Risk Management

Collegial Criticism and the Courtroom

By Amy B. Angert, Esq.

Argus, Nov-Dec., 1994

Physicians and defense attorneys have no control over certain factors in a medical malpractice lawsuit, such as how a case proceeds and its overall strengths and weaknesses. Many crucial facts of a case are established before the first legal document is ever filed.

One area physicians can control, yet often unwittingly do not, is collegial criticism. The way a health care professional comments on a colleague’s actions can severely impact the course of a case. Collegial criticism involves comments or communication by one health care provider about another professional’s care made to the patient, to other health care professionals, or placed in the medical chart, as well as communication made at depositions or trials regarding a colleague’s course of action. These comments may even trigger a lawsuit.

Before giving sworn testimony, defendant physicians, expert witnesses and fact witnesses often have the chance to confer with defense counsel about sensitive issues and how to communicate these issues. However, long before an attorney is involved in a case, a physician may be in a position to render commentary about a colleague. This is the time to practice defensive medicine and to be sensitive about how your statements may sound later, if taken out of context.

In today’s practice environment, it is not unusual for one doctor or health care provider to render treatment in conjunction with or subsequent to another provider. Patients often will ask about the care rendered by a prior physician. The response can dramatically determine whether or not they file a lawsuit.

Inadvertent or deliberate critical comments by one health care provider concerning another are dangerous. These encourage claims by reinforcing in the plaintiff’s or the plaintiff attorney’s mind that someone did something wrong, or that this case will put defendants at odds with one another and almost assuredly will guarantee a hefty settlement or judgment at trial.

Fortunately, there are 10 simple commandments that should govern an ophthalmologist in this area. By employing these tenets religiously in your medical practice, you can eliminate most, if not all, problems associated with collegial criticism.

Thou Shalt Respect Thy Colleague

First and foremost, as a professional, it is your job to instill patient confidence in your colleagues and your profession. You need to be positive, both about yourself and the community in which you practice. It is important to refrain from editorializing about another’s care.

Thou Shalt Not Speak For Another Physician

This is probably the single most important commandment. Unless you were there as a practicing ophthalmologist to observe the care rendered by your colleague, it is inappropriate for you to speculate on another physician’s thought processes. You should encourage a patient who has a question regarding a previous or subsequent provider to talk with that doctor directly. At the very least, you need to get all the facts. Oftentimes, you are hearing a one-sided story without the benefit of the big picture.

Thou Shalt Educate Thy Office Staff

These commandments apply to the staff as well as to the ophthalmologist. You should instruct office staff on how to handle patient complaints and train them not to comment on any other provider’s care. Often, in an effort to comfort or empathize with a patient, staff will comment on the number of times they see another doctor’s mistakes, or they intimate that their doctor can rectify what the other physician has done wrong. Encourage your staff to think before they speak and to consider how their comments may be interpreted out of context or worse, in front of a jury.

Thou Shalt Record Events Factually, Only

Collegial criticism encompasses a multitude of areas, including the patient chart. This commandment mandates that the medical record contain relevant medical information only and not opinion testimony or personal comments. Personal comments or criticisms about the patient, other doctors or the hospital do not belong in the medical chart. While you may have a beef with the patient or with another physician, those issues are more appropriately handled outside the medical record. The record should reflect only the care rendered and issues pertinent to that care. Take time to record the rationale for your intervention, especially if it deviates from the usual course of treatment. This can help ward off criticism of your care by another health care provider or, at the very least, indicate the circumstances that require this treatment modality.

Thou Shalt Communicate With The Other Doctor

This is especially important when you are asked to give a second opinion. Make sure you have all the facts before you render commentary regarding your colleague’s care. If possible, confer with the other provider to find out the rationale and considerations for the care rendered. When giving advice to patients, keep your advice factual and avoid commenting on another’s care.

Thou Shalt Not Covet Others’ Patients

This commandment speaks for itself. Criticizing a colleague to steer patients your way will eventually backfire. It becomes a double-edged sword with repercussions. You will lose respect among your colleagues in the ophthalmic community-and you may open yourself up for a defamation case or worse.

Thou Shalt Recognize That Good Doctors Can Disagree

Medicine is an art as much as a science. There is a respectable minority recognized in medicine, and what works in one ophthalmologist’s practice may not work as well in another’s. Criticizing your colleague’s judgment may imply a warranty or a guarantee that you cannot live up to. In other words, your criticisms may imply that you can do it better or that your care will render a different outcome. Beware.

Thou Shalt Recognize Thine Own Mistakes

Before commenting on a colleague’s actions, remember you may not have all the facts. You could end up eating your words and defending a suit against yourself later. At first blush, you may disagree with a particular physician’s course of action. However, after obtaining the necessary information, tests and history, you may come full circle and agree with your colleague’s course of treatment or action. It is extremely difficult to retract your comments once critical words have left your lips. If your treatment does not provide the results expected by the patient, you may be in worse shape than your colleague.

Thou Shalt Keep The Other Doctors Informed

Whether you have been asked to take on a new patient who is leaving a previous doctor’s care or to offer a second opinion, try to get the patient to agree to allow you to speak with the other health care provider. This not only fosters good community relations and keeps the line of communication open, it also provides you with a source of information and knowledge which may shed light on your care of the patient. This may not always be possible, but you should make every attempt to be sensitive to your colleague’s situation as well as to the patient’s wishes.

Thou Shalt Not Make Unnecessary Enemies

What goes around comes around. During a recent deposition, an ophthalmologist, against his attorney’s advice, vigorously criticized the HMO he had recently left. Although he was only being deposed as a fact witness (treating physician) at the time, the case took a twist and the doctor was added to the lawsuit-not by the plaintiff, but by the HMO.