Physicians and the Law: Medicine, Business, and Malpractice with Dr. Tim Paterick

This transcript of their discussion has been edited for clarity and length.

Mike Sacopulos: Timothy Paterick is both a physician and an attorney. Dr. Paterick is a practicing cardiologist and author of Physicians and the Law: The Intersection of Medicine, Business, and Medical Malpractice. Tim Paterick, welcome to Sound Practice.

Tim, I'm interested in your book Physicians and the Law: The Intersection of Medicine, Business and Medical Malpractice. Tell me, why did you write the book and for what audience was it written?

Dr. Tim Paterick: The book really is a compilation of many years of thinking about the intersection of medicine and the law. And when I finished my cardiovascular training at the Mayo Clinic, I really decided that I needed to have a deeper understanding because I could see that medicine and the law were colliding in many different directions. I elected to go to law school at the University of Wisconsin and I really did that, not because I wanted to practice law, but that I wanted to understand the intersection of medicine and law and have a deeper understanding of why they collided and how to make it better for physicians to understand that the law's not their enemy, but ultimately their friend if they understand it. I really came away with some simple concepts like if you just follow the standard of care, you never have to fear the law.

And that sounds so simple, but if you look at many of the issues that surface at the medical-legal interface, it's because people didn't do simple, straightforward things such as, documentation is just critical when you do something, as you know as a healthcare attorney expert. But those simple things are which catch people and we're in a complicated environment now because medicine is moving fast, physicians have become generally employees across the country and in that standard, it gets confused as to who are they a fiduciary to, the patient or the system that employs them? And that conflict can be very difficult because I'll just give you a succinct example of many friends will say, "Well, I want to be a fiduciary to the patient but if I don't do what the system says, I might not have a job." And that kind of puts a halt to everything and it makes it more confusing, as you know and as I know, we're fiduciaries to the patient or we should be.

And I think that, as I've thought through these things, I've tried to make things simplified and recognize that if we just go back to basics such as a detailed history and physical and a very contemplative thought process in this fast world that gets to be difficult, to try to sort through and recognize what we're looking at with patients when they present. And then take the time in this fast-paced world, to carefully document what you're doing and why. With an explanation that anyone who picks up your note would understand. And that takes some time. I liken it to the idea of writing a brief. You really have to be thoughtful and make your words meaningful. I don't know how you felt, but when I did law school and I went into legal writing, I thought I was a good writer. I quickly learned I was not, as the first writing sample came back with more red than I knew what to do with. And it really took me some time to become a thoughtful, succinct, careful writer. And so, when I teach residents and fellows, I really tell them, this is something you really have to work on, on a daily basis. And I think if you do those things that allows you to not get in a conflict with the legal system. So that's kind of a long-winded way of saying why I got interested in the intersection of law and medicine, and why I as a practicing cardiologist who does not practice law but spends much of my time teaching residents and fellows to understand those ideas and concepts because they don't get that education anywhere else. And I didn't get that education when I was going through my training. I really just got caught up in it as I saw the complexity. I also had the advantage of being married to an attorney who practiced medical malpractice defense. She gave me some insights and understanding, and it helped me want to pursue an understanding to help myself, number one, but to also teach other people because it's complicated and yet it doesn't have to be if you understand simple concepts.

Sacopulos: I think that you're absolutely correct. Let's focus a minute on your residents and fellows because, I'm sure it's stating the obvious, no physician ever wants to be sued, yet statistically we know that for certain specialties it's just going to happen. Whether the suit is successful or not is a separate question. But the actual litigation, unfortunately, statistically is likely to happen to a number of your residents and fellows. What do you advise young physicians when it comes to the psychological fear of medical malpractice litigation?

Paterick: As you're well aware, that fear drives a lot of what goes on in medicine today where people will say, "Well, I'm going to order this test or I'm going to order that test so the lawyers won't get me," so to speak. And I really try to step back and say, the lawyers aren't going to get you as long as you're practicing very sound medicine that falls within the standard of care. And the standard of care, as you know as an expert, can be complicated sometimes. But I think in general, where I have seen in my limited experience, I don't probably have as broad experience as you, is that physicians get in trouble when they rush, when they try to do too much too fast. And that, what I call, the hedonic treadmill because we're in an environment where physicians are reimbursed based on RVUs. And RVUs are only generated by seeing more, doing more, and doing it all faster.

And what I try to tell the residents and the fellows that I work with, don't get on that hedonic treadmill. It is a mistake, and you can make a good living. I told them they're in the wrong business if they wanted to become a millionaire. I said, "You really didn't start out that way. And I understand everybody wants to make a good living, but I haven't met too many physicians that aren't making a good living. And then if you have sound practices in terms of how you use your money and from a debit credit standpoint, you're going to be fine. And you don't have to get caught up." And my metaphor always to them is the hedonic treadmill where you're going so fast you don't know where you're going, why you're going and you're not really getting anywhere. And then you've lost the whole principle of why you went into this because I think most people, I mean I'm sure there are some exceptions, but go into it because they want to make a difference. They want to make a difference in people's lives and it's a very rewarding business if you do it right.

The patient-doctor relationship is really special, and I keep emphasizing that we can't get away from that. That they have to be the number one thing that we do no matter what a system says, and I think you can do both, you may not make as much by doing what I think of as due diligence to each particular patient you see. But if you do that, you reduce the likelihood of what you're saying is statistically the likelihood of being sued at some point. Anytime there's a bad outcome, people want to find somebody that's a scapegoat, so you can get into those situations for sure.

But again, if you've done a tremendous job of documentation, because nobody's going to believe you that, oh, I remember three months ago, this is what I said to that family, it's got to be written clearly and concisely. And that gets into that whole, we need to be better, succinct, thoughtful writers in our notes. And I'm sure you've reviewed notes of physicians in the past in the work you do, you just can't be fast and sloppy if you want to stay out of trouble because you never know when something's going to surface. And you might even be a bystander but still be brought in and therefore there you are in the middle of something that you would've never expected. And the only thing, at least in my experience, that saves people is number one developing a really good physician-patient relationship that's thoughtful, trusting, meaningful, but then that you document, I spend a lot of time talking to the residents and the fellows about the importance of documentation, that it's the only thing that will save you when there's a difference of opinion as to what was said or what happened.

And I can't emphasize that enough for everybody. And I think that that's something that I spend a lot of time on myself. I look at it as every single clinical case I'm involved with, this is a little bit to the extreme because of my background, but I look at it as like, did you write a note that you want the whole world to see at any time in the future? And I've seen people and I've had some friends, you talked about the psychological impact a bit. It's daunting to go through the process of litigation, you are going to be taken apart from what were your grade school grades practically sometimes. And so, I think you want to make every effort to stay away from that and hopefully we can, through education, do two things; reduce the number of inadvertent mistakes that occur or so-called alleged negligence and reduce the number of physicians that have to go through the trauma.

I'll tell you, when I was in training and this had a big impact on me, I was a cardiology fellow at the Mayo Clinic in Rochester, Minnesota. And one of my favorite physicians that I had really become good friends within my internal medicine training there was a Dr. Tom Bunch, and he had a brother who had a lawsuit brought against him. He was devastated to the point that he ended up taking his life. And that left a huge impact on me because I thought and had a lot of stimulus as to why I decided I wanted to better understand what this intersection was, how we could make it more cooperative.

The law is a powerful entity and not just in medicine but across many, many different disciplines. And so, I think rather than be fearful of it, it's more important to learn about it, understand it, not become an expert lawyer, but to understand whatever role you're in, how you're going to interact with the discipline to try to make it, and it sounds weird to say this, but to make it your friend. Understand it enough so that you're not going to get a mistake because you just didn't realize because think of how many things, especially as medicine evolves now with all these mergers and acquisitions and all these layers of complexity that go on and all the rules, HIPAA and all this stuff. I mean, it's complicated. And who's teaching physicians about that? Nobody. Hey, maybe you have to watch a one-hour video and then good luck.

In this complicated environment we live in, that's not good enough. In a recent issue of the Journal of Medical Practice Management, I have an article about why is HIPAA important for physicians to know? Because you can really get in trouble and really think you've been innocent. So, like in all aspects of life, knowledge is power and the more you can understand things, the better how to purport yourself and act in that particular environment. And so those are some insights as to, well, why would you spend your time doing this or thinking about it? I never regretted it. A lot of people think it's very unusual that why would you go spend that time when you're not gaining anything out of it because you don't practice law? But I gained so much out of it because I understood the intersection of the two and a legal education as you know, because you underwent it, it teaches you to think differently than a medical education does. And that was really something I wasn't really thinking about when I went into it. But I learned that over time.

So I think that when you talk about the book, I try to, through what I think is clear and concise, hopefully, writing, make people understand these are the places where these intersections occur and this is some of the things you need to understand to better know how to handle your day-to-day because nobody's actually giving you a course in this, through all your training. I mean, I went through a lot of years of training, and no one ever gives you a course on medical-legal conflict or negligence or litigation. I mean, it just isn't part of the curriculum. But yet what happens after you're done training, as you said earlier, X percent of physicians are going to be faced with this and it often is their first time and they're overwhelmed and burdened and psychologically destroyed, their families can be overwhelmed. It's devastating.

Sacopulos: Definitely is a baptism by fire for some. Let's pick an issue that a number of physicians are dealing with, physician extenders, non-physician providers, physician assistants or nurse practitioners, that physicians are asked to oversee. What liability does a physician face when he or she is overseeing a physician assistant, for example?

Paterick: That's a great question. And as you know from reading the book or looking at it, there's a chapter in there. But in the end, the physician is respondent, superior or captain of the ship. And that's really complicated in the new environment. And I've had many friends call me to talk about this a little bit because a lot of times physicians are following not just one physician extender, but five or six because again of this idea of throughput, what I call churning out patients instead of taking the time to go through it. And you're putting yourself at risk if you are not looking at yourself as somebody who has to, in my mind, now this isn't not necessarily the standard of practice today, but you're not seeing that patient, you're not talking to that patient, you're not being responsible for all the actions or non-actions that are taking place.

I really think that's something you have to take very seriously. And it's a place where I think we have gaps right now because of, well, they even have rules just so you just have to be in the same building or something like that. Well, I think you really have to know your physician assistant, your nurse practitioner, but I'm old, so for me, I still have to see the patient, talk to the patient, examine the patient. Now I can probably do that more efficiently if I've already gotten information from the extender. But I don't think, in my opinion, that you are very smart to practice just on somebody else's words and thoughts who is not trained as thoroughly as a physician is. That is becoming an extremely popular model as you know, I'm fearful of it. I always tell everybody like when we're in a busy hospital service and whatever, the residents, it's long days and they're like, "Oh, you don't really have to see this one."

And I say, "Yeah, I do," even though I saw that patient yesterday and the day before because in the end, there's only one person who's going to be responsible if something doesn't go well and that's going to be me. And I think the captain of the ship concept is extremely important for every physician to understand. And when you talked about that conflict that we have, part of the reason we have all the extenders now is to try to do more in less time. But the only person, and I don't know of any institution that ever will come forward and say, "Well, it didn't go well but it was our fault because we were making the doctor." Now all of a sudden you become the doctor and you're responsible. And we didn't tell him to do that and people wash their hands.

But I think that's an area that's touchy, it's growing fast, and I think that, and this is just my opinion as a physician, you make a mistake when you do not visually interview and see patients that you are making decisions on to use another person's input which may be incomplete. And I'll give you just a quick example where this is really strong. I worked with the residents and the fellows, and we had a young person come in, he was only 38-years-old and had come in with chest pain and had elevated troponins, which suggests that there's been injury to the heart muscle. And they had him all set up for a heart cath because he had chest pain. And I said, "Stop the heart cath and let's go talk to the patient," because when I asked them, they hadn't gotten a history, which because of his age, I knew it was going to be the case.

This is an example of what's called myocarditis, where there's injury to the heart muscle because he had had a viral infection two weeks earlier with sweats, chills, and the whole clinical cascade that would go with that. Well, they were young, they didn't dig into that. I mean, I've got a lot of experience. So, I know a 38-year-old with elevated troponins is much more likely to have myocarditis. Now, from a distance, if I had just said, “Okay, send them to the cath” and then we get an untoward event at the cath, then who's responsible? Me.

And I think that I'm giving you that analogy because I think when you work with physician extenders, who I appreciate, I respect, but I think you have to look at them, in my mind, as a resident or a fellow that you're overseeing and they can take care of some of the paperwork for you, some of those things. But there's never a time in my mind, if you are going to be the physician of record, that you don't talk to the patient, examine the patient, and discuss your thought process. I wouldn't say that's the norm, but it's the norm I hang to.

Sacopulos: I'm interested, so much of physician risk mitigation strategy focuses upon clinical skills and protocol. You mentioned earlier having a good physician-patient relationship. Do you think that the mitigation strategy should be expanded to include such things as the relationship between the physician and his or her patient?

Paterick: It's absolutely the number one mitigation factor. And my experience, if you have an excellent relationship with the patient and their family and they believe you care and that you've given your best effort and that you've communicated everything as succinctly and well as you can, mistakes are forgiven. It's really amazing the mistakes you can see; I've seen a couple cases where somebody operated on the wrong foot and people did not pursue suit, which in that case you'd obviously win something, but they felt so strongly towards that position and I really believe that the most important thing you can do is develop a trusting, thoughtful doctor-patient relationship where that patient believes you're giving every ounce of your soul to their care. And that's a skill that you have to learn. You have to look people in the eyes, you have to let them know, you have to give them the time to tell their story. Another problem in our fast-paced world, but you have to give them time and you have to let them know that you're available for questions. And I always tell patients when I first see them, don't expect us to solve a complicated problem on our first meeting. It doesn't work like that. It takes time to understand and reason through what the options could be.

What I find is really interesting is I spend a lot of time at the Mayo Clinic, and I have a couple of really good friends there, and they always say they spend over a third of their time telling patients what they don't need because it's easy to become knee-jerk in how you practice, in any aspect of our lives. But in medicine that can really be a mistake. And if you'd ask me what's the number one mitigation thing you could implement as a physician, is that you develop the skills, emotional, social, intellectual skills to have a really outstanding doctor-patient relationship.

People will forgive you if they believe you truly care. And oftentimes it'll be family members who are like, "He didn't care. He was in and out so fast, he didn't talk to us." Communication skills are critical in every aspect of our lives, in any relationship we have. And as part of the doctor-patient relationship, the better you communicate, the lower the likelihood you're going to have to have that collision with the legal system.

Sacopulos: That is excellent advice to our audience. I'm sorry that we're out of time, but for more excellent advice, you should absolutely find a copy of Dr. Paterick's book, Physicians and the Law: The Intersection of Medicine, Business, and Medical Malpractice. Doctor, thank you so much for your time and great advice today.

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