Donna Keil, BSN, RN
KAMMCO Medical Records Manager & Medical Liability Analyst

Why do we blame others? It’s no secret many of us take credit when things go well but blame circumstances or others when things go awry. It’s natural and proper to look for causes of problems especially when the problem negatively impacts a patient. However, criticizing or “finger pointing” can have a profoundly negative impact on relationships and careers. In the healthcare setting blaming others may result in legal consequences for not only the person being blamed but the person doing the blaming. When patients receive conflicting messages from their healthcare providers it can erode their confidence in the profession and fuel complaints and litigation. Studies have shown that over half of plaintiffs deposed in medical malpractice cases indicate that another healthcare professional has suggested malpractice (Beckman, Markakis, Suchman, & Frankel, 1994).

Tips to avoid falling into the Blame Game trap include the following steps:

• Gather all the facts and directly communicate with the person of concern. If communication with the previous provider is not possible, consultation with another colleague may be helpful.
• Cultivate self-awareness of internal biases and feelings of defensiveness.
• Consciously choose to avoid negative verbal and nonverbal communication with patients.
• Use this useful acronym to take a moment before we speak or document:

If a patient presses you to comment on or criticize the performance of another provider remember the best strategy in this situation is to direct the patient back to the original provider(s) to clarify matters. In the alternative, if the primary care provider is the one actively treating the patient, it is appropriate to offer to speak to the provider of concern if it will be helpful to all involved. This leads me to a case example in which a patient applied pressure on a subsequent treating physician in an effort to pin blame on a previous treating physician.

CASE EXAMPLE
In a recent case defended by KAMMCO, an orthopedic surgeon [Dr. O] performed an arthroscopic procedure on a patient [Mr. P] with hip pain. The patient had a good outcome postoperatively until approximately 9 months later when he reinjured his hip. He presented to another orthopedic surgeon who specialized in revision surgeries. The patient pressured the physician for an explanation of what “went wrong” and why he continued to have hip pain. Also, unbeknownst to the subsequent treating physician, the patient surreptitiously recorded their conversations in the exam room. What follows is an almost word for word transcription of the consulting physician’s progress note: “He [the patient] again asked me as to whether his previous surgery was done incorrectly. I simply stated that in my opinion, and based on contemporary peer-reviewed literature, the leading cause for reinjury is remaining bony impingement. A more extensive removal of bony growth may have reduced his risk of requiring a revision surgery.” While this provider carefully chose his words and did not directly blame the initial orthopedic surgeon, it prompted the patient to file a lawsuit against Dr. O.

The subsequent treating physician was subpoenaed to testify as a “non-retained” expert. Below are excerpts from the deposition (Questions by defense attorney for Dr. O to subsequent treater:):

Q. You had stated earlier that Mr. P. asked you if Dr. O. had done something wrong or made a mistake or was negligent in some way.
A. Yes.
 
Q. And you told him that you did not think so?
A. Correct.
 
Q. Why do you think that?
A. As we spoke just minute ago, that the most common reason well documented within our literature for return to the operating room for a revision of surgery is a persistent impingement.  And it’s not because every one of those was done negligently, it just speaks to the difficulty we have in identifying and appropriately eradicating the entirety of the impingement in many cases.
 
Q. You made a reference in your post-op visit with him…, in your note that says he again inquired today as to whether his previous surgery was done incorrectly. I’m going stop right there. Do you know how many times he inquired about that?
A. I don’t know the specific answer, but nearly every clinic visit.
 
Q. All right. It goes on to say, I simply stated that in my opinion and based on contemporary peer-reviewed literature the leading cause for labral re-tear is remaining bony impingement. More extensive femoroplasty may have reduced his risk of requiring a revision surgery.
A: Another unusual thing about that clinic visit that day is that he had actually activated his iPhone recorder without permission while we were interacting. So he probably has a recording of that clinical interaction somewhere.
 
Q. Did you notice him trying to record your conversations before?
A. It happened twice.

This case went to trial and was successfully defended. The jury returned with a unanimous verdict exonerating Dr. O.

TAKE AWAY
In conclusion, blaming or criticizing others in the medical record is unproductive. When a patient asks about prior care direct the patient back to the original provider(s) to clarify matters. Remind the patient that you were not there and may not have a complete understanding of all the circumstances. If you have concerns or questions it is appropriate to offer to have a discussion with the other provider. Avoid commenting to the patient or documenting personal opinions in the medical records. Once negative comments are in the records, it can be used in litigation as evidence and the author may be dragged into the case and used as a quasi-expert to criticize the original provider.

REFERENCES

Beckman, H. B., Markakis, K. M., Suchman, A. L., & Frankel, R. M. (1994, June). The Doctor-Patient Relationship and Malpractice. Archives of Internal Medicine, 154, 1365-1370.