin cancer excision and reconstruction is a patient’s face. In fact, in a lawsuit analysis, this assumption was confirmed, with the face having roughly three times the rate of malpractice lawsuits (45%) as the next most litigious site (ear/scalp 18%) [3].

Summary: Rectifying Adverse Events: Key Steps

•Trust building is integral to the physicianpatient relationship.

•The physician must take an active role, particularly listening to the patient’s concerns.

•It is important to be available to the patient while dealing with an adverse event.

•Should litigation arise, the physician should contact the malpractice carrier for guidance.

46.6Rectifying Adverse Events: Key Steps

46.6.1 Build Trust

A common sense but nonetheless critical element in dealing with adverse events is to strengthen the trust between the physician and the patient. Obviously, this is easier if the trust has been strengthened prior to the occurrence of the adverse event. If an adverse event has occurred, it would be unwise for the physician to erode the trust in the relationship by denying the existence of the problem and minimizing its significance. A physician would be well served to address it with honesty and

integrity. If the adverse result was caused by a mistake, a prudent physician will communicate honestly with the patient, making sure to reconcile the facts of the situation. Patients have been shown to prefer such honest communication by their physicians, even if the mistake was minor [26]. However, physicians should be forewarned that the same patient survey showed that even when a physician admits to a mistake in an open, honest communication with patients, there is still a measure of trust lost in the physician-patient relationship. Yet, far greater trust was lost in the survey’s hypothetical scenario where the physician did not disclose the mistake, and the patient uncovered it on his or her own.

46.6.2 Take an Active Role

The physician is usually best served by taking an active role to minimize the impact of the adverse event on the desired clinical outcome. The doctor can begin by actively listening to the patient’s complaints, no matter how trivial, and making sure that he acknowledges the patient’s complaint and communicates his concern for the patient. In discussing the problem with the patient or others, the physician should stay away from offering opinions and discuss only the facts. This is because opinions may often be based on premature conclusions without adequate facts.

If the patient pursues litigation, it is also advantageous for the physician to take an active role and meet regularly with his attorney and malpractice carrier. One of the first steps of the malpractice suit is the deposition. There is much a physician can do to prepare for the deposition, and taking an active role in the preparation can be extremely valuable. The following guidelines can be used while navigating the deposition portion of a lawsuit [27]:

•The deposition is where many cases are won or lost.

•Preparation is crucial.

•Be familiar with the medical records.

•When asked a question, do not rush to answer. Take a deep breath, collect your thoughts, answer slowly, and give your attorney time to object, if necessary.

•Resist the urge to justify rationale; keep your answers simple and brief.

•Opposing counsel will use a variety of tactics and questions to get you, the physician, to say an incriminating statement or admit to something that may look like incompetence.

46.6.3 Help the Patient

The next step a physician should take is to mitigate any injury to the patient. This action can simultaneously aid the patient’s well-being and potentially mitigate legal damages. It is important that the physician takes positive measures that help the patient and stays away from negative actions such as blaming others, if not warranted. Likewise, a physician should accept responsibility for taking care of the complications but should be careful not to acknowledge a premature liability until all the facts are clear. As the physician deals with the adverse event, he or she needs to make sure that nothing is assumed and the facts are carefully investigated. Remember that perceptions may vary from the patient to the staff to the physician, and the perceptions and assumptions have to be separated from the facts. Clarify any misperceptions before they become false facts.

46.6.4 Enlist Help from Others

During this time, it is helpful for both the patient and physician to consult other health care providers, as needed, to provide the optimum care for the patient. In this regard, it is best for a physician to have a pre-exist- ing contact list with the names of trusted providers that will put the patient’s interests above any other agenda (e.g., turf battles, etc.). Similarly, the physician may be stressed by the situation, and it can be tempting to blame others. Nevertheless, the preferred course of action is to avoid criticizing or pointing fingers prematurely. A good piece of business advice that is applicable to risk management is to “praise in public and criticize in private.” This does not imply that anything should be hidden, but, instead, that criticizing in public or prematurely merely creates an environment that is not conducive to finding out the truth or addressing the patient’s needs.

Additionally, if litigation is pursued, the stress on the physician is real and can be immense. This is sometimes referred to as Medical Malpractice Stress Syndrome [27]. Attorneys typically tell physicians not to discuss details of the case with anyone other than the malpractice carrier and their own lawyer. This is prudent advice, as any details of these discussions may have to be recounted at a later date under oath. However, this may lead a physician to feel further isolated,

thereby adding to the level of stress. To help mitigate the stress and isolation, it would be wise for a physician to share his feelings with a spouse or appropriate person while, of course, avoiding discussion of case details.

The following are symptoms of Medical Malpractice Stress Syndrome (MMSS) [27]:

•Sense of shame, bitterness, low self-esteem

•Depression, anxiety, insomnia

•Gastrointestinal symptoms, angina, myocardial infarction

•Sporadic outbursts against others

46.6.5 Be Available

Throughout this period, it is important that the patient have easy access to the physician or someone he or she designates as the contact person. This promotes good patient care and avoids the patient seeking comfort from others that may have different goals or agendas. This easy access reassures the patient and allows for any problems to be addressed in a timely manner before the issues can become more difficult. Having a designated contact person other than the physician is also very helpful. It can prevent misperceptions such as can occur if a misinformed staff member, unaware of the facts, makes a comment that creates undue anxiety for a patient. It goes without saying that honesty is the cornerstone to handling an adverse event, and all communication must be honest.

46.6.6 Contact the Malpractice Carrier

If the situation warrants, the physician should contact his or her malpractice carrier for guidance. This is prudent not only because the carrier may have valuable resources to offer but also because some carriers may have a contractual clause that limits their liability to the physician if they are not informed of an adverse event in a timely manner. Besides contacting his or her carrier, a physician may also organize a meeting with the patient’s significant others. This helps to minimize misunderstandings and often recruits an ally to assist the patient. Of course, federal laws and privacy rules must be observed, and contact of significant others should take place with the patient’s consent.

46.6.7 Preserve Evidence

If the adverse event involves a device such as an electrocautery machine, that device should be evidence that needs to be preserved in its original state until the physician’s investigation of the incident is complete. Preservation of this evidence is important not only because a defective device may pose a future patient care danger but also because the device may be subject to product liability rules, and this can mitigate the liability for the physician.

46.6.8 Document the Facts of the Event

Finally, it is important that the adverse event is documented appropriately. The emphasis should be on documentation for patient care and not for risk management. Thus, it is crucial to avoid premature conclusions, and it is usually better to stick to the facts of what has happened so that a more accurate record is preserved for patent care. Likewise, the records are best left unaltered and should only be altered if essential for patient care. Furthermore, if an alteration is done, any alteration should be carefully documented preferably by lining out the item, initializing, and dating the change. This will prevent any misinterpretation that the records are being tampered with for personal rather than patient care reasons.

Unfortunately, when an adverse event occurs, it is usually accompanied by much stress and anxiety on both the part of the physician as well as the patient. Hopefully, the physician will have read this chapter and follow the steps outlined above to maximize patient care while minimizing legal risk. However, it is likely that the physician will need to refer back to this chapter, from time to time, as a refresher. In the meantime, the following tables may help the physician approach the situation.

The following is the AAA MNEMONIC for handling adverse events:

•A – Acknowledge the complaint.

•A – Accessibility – Be accessible at all times.

•A – Alter not. (Do not alter records!)

The following guidelines can be used while navi-

gating a malpractice lawsuit [27]:

•Two thirds of US physicians are sued at least one time in their career.