Dr. Marc Serota discusses best practices for avoiding common lawsuits, including those related to misdiagnoses and procedural complications.
Marc Serota, MD, Triple Board-certified Dermatologist and CEO and Founder of MD Integrations, Denver, Colorado
“Whenever a doctor is being sued, you have to get an expert to say they did or did not deviate from the standard of care,” said Marc Serota, MD, who presented “How to Avoid a Malpractice Lawsuit” at this year’s Diversity in Dermatology Conference.
“One of the things I did in the lecture is define, ‘What is the standard of care? What does that even mean? How do you stay within the standard of care?’ Well, the standard of care is, what would the average dermatologist in that patient’s locale have done with that patient? So you need a specialist in that field to say… the doctor did not actually deviate or, yes, they did deviate.”
There are two main reasons dermatologists get sued, said Dr. Serota.
“The first is misdiagnoses… And the other is complications from procedures.”
Based on his experience, dermatologists can avoid lawsuits by following a few best practices, said Dr. Serota.
Preventing Misdiagnoses
“So first of all is, recognize when you need to slow down and push pause. No one ever got sued because they were running behind.”
It’s that desire to provide an immediate answer to patients is what can get you into trouble, said Dr. Serota.
“As dermatologists, we often feel like we have to give someone an answer immediately because we’re such a visual specialty. Sometimes that can’t happen. And a lot of the times when I see lawsuits occur, it’s because people were just busy in their day, and they felt like they had to give someone an answer or they didn’t collect all the information.”
So if something deviates from recognizable patterns, don’t feel pressured to provide an immediate diagnosis, said Dr. Serota.
“…have a little red light in the back of your mind, push pause, and remember the phrase, I’m not going to be able to diagnose that for you today. Patients actually appreciate that.”
Another way to prevent misdiagnoses is to avoid bias, he said.
“Anchoring bias is when someone comes in with a previous diagnosis… and you just accept that diagnosis. You should always look at cases with fresh eyes. You should always ask for outside records if something is complicated. And you should always push pause and slow down.”
Document your differential diagnosis in your own words, especially if you are using electronic health record templates, said Dr. Serota.
“I understand everyone uses these templates to some degree for their exam findings and things like that. But when it comes to your plan and your differential, put some things in your own words.”
Don’t simply check that diagnosis button without adding that extra information, he said.
“That way people know that you thought of those things, as opposed to just treating someone the same for a year and just clicking the same atopic dermatitis button and then it turns out, they actually had scabies [or] they actually had CTCL. And now the person’s upset.”
Pigmented lesions also require careful documentation, said Dr. Serota.
“People always ask me about pigmented lesions. And that’s a common one that is of concern because people are afraid of missing melanomas.”
The best practice here is, if you photograph and describe something that could be a melanoma, also show that you’ve advised the patient of your concerns and management recommendations, he said.
“So don’t take a photo of a mole you’re watching that looks bad because someone could come back later and say, Hey, that looks like a melanoma to me and you didn’t do anything about it, and now it’s two years later and it’s that.”
In the case that a patient does not want to act on your advice, document that in their record, said Dr. Serota. For example:
“I explained to the patient that I’m concerned this could be a skin cancer. The result of waiting to diagnose it could be that the cancer spreads or worsens or even causes significant morbidity, or even mortality.”
Procedures and Documentation
According to Dr. Serota, key to avoiding procedure-related malpractice lawsuits is ensuring patients are fully aware of risks, benefits, and expected appearance of the treatment area once healed.
“You should put those things in writing because… you froze something and now they have tingling in their hand where you froze it or some complication. And they say, ‘they didn’t tell me that I can potentially get that,’ and it’s going to turn into a ‘he said, she-said,’ so make sure you document: ‘I explained to the patient the risks and benefits.’”
Contemporaneous documentation carries more legal weight than simply relying on memory, said Dr. Serota.
The Malpractice Lawsuit
“A certain percent of doctors are going to receive a malpractice lawsuit in their careers. The numbers are somewhere around 35% to 40%, depending on the specialty….”
If this happens to you, remember this: Do not talk about the lawsuit with anyone but your lawyer, said Dr. Serota.
“No one wants to receive something like that, so you get an emotional reaction, and you start to say things and do things in an emotional manner… So I recommend for the first 24 hours, don’t do anything. Just digest it. Don’t even fully read it or comprehend it. Just put it in a drawer and avoid the emotional responses that you’re going to have, where you can make a mistake.”
According to Dr. Serota, seek advice from an attorney or your malpractice carrier.
“…your reaction is always to show it to your colleagues and say, ‘Did I do anything wrong? I don’t think I did anything wrong. What do you think about this? This person’s just crazy, right?’”
Don’t, said Dr. Serota. Anything you communicate can make its way to court.
“You want to discuss it with your attorney and otherwise you should not be speaking [about it]. That’s probably the number one pearl if you’re in that unfortunate position.”
