Legal Considerations for the Medical Office*

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1 Legal Considerations for the Medical Office* Waiting until a malpractice suit occurs is TOO LATE to change your method of practicing to prevent or limit litigation! NOW is the time to make sure your office is in the best possible shape to prevent a lawsuit. Don t just practice defensive medicine think of it as practicing GOOD medicine by diagnosing and treating patients with an eye toward these important things: Diagnosis and treatment within the standard of care utilizing sound informed consent practices Keeping adequate medical records Maintaining an efficient and polite medical staff and employees There is no complete solution to the medical malpractice problem because there will always be the chance that a disgruntled patient may find an attorney willing to take a chance. It is the prepared physician who has maintained his practice with prudence and planning that will be, in most cases, protected from such dangers. Causes of Action Medical malpractice cases usually involve at least one, and often more, of the following legal theories, among others: Breach of Duty Failure to Follow Standard of Care Abandonment Battery Breach of Contract Lack of Informed Consent** Intentional Infliction of Emotional Distress Loss of Consortium Loss of Chance Loss of Enjoyment of Life Res Ipsa Loquitur (presumptive negligence) Spoliation of Records (changing records) Wrongful Death page 1

2 ALL elements of these legal cases can be combated with proper procedures and conditions in the medical office. Following are areas of emphasis, which, if properly treated, will go far in preventing malpractice cases. And, what s more, the requirements for office accreditation (JCAHO, etc.) incorporate EXACTLY the types of precautions that will serve to insulate physicians from lawsuits. In fact, prevention of potential medical malpractice lawsuits is one of the best reasons to seek medical office accreditation. I personally know a top-notch plaintiff s attorney who will not touch a case if two things are present in the patient record and physician s office: ***Office accreditation, and adequate informed consent. 1. Basic Office Requirements Cleanliness Patients are very cognizant of cleanliness in medical offices. Keep walls, floors, ceilings, exam tables and chairs scrupulously clean, and let patients see staff members cleaning often. Repair any damage to paint, wallpaper, or furniture immediately. Privacy All doors of rooms where patients are seen should have the ability to close completely. If a patient is preparing for an exam in which clothing revealing private areas will be removed for examination, any personnel entering should knock before doing so, and then wait for a response. Medical records (charts, etc.) should be located such that passers by in hallways, etc., cannot easily have access to the information. Lighting All areas of the office (including areas where only employees have access) must be adequately lighted. Exit signs must be clearly identified and burned out bulbs should be replaced immediately. Biohazardous materials All containers for deposit of such materials must be clearly marked, and a licensed disposal company must be used for regular removal. 2. Office Personnel Besides the treating physician, the receptionist, because he/she is the first person to make contact with a patient, is one of the most important staff members in the fight against disgruntled patients. This person s appearance, demeanor, and telephone skills are of paramount importance in keeping patients happy. Dress should be professional, and grooming should be neat & clean. At all times this person must remain polite and businesslike, while at the same time welcoming. page 2

3 Particular attention must be shown by this person in relaying messages to the physician. If a quality person is not in this position, patients will become frustrated, and worse, angry. And in the worstcase scenario, a matter of medical urgency could be mishandled. Back office personnel need to be masters of empathy. These staff members should be very skilled at recording patients comments accurately and efficiently. All medical office personnel should have Basic Life Support (BLS) certification or Advanced Cardiac Life Support (ACLS) certification. At least one simulated cardiac arrest emergency should be performed and recorded annually. 3. Medical Records Privacy of all medical records is the most important concern. No one but office staff must have access keep them locked up. Because physicians handwriting is notoriously poor, and poor recordkeeping reflects poorly on the physician, dictate progress notes for transcription. ***A clearly kept chart is the first line of defense against a potential lawsuit. When a plaintiff s attorney first examines a patient record, believe me, his heart sinks when he opens a neat, complete, & well-documented chart that includes a welldeveloped section for Informed Consent. Medical malpractice cases are extremely expensive to pursue (expert testimony, etc.), and these guys are just looking for the sloppy practitioner to go after. All positive findings and significant negative findings must be recorded. Not all negative findings need be recorded, but the lack of signs, symptoms, examination findings, and lab or X-ray studies may be considered presumptive evidence that lapses in proper medical care are present. If alterations must be made in the medical record, NEVER, EVER, obliterate original wording. A simple, straight-line strikethrough should be used, allowing the original to still be readable. This alteration must then be initialed and dated by the person making the correction. page 3

4 Should you receive a request for records (with appropriate release signed by the patient) from an attorney representing a disgruntled patient, or a letter of intent to sue, FIRST, call your malpractice carrier. Many such contracts require that you first report such requests to them. Also beware of those states who consider release of records under these conditions an invasion of privacy until the lawsuit is filed; other states do allow release at this point under the doctrine of anticipatory release. Your malpractice carrier should be able to advise you. Rely on them. NEVER, EVER, change a record because a suit is threatened or filed. Even with the best system, i.e., strict recording of any release(s) of information, slip-ups occur, and the chart might have already been copied. And now with the advent of Electronic Medical Records (EMR), it is even easier to see if changes have been made. If, in anticipation of a threatened or filed lawsuit, the physician feels he/she absolutely, positively must change the medical record, any large changes should be recorded on an additional piece of paper, signed and dated, and added to the chart. Minor changes may be made in the margins. But be careful. Courts usually hold that everything most to the DISADVANTAGE of the spoliator will be presumed against him/her. Loss or destruction of records, especially those of a critical nature, is also considered spoliation and raises the same presumption. In fact, it has been held to be evidence of consciousness of guilt. Again, contact your malpractice carrier before doing anything. If they do not immediately assign an attorney for consultation, get one yourself. 4. Handling Complications Doctor/Patient rapport is probably the single most important factor in preventing litigation. If the patient likes the physician and feels confident in his abilities, litigation is unlikely. The physician s attitude is an important aspect of preventing litigation. When facing a complication, the physician should not maintain a cavalier attitude. The patient wants to be reassured, and information is the key here, not denial. A stepby-step explanation as to the cause of the complication, the expected time for complete healing, the plan of treatment and if further surgical procedures may be necessary, is essential, along with frequent office visits and genuine concern. Candid, calm, caring treatment that includes direct contact with the physician page 4

5 and reassurance should be in plentiful supply. Shunting the majority of the patient s contact to other staff members is not only unwise; it increases patient anxiety and the potential for a lawsuit. Recommendations: o Avoid difficult or annoying patients before starting treatment o When treating complications/difficult patients, the physician MUST plan to spend more time listening to the patient and personally handling the problem. Handing off the patient to other office personnel is unwise and will be viewed as rejection/fear/avoidance by the patient. o As always, be sure to keep detailed records of everything that is said or transpires. o Never become angry with an unhappy patient. The root of most malpractice claims is anger by the patient or physician. Understanding and controlling this emotional aspect of medical problems may very well reduce the possibility of medical malpractice litigation. 5. Notification of Discontinuing of Treatment NEVER, EVER attempt to discontinue treatment of a surgical patient in the presence of a complication. This can be viewed as abandonment, and will put you on the fast track to a lawsuit. Should you have the distinct displeasure of encountering a patient there is just no pleasing, it may be necessary to discontinue treatment. These are those patients who engage in conflict with the physician and staff, and interfere with the efficient running of the medical office. If it is necessary to terminate care before the completion of treatment, the physician should send a certified, return receipt, or registered letter to the patient. This communication must be carefully worded and should give the patient sufficient time to seek the care of another physician. The reasons for discontinuing treatment should be explained in simple, non-inflammatory language. (A sample letter follows this section.) page 5

6 And now, in my opinion, the single most important component in the prevention of medical malpractice lawsuits (in conjunction with physician/patient rapport): ***INFORMED CONSENT*** Legally, informed consent must provide the explanation to the patient of the nature and purpose of any proposed operation or treatment, any viable alternatives, and the material risks and benefits of both. All questions asked by the patient must be answered. Just so you know what you re up against, in any malpractice lawsuit, the plaintiff (patient) must show that: the risk or complication, which was NOT explained to him, did indeed occur, AND if he had been informed of that particular risk, he would NOT have consented to the surgery. Think you ve got this covered? Think again. Depending upon in which state you practice, different burdens of proof apply, i.e., a reasonably prudent physician an objective standard that allows the physician to testify as to what is a material risk; a reasonably prudent patient a subjective standard that allows the jury decide what a reasonably prudent patient would consider a material risk; or a plaintiff patient that places the burden on the plaintiff to decide what is a material risk to him. Are your eyes glazing over yet? Not to worry. Just remember: 1. A patient s signature or initials on a list of risks and complications will NOT prevent a claim of insufficient informed consent. THEREFORE, 2. The physician should explain all material risks and viable alternatives and their risks and complications and answer all the patient s questions. In the alternative, if all this information is explained by audiovisual methods, or by other healthcare personnel, THE PHYSICIAN HAS THE RESONSIBILITY TO MEET WITH THE PATIENT TO ANSWER ALL QUESTIONS AND VERIFY THE PATIENT S UNDERSTANDING OF THE SURGERY AND RISKS. page 6

7 3. Now here s the Big Pay Off: the medical record should contain the following, verbatim: The surgical procedure was explained to the patient and risks and complications were discussed as well as viable alternatives and their risks and complications. All questions were answered. In addition, any witness to the patient s signature or initials (if your staff initiates the informed consent) concerning information for informed consent purposes should have the following statement above the witness signature: I requested that the patient read the complete form. I personally observed the patient read the form. The patient stated to me that all the material was read, and after all questions were answered, understood the complete form before signing. In fact, I recommend that you use both, first the one directly above, followed by the preceding paragraph, after the physician meets with the patient. If you do not have these two statements as a regular part of your informed consent program, implement them immediately. The medical record is the most important means of preventing or limiting medical malpractice claims and is the physician s best defense. And finally, please, please follow through with the main reason you are here today getting your office accredited. The act of conforming to the accrediting process requirements will allow your office to overcome the deficiencies that will be discovered, and provide opportunities to correct them. There are many things that can be learned from this process that will protect your office from legal consequences. page 7

8 Sample Letter for Notification of Discontinuing Treatment Date Dear, It is with sincere regret that I will have to terminate any further medical care. There is an incompatibility between us that cannot be resolved and I feel it is in our mutual best interests for you to seek medical attention from another physician. I will be available to render emergency care, if you so need, for the next seven (7) days from the date you receive and sign for this letter. I would be most happy to send a copy of all your records to any physician you may choose. Sincerely, Dr. page 8

9 DISCLAIMER* This section is meant in no way to replace seeking the advice of a licensed attorney in the state in which you practice. In no way is it meant to constitute legal advice, and provides no assurances whatsoever that lawsuits will be avoided. page 9