Malpractice Risk in Podiatry: How Practice Setting Impacts Liability and Documentation

In this episode, Dr. David Schweibish discusses how risk exposures differ across private practice, hospital-employed, and outpatient settings, and shares practical strategies for reducing liability. 

Key Takeaways

1.    Practice setting shapes risk, but documentation drives outcomes. While private practices, hospitals, and ASC environments each present unique challenges, malpractice exposure is most often tied to clinical decision-making, communication, informed consent, and the quality of documentation rather than the setting itself. 
2.    Private practices may face unique operational vulnerabilities. Smaller and independent practices often have fewer built-in risk management resources, making consistent protocols for documentation, staff training, informed consent, equipment maintenance, and patient follow-up especially important. 
3.    Robust documentation is a clinician’s strongest defense. Thoroughly recording assessments, clinical rationale, informed consent discussions, patient communications, postoperative instructions, and instances of noncompliance can strengthen continuity of care and provide critical legal protection if a malpractice claim arises. 

Please note: This content is a direct transcript, capturing the authentic conversation without edits. Some language may reflect the flow of live discussion rather than polished text. 

Transcript

Jennifer Spector, DPM: Malpractice risk isn't one size fits all and in podiatry, your practice setting can significantly shape your exposure. In this episode of Podiatry Today Podcast, we will explore how risk can differ between private practice, hospital employed roles, and outpatient or ASC environments. I'm Dr. Jennifer Spector, the Associate Editorial Director for Podiatry Today. And for this chat, I am pleased to welcome Dr. David Schweibish. He practices in Central Florida and serves as a current trustee of the American Podiatric Medical Association and is the immediate past president of the Florida Podiatric Medical Association. Of note, this episode today is presented in partnership with the APMA. Welcome, Dr. Schweibish.

David Schweibish, DPM: Thank you so much, Jennifer. I appreciate it and very glad to be here.

Jennifer Spector, DPM: Well, let's get into this topic because I think this is something that really matters to a lot of folks and there's a lot of differentiation across different practice types and I'm sure other things like geographic regions and that as well. From your experience, how does malpractice risk differ between sites of care like private practice or those that might be hospital employed?

David Schweibish, DPM: Well, as a private practitioner myself, and I've been in private practice since I got out of residency, I'm primarily very intimately familiar with that particular environment, but in the work that I've done on the medical advisory committee for PICA and for several other organizations, I've gained a lot of insight into a lot of the factors that affect hospital employed physicians, multi-specialty group employed physicians, those who are even primarily based out of outpatient or ASC type settings and even those in academia or the military. And what I can tell you is that the malpractice risk that we as pediatric physicians face is really driven a lot more by what we do in that setting pertaining to surgical management and performance and things like documentation than it is strictly by the setting. Obviously the environment does shape the exposure to the type of work that we do in many different ways, but the fact of the matter is that really the types of patients we care for and the type of work that we do is probably more indicative of the sort of risks that we're going to face.
 
For example, factors like the technical performance of a case or factors that are more pertaining to the patient like non-compliance, if there's communication breakdowns, perhaps inadequate assessment, or of course, lack of documentation, those are things that all very much affect the way that a particular physician could be held to account in the case of a malpractice claim. Now, in private practice or in independent kinds of settings, you as the owner or the primary care physician carry the full weight. I mean, you have that personal responsibility for your decision making process. You also carry liability for your staff very intimately and of course responsibility for office policies, the equipment that you use and have to maintain as well as all the follow-up care. So in those instances, and in being a private practice physician, I can speak to this, there's very much often less built-in infrastructure for risk protocol.
 
There can be gaps in consent and documentation or even the way that we respond to emergency. So those types of things might hit a little bit harder versus an employed physician in a hospital setting or a large group setting where there's oftentimes very deep resources like a standardized protocol system or risk management departments or risk management specialists floating around peer review systems and different types of things like that that can help to protect you in the event of an issue. I think those are factors, again, that are very much environmental, but at the end of the day, it really comes down to more what we're doing in those settings that probably dictates more of the type of risk exposure that you actually face.

Jennifer Spector, DPM: That's so interesting. And you mentioned a little bit about private practices or independent practices and where some of those gaps may be in risk management. Are there any other unique gaps that you see that are specific to a given type of practice model?

David Schweibish, DPM: Well, I believe that the most frequent gaps that we see within smaller or independent practices or even smaller group practices can oftentimes just boil down to systems and protocols rather than a skillset. The biggest issues that come to mind, and again, I hate to beat this to death, but it needs to be done is documentation. Very often if you're in a very small setting, there could be more incomplete history taking, there could be missing rationale for particular decision making. There could be a little bit less ideal tracking of patient non-compliance or refusals of care, refusals of referrals. There could be a little bit less adequate informed consent. And these are things that we very often see in claims that are coming through the malpractice environment that are making their way into the legal system. And it's not to say that doctors in private practice are by any means less capable of doing these things or accomplishing them effectively, but very often the resources are not there and perhaps there's even a little bit more of a financial crunch because the pressures on private practice doctors are obviously immense and are growing.

And so the pressure is there to see more patients and less time versus in a large employed setting where that crunch may not be quite as felt. I think also in private practice, there could be a big difference between policies and training. I like to think that as a private practice physician with a three office practice, I have done a good job with my founding partner to establish good policies and trainings, but very often in private practices, I see that there are less formal protocols in place for things like consent taking or even how we sterilize instrumentation, how we maintain our instrument, our equipment or things along those lines, how staff are supervised on their performance and how we choose to actually correct certain actions that staff might do that is contrary to ideal methods of care. So all those types of things are very much intimate to a small private practice environment, but in a large practice environment where they oftentimes might excel are things like follow up and communication.
 
Large institutions oftentimes have, they kind of beat it to death. They text you, they email you, they call you two times, you get automated messages, you get emails, you get a newsletter, you get a postcard and small private practices very often don't have the resources to put out that kind of communication with patients. And so certain times things will slip through the cracks that way. I think it also needs to be said that there's also differences in the actual risk of the patient population that you're seeing and that can also be a factor, whereas in a hospital environment you might be pressed for time and you may only obtain like a verbal consent to move forward with a semi or a fully emergent procedure. In the outpatient environment in a clinic setting, oftentimes we have more time in place to obtain proper informed consent and document things more effectively.
 
So those types of things weigh heavily again in terms of the exposure that you face in each environment.

Jennifer Spector, DPM: No, for sure. And for clinicians that work under the umbrella of a larger organization, how can they effectively align with those institutional policies that are likely in place while still protecting their individual liability?

David Schweibish, DPM: Yeah, needless to say, that can be quite tough. I mean, aligning with institutional policies is usually protective. It's usually a protective mechanism. It usually demonstrates that you meet things like standard of care and that at the end of the day, you're operating within the appropriate guidelines, but blindly adhering to institutional policies is not always best. You still at the end of the day have your own medical license, your own expertise and training, and have to rely upon your own clinical judgment. I think what's most critical for physicians to understand regardless of their setting is that you have to know your binders, if you will. You have to know what your contract is and understand what the limitations are to what you can do, what does your malpractice coverage entitle you to? What are the indemnification clauses that you're bound to? Are there any other kind of outside acts exclusions that you have to note?
 
All these types of things that employed physicians very oftentimes face are not always the case in a private practice environment. So I think knowing what you're bound by initially is most critical and then beyond that you have to do things like, again, let's go back to documentation. You have to be very diligent about the way that you thoughtfully document things. So for example, if a particular institutional policy doesn't, if it doesn't seem to fit a particular patient or scenario perfectly, let's say for example, you have a patient with unique anatomy or some kind of comorbidity, you have to note your rationale very clearly and say, "Well, institutional protocol X was followed except for Y because of Z factor." There was some kind of an alternative approach or treatment methodology that was discussed with the patient. And in that case, then it shows that there's a very rational reasoned decision making in place so that if this particular instance were to end up in a legal environment, you can at least substantiate what your decision making process was and that it wasn't just blind or bound by some particular policy.
 
Additionally, I think at the end of the day, you have to engage proactively the best you can. We're all very pressed for time and I know that doing some work outside of the exam room is not always everyone's cup of tea, but I always encourage, especially younger doctors who are coming out of residency or fellowship, try to join the risk committees or quality control committees in your hospitals or in your surgery centers in an effort to, yes, participate in the process, but also learn about the pain points and learn about the things that are actually on the radar of large institutions that you as a care provider may not be aware of. And what it does is it opens your eyes. It allows you to flag systemic issues early. You're part of the incident reporting process perhaps. You're very aware of things that perhaps might be affecting other departments more than yours and how you can play together in order to improve the overall quality of care for your mutual patients.
 
And it comes down a lot of times to communication. We in institutional environments very often do not communicate across lines or across borders very well. And so if we start to do that more, very often we see that the quality of care, the incident reporting, all those types of things, those metrics improve in environments where those are taken to heart. So communication, engaging, and I think documentation are really at the heart of that.

Jennifer Spector, DPM: Well, and you just took the words out of my mouth because what I was just about to say is that it really seems like the common thread through all of these scenarios is documentation. And so although I'm sure we could do an entire episode on just documentation alone, what do you think are some of the most critical elements that folks need to get right when we're talking about the risk mitigation here?

David Schweibish, DPM: Listen, documentation is your best friend. I've had exposure to the claims review process of cases that unfortunately get into the malpractice environment and come before our malpractice carriers and how they're being handled in the legal world and it is your best friend and it's sometimes your only defense unless of course you have a lot of witnesses or video footage or whatever to support what the claim or something to the contrary and this applies in every single setting. I don't care whether you're in a one doctor, one office practice with no employees or you're in a large institution academic with 15 residents of every class year. In the claims that we see lack of documentation, it contributes to patient harm perceptions and it really weakens our position even when the care was sound very often and it's kind of the thread of things that ties everything together, the continuity of care, communication not only with the patient or perhaps their family members, but even with other providers, not just in the practice but outside of the practice, reimbursement justification, legal defense, all of those elements come together when the documentation is sound and the critical elements that really have to be hit every single time are things like, first of all, yes, a detailed patient assessment and the rationale for the decision making.
 
Was a full H&P performed? Is there a clear differential diagnosis? Do we know why a particular procedure or approach is being chosen? And then of course, how we are going to document the informed consent component of it, documenting the conversation. Did we of course discuss risks and benefits and alternatives which we're all trained to do, but was there conversation perhaps with family members if there could perhaps be a communication barrier, a language barrier and understanding barrier, those are really critical for high risk patients or any types of surgical intervention that's necessary. And at the same time, even things like the postoperative care and communication. Are we providing any type of guidance to a patient on the telephone or via text message? Are we giving them the appropriate instructions for, let's say, discharge from the surgery center or from the hospital? Are we ensuring that they understand very clearly what their follow-up timeline is going to be like?
 
Are we very clearly documenting non-compliance or refusals of coordinated care with other providers? All of this has to be there because unfortunately, if it's not, in the eyes of the law, it did not happen. And unless you have great eyewitnesses or videographic evidence to the contrary, the legal system is not going to support what you're claiming at the time of testimony to the extent where it's going to carry a lot of weight. So in private practice, your notes, they stand alone. I mean, in a hospital or a large academic setting, they integrate with other providers. There's multiple viewpoints and multiple perspectives. So if you document, for example, no evidence whatsoever of non-compliance in your note, but 13 other doctors talk about non-compliance, then yeah, maybe you've got a little bit more of a leg to stand on in the event of a malpractice claim that, yeah, maybe I didn't document it in my note, but all the other doctors did.
 
But in private practice, if you have no other care providers involved and you are the sole provider, sole surgeon, sole practitioner involved in a claim, it's your notes against the world. And unfortunately, we see way too many claims where the documentation is not robust and it's not sufficient and the doctor may have done everything right, but the documentation is not there to defend what the claim actually is and that case ultimately fails in favor of the plaintiff and it's a very unfortunate circumstance sometimes purely based on the poor documentation.

Jennifer Spector, DPM: Well, this is definitely very important food for thought and thank you so much for sharing your ideas and experience with the audience today.

David Schweibish, DPM: Happy to do it and happy to come back anytime we need further conversation.

Jennifer Spector, DPM: Well, we will take you up on that because we're going to have you back for some more episodes, but thank you to the audience as well for joining us for this episode and be sure to subscribe for more expert insights from leaders in the field. If you found this discussion valuable, share it with a colleague and stay tuned for more conversations designed to support today's podiatrist in every practice setting.

Presented in partnership with the American Podiatric Medical Association.