Physicians have been managing unexpected outcomes of care, treatment, and medications since prehistoric times. Written records, which emerged in the 18th to 16th centuries B.C., and paper charting from the late 1700s captured these outcomes long before our modern-day digital record-keeping.1
A study by the American Medical Association released in 2023 found that nearly a third of all physicians reported having been previously sued. However, the study also revealed that two-thirds of claims are dropped, dismissed, or withdrawn without a finding of fault and, in nearly nine out of ten cases that go to trial, the defendant prevails.2 Despite these mostly positive outcomes for defendants, healthcare professionals experience feelings of self-doubt, remorse, failure, and fear of litigation after experiencing an unexpected outcome or adverse event.1
The best way for medical practices and their healthcare practitioners to avoid a lawsuit is to utilize the educational resources of their medical professional liability carrier’s risk management department to educate healthcare practitioners and their support staff about patient safety and risk reduction. The education is best when it’s interactive and uses a variety of teaching methods. Education can also have a positive effect on performance if it occurs continuously in regular intervals, is reinforced with team discussions, and is supported with adjunct resources.
This article will introduce you to three best practices to help reduce your chances of facing a malpractice lawsuit and increase defensibility if you face one: shared decision-making, effective communication, and comprehensive documentation.
For general information on avoiding lawsuits, check out our Resident Rundown podcast episode, “How to Avoid Lawsuits.”
Best Practices and Resources to Reduce Malpractice Risk
Shared Decision-Making: According to one study, “Participants exposed to shared decision-making reported higher trust, rated their physicians more highly, and were less likely to fault their physicians for [an] adverse outcome compared with those exposed to the no shared decision-making.”3
-
ClaimsRx: “Clinical Ethics and Risk Management: Patient Well-Being Wins the Day” (Case 3) We interviewed Lea Brandt, Director of the University of Missouri Center for Health Ethics for this article. Her views on the ethical issues within the case studies presented are woven throughout this article and support the risk reduction strategies offered, such as shared decision-making.
- ClaimsRx: “Avoiding Allegations of Sexual Misconduct: Ethical Standards, Legal Consequences, and Best Practices” (Case 3) Communication, patient education, informed consent, and shared decision-making are highlighted in the Federation of State Medical Board’s guidelines as critical elements to meet patient expectations for professional conduct.
Comprehensive Documentation: Communication breakdowns are a leading cause of patient harm and malpractice claims.4 Good clinical documentation in the medical record can be the difference in defending a case or avoiding a claim altogether.5
-
20% of MPL cases involved documentation failures
- 140% higher odds of closing with an indemnity payment
- 50% of documentation cases involved a high-severity injury or death vs. 41% without
Unfortunately, medical students, residents, and physicians get very little education on proper documentation during their training.6
-
ClaimsRx: “Medical Record Documentation: Paint the Clinical Picture with Complete and Accurate Documentation” In this article we discuss some common documentation errors and resulting claims associated with them. We also discuss risk mitigation strategies to minimize the likelihood that these errors may lead to medical malpractice claims.
- Malpractice Case Study: “Failure to Document and Implement Pressure Ulcer Prevention Protocols Leads to Adverse Outcome” Although the resident likely received some level of care in this case, the absence of timely and detailed documentation rendered the facility unable to demonstrate compliance with accepted standards.
Effective Communication: Poor communication is a leading cause of patient harm and malpractice claims and is a factor in nearly two-thirds of communication-related malpractice cases between the provider and the patient or family.4
-
ClaimsRx: “Unexpected Outcomes: Investigate, Communicate, Document” This article will introduce the reader to a method for investigating unexpected outcomes, including effective communication.
- Malpractice Case Study: “Failure to Properly Communicate Radiology Exam Findings Leads to Delay in Breast Cancer Diagnosis and Treatment” The failure to properly notify the patient of her mammogram findings—by both the radiologist and PCP—led to a significant delay in her diagnosis and treatment, resulting in the progression of her cancer and the need for more aggressive care.
References
1. Michele Crum, MSM, MSN, RN, CPHRM, FASHRM, “Unexpected Outcomes: Investigate, Communicate, Document,” ClaimsRx, November 2024.
2. American Medical Association, “AMA: One in Three Physicians Previously Sued in Their Career,” Press Release, May 10, 2023.
3. Elizabeth M. Schoenfeld, et al. “The Effect of Shared Decisionmaking on Patients’ Likelihood of Filing a Complaint or Lawsuit: A Simulation Study,” Annals of Emergency Medicine, 2019; 74, 126-136. DOI: 10.1016/j.annemergmed.2018.11.017.
4. CRICO, “New Candello Report Reveals Communication Failures Between Providers and Patients are Rising,” Press Release, November 17, 2025.
5. Christine Ringler, et al., For the Record: The Effect of Documentation on Defensibility and Patient Safety, Candello, 2024.
6. Jason Lai and David Tillman, “Curriculum to Develop Documentation Proficiency Among Medical Students in an Emergency Medicine Clerkship,” MedEdPORTAL 17 (November 2021):11194. https://doi.org/10.15766/mep_2374-8265.11194.