Excerpted from The Biggest Legal Mistakes Physicians Make: And How to Avoid Them
Edited by Steven Babitsky, Esq. and James J. Mangraviti, Esq. (©2005 SEAK, Inc.)
Download Free 646 Page E-book: The Biggest Legal Mistakes Physicians Make and How to Avoid Them
Under certain theories of liability, physicians may be held personally liable for the conduct of others or for forces beyond their immediate control. It is important for physicians to identify these potential risks and perform a comprehensive evaluation of them. Once the risk is identified, the practitioner can take affirmative steps to ensure that appropriate risk-management protocols are in place. Physicians can further protect themselves through education and supervision of those who pose potential risk.
Mistake 1 Failing to Perform an Appropriate Investigation Before Hiring Employees
Under the law, physicians can be held responsible for the negligent hiring of an employee. If they fail to conduct an adequate investigation, check references, and confirm credentials, physicians could be held liable for any negligence that may result from this lack of training and credentials. When hiring certified or licensed paraprofessionals, it is important for physicians to confirm the existence of the credentials. In addition, they should have protocols in place to monitor any recredentialing or continuing education requirements for their paraprofessionals.
Action Step Physicians should develop an office protocol for investigating all candidates for employment positions. They should keep detailed personnel files, including continuing education requirements and compliance with those requirements.
Mistake 2 Failing to Adequately Supervise and Educate Employees
Under the theory of vicarious liability, physicians may be held responsible for the conduct of their employees in the performance of the employees’ job responsibilities. Consequently, it becomes important for physicians to be aware of each employee’s level of skill, training, and work experience. Physicians should ensure that training programs are in place if necessary. Additionally, steps should be taken to ensure that all employees are educated about any specific clinical aspects of the practice. Detailed personnel files should be kept in the event there is any question regarding an employee’s training or experience.
Action Step Physicians should provide education for their employees when necessary and be aware of the skill level and conduct of their employees.
Mistake 3 Failing to Have Good Physician-Patient Relations
Many studies have shown that the breakdown in communication between the clinician and the patient increases the likelihood of a lawsuit. It is important not only for the physician, but also for all of the staff, to have a good bedside manner. Patients who respect the physician and staff are less likely to institute litigation. Physicians should ensure that their staff conducts itself in a fashion that is professional and compassionate. It is important to evaluate personalities of potential employees to determine if they fit into a physician’s clinical practice.
Action Step Physicians should ensure that their staff has a good bedside manner.
Mistake 4 Failing to Maintain and Complete Records of Patient Contacts
From a legal perspective, the documentation of the health care being provided is as important as the rendition of the care itself. In a malpractice suit, the medical record is evidence and is often introduced to the jury and evaluated by members of the jury during deliberations. A comprehensive and chronological documentation of all care, contact, test results, and follow-up recommendations will act as the best defense in a medical malpractice case. It is important that staff members are instructed with regard to the significance of documentation. All patient contact should be documented in the medical record. Physicians should ensure that patients are thoroughly advised and that the medical record is an accurate description of every clinical interaction that occurred between the practitioner and the patient.
Action Step Physicians should ensure that all staff adequately and accurately document all clinical contact with the patient.
Mistake 5 Failing to Adequately Inform Patients of Test and Procedure Results
Often, physicians do not provide sufficient information with respect to tests and procedures and the results that are reported to them. It is important for physicians to adequately explain the significance of any and all test results that are performed. They should thoroughly explain what course of action, if any, should be taken in light of the specific result. They should also provide thorough explanations of any medications and side effects as well as what the anticipated outcome of the clinical course of treatment should be. Physicians should make clear that care and treatment are an attempt to treat conditions and symptoms, but that there is no guarantee. Patients who have an informed understanding of their diagnosis, symptoms, and course of treatment will work together with the physician and not against the interests of the physician and his or her practice.
Action Step Physicians should have protocols in place so that patients are advised of all test and procedure results and have specific instructions regarding follow-up.
Mistake 6 Failing to Conduct and Document Continuous Educational, Quality Assurance, and Risk Management Training of Staff
It is the duty of physicians to ensure that everyone working with them in their practice has appropriate training and experience. Policies and procedures to maintain an appropriate quality of care should be instituted. Physicians should appoint a person to be in charge of education and quality assurance. That person should maintain files and information regarding education and credentialing. This information should be maintained in the facility where the physicians practice.
Action Step Physicians should ensure that all staff is being educated and that measures are being taken to ensure the quality of care.
Mistake 7 Failing to Refer to Specialists or Consultants
In many instances, general practitioners must decide whether to continue to treat a patient or refer the patient to a specialist. These practitioners should be mindful of the extent of their training, experience, board certification, and other credentials. Often, the failure to timely refer a patient to a specialist for an evaluation will result in a malpractice suit. In addition, the failure to refer to an appropriate specialist may be called into question. It is important that general practitioners be aware of their limitations and refer to or consult with a specialist when necessary.
Action Step Physicians should recognize patients who may be in need of a referral and refer in a timely and appropriate fashion.
Mistake 8 Failing to Understand and Comply With State and Federal Laws
During recent years, scrutiny of the confidentiality of medical information has increased. There are both state and federal statutes governing this issue. It is important that practitioners be aware of these statutes and have protocols and procedures in place to ensure that their patients’ medical information is not being wrongfully disclosed. Many forms and educational opportunities are available to address the specific issues involved. Practitioners should take it upon themselves to ensure that they have all pertinent information with regard to the confidentiality of medical records and that all staff involved in dealing with the medical record are educated on this issue.
Action Step Physicians should educate and supervise the staff on current laws and regulations regarding medical records. They should update their protocols and procedures accordingly.
Mistake 9 Failing to Exercise Professional Skill and Judgment
Practicing sound medicine with good clinical skill and judgment will prevent malpractice. Physicians must take the time to ensure that their clinical skills are up to the applicable standard of care, and they should continuously educate and update themselves on these skills. Attending seminars, participating in professional organizations, and keeping abreast of the pertinent literature are vital to staying ahead of the game in this litigious environment.
Action Step Physicians should engage in continuous education and self-evaluation of their clinical skills.
Mistake 10 Continuing to Practice When Aware of a Disability That Impairs the Ability to Perform
Physicians who find themselves in a situation in which they are no longer able to practice due to an illness or disability must take themselves out of practice to avoid negligence. The standard of care requires that physicians be able to perform as would a reasonably prudent practitioner in the same or similar specialty. If any illness or disability affects that level of performance, then it is the physician’s responsibility to recognize that and remove himself or herself from the practice of medicine. In circumstances in which a disability arises, the risk of negligence is substantially increased. To avoid liability, the physician should take steps to remove himself or herself from the practice of medicine and arrange for a transfer of care of his or her patients to ensure that they are being provided continuous medical treatment.
Action Step Physicians should recognize when they have an illness or disability that affects their ability to practice medicine and promptly provide alternative treatments for patients.
In certain instances, physicians can protect themselves from liability by ensuring that their entire office staff and referral network are competent, well trained, and educated. The careful selection and education of staff are as critical as the care being provided by the physicians. The ability to intelligently transfer risk can prevent claims.
Anne M. Oldenburg, Esq.
Peer reviewed by:
Linda J. Hay, Esq.,
Download Free 646 Page E-book: The Biggest Legal Mistakes Physicians Make and How to Avoid Them