Successful malpractice defense lies in body of evidence

When patients or families learn that a loved one has malignant melanoma, one of the first questions is often whether the cancer could have been cured if it was diagnosed earlier.

It's a valid question - because melanoma can be mistaken for other conditions or overlooked altogether. Some medical experts say it is not unreasonable for a physician to miss about 20 percent of melanomas during a physical examination.

The second question is increasingly whether to sue the patient's dermatologist for failing to diagnose the condition. In fact, melanoma is the most common source of dermatology lawsuits. Failure-to-diagnose cases now represent one-fifth of all negligence claims and lawsuits. When a life may hang in the balance, it's easy to understand that in some cases, from the patients' perspective, a mistake was made and someone should be blamed.

Understandably, dermatologists are most open to lawsuits when dealing with high-risk melanoma patients, who are among the most challenging patients to track and present significant opportunities for missed diagnosis.

This is pretty sobering stuff given the ferocity of the disease and the potential impact of a lawsuit. Add to that the fact that some 50 percent of melanoma cases are attributable to new moles and you've got the perfect situation for missed diagnosis, costly litigation and large jury awards.

What to do?

So what can a dermatologist do to mitigate the risk of melanoma-related litigation and, if involved in a lawsuit, reduce overall liability?

The very best protection a dermatologist can have is summed up in a single word: Evidence. Having complete, high-quality evidence on high-risk melanoma patients will enable more effective, and ultimately more successful, legal representation.

In cases where there was no mistake, you are prepared to have the matter dismissed. In cases where there was an error, you are better able to settle the matter quickly and with less rancor and expense.

What constitutes quality?

What constitutes quality evidence?

While digital documentation of patients' records and medical procedures is being widely implemented in many fields of medicine, many dermatologists still have a system of tracking patients that combines memory, handwritten notes on the patient's chart and in-office photos of individual "suspicious-looking" moles. This subjective approach is no longer acceptable, either for the patient or the dermatologist.

I recently took a few minutes to speak with a dermatologist acquaintance of mine about his workload and documentation procedures.

"How many patients do you see in a day?" I asked.

"Sixty," he replied.

"How many in a week?"

"Two-forty."

"So that makes 960 patients a month, 5,760 for six months?" I pressed.

He nodded in affirmation.

"And you remember what's going on with each of these patients and have complete and thorough records you could present to a jury with confidence? And if an expert witness reviewed your records, she would draw the same conclusions and concur with your actions?" I queried.

At this point he conceded that his system might need improving.

Unfortunately for dermatologists and fortunately for plaintiff's attorneys, this antiquated form of record keeping is often the rule and not the exception.

The bottom line is that physicians cannot rely on subjective evidence in a court of law and patients deserve, and increasingly demand, documented accountability. Juries weaned on CourtTV have little sympathy for physicians and an abundance of sympathy for plaintiffs stricken with cancer. Only a well-documented, systematic, objective "body of evidence" has a chance of standing up in court or settlement deliberations.

Mitigation tips

Here are three tips for creating a body of evidence to mitigate the risk of melanoma-related malpractice litigation: