Key takeaways:

• Thorough documentation should reflect clinicians’ clinical reasoning, including diagnoses considered and ruled out.
• Clinicians should also understand the difference between decision-making capacity and consent.

LAS VEGAS — Physicians can mitigate their legal risk by documenting their clinical reasoning and staying informed about emerging medical-legal issues, a speaker at OMED said.

Medical legal “is always a great topic for people to learn more” about, John R. Casey, DO, MA, FACOEP-D, director of medical education at OhioHealth Doctors Hospital, told Healio.

Physicians can mitigate their legal risk by documenting their clinical reasoning and staying informed about emerging medical-legal issues, a speaker at OMED said. Image: Adobe Stock

“It’s not meant to be scary. Some people think it’s a bit dry, but I think it’s interesting if you look at it with the same lens that you look at quality review,” Casey said. “If you think about it from the fact that we all do medicine, we’re always going to interact with the legal system. So, it’s important to know what’s changing in the medical legal world.”

Healio spoke with Casey about strategies that can lessen the risk for legal action, how AI factors into medical-legal issues and more.

Healio: What are the emerging and important areas of legal risk that clinicians should be aware of?

Casey: Most physicians are aware of basic legal risk as the legal landscape, much like medicine, is slow to evolve. I think the areas that they need to focus on are good differentials, considering all factors for the patient and documentation that explains their decision-making.

There’s a commonly held misconception that if you miss some kind of unicorn diagnosis out there, that you’re practicing bad medicine. That’s not what the data supports. The data really supports that it’s when something is not that rare of a diagnosis, but you didn’t consider it, or you did but you didn’t document very well. That’s what really gets people into legal trouble.

Healio: How does emerging AI factor into the legal landscape?

Casey: One of the newer areas that people have concerns about — and it’s an underdeveloped area because, again, the legal system moves very slowly — are AI scribes and recording, the use of technology for health system alerts and this technology in electronic medical records.

The thing we need to think about in medicine is AI is designed to be a tool to help patients, and they do that by helping the physician do a better job. When you use the AI that’s available to you for the right thing, making sure that the physician is ultimately the person with oversight, that really is the safest way to protect yourself. You can get a lot more done a lot safer with having AI rather than without. 

John R. Casey, DO, MA, FACOEP-D, held a talk at OMED about how physicians can mitigate legal risks.

Healio: Are there any medical-legal principles you feel need better education and implementation?

Casey: One of the biggest areas — and it’s interesting because it goes right to the root of something that we do in medicine all the time — is the difference between capacity and the ability to consent to things, and I think capacity in general is one of those ideas that seems easy to grasp, but it’s not really the same as competence, and that can really cause problems for people.

You have the right in this country to make a poor decision, as long as you’re informed about the circumstances around that and are choosing to do that. Sometimes we forget that capacity can fluctuate. Someone can have capacity in certain domains, but not in others, and I think that unless you do a lot of work on this or have had recent education on it, some of the thoughts on it since your time in medical school or training have probably changed a bit, and it’s a topic worth revisiting.

Healio: Do you have any basic tips for mitigating legal risk?

Casey: The easiest way to mitigate risk is to do good medicine and document what you do. In your medical record, make sure that it’s clear what you thought things were and weren’t, what you considered and what you didn’t. A lot of times we just leave it to assume that everyone would know that’s something we would do, and unless you either ordered a test or documented that you thought about it, it really never makes its way in, and years down the road, you often would have a hard time justifying what you did or didn’t look for, particularly because when you’re playing the game with the final result, it’s a lot easier to question rulings on the play.

For more information:

John Casey, DO, MA, FACOEP-D, can be reached at primarycare@healio.com.