When a serious adverse event occurs, sincere sympathy and compassion expressed to the patient and/or family is often the most important response to help diffuse a potentially volatile situation. Rather than taking a defensive stance against accusations of substandard care, the health care team should refrain from castigation or infighting and immediately begin the following positive measures:
Determine who from the health care team will discuss the event, with whom (the patient and/or responsible family member), and when. Achieve consensus among team members as to the factual details and sequence of what occurred and what needs to be done in response. Discuss how the details of the event, the outcome, and the treatment plan will be explained. Maintain contact with each other and the patient/family for questions. Repeated requests for an explanation of the event is a common reaction of angry or anxious patients and family members. Organize a family meeting if several relatives are involved in the patient’s care or if treatment decisions are complicated. Contact the institutional risk manager and complete any institutional reporting requirements (potential claim, medical devicefailure, etc.) if indicated. Empathize with the patient and family; offer emotional support. If appropriate, apologize for the patient’s distress without admitting liability. Attempt to reconcile opposing perceptions of what has occurred. Accept responsibility for follow up of serious complaints, but do not accept or assign blame, or criticize the care or response of other providers.
Assign the most involved and knowledgeable staff member(s) to record factual statements of the event in the patient’s record and any follow-up needed or done as a result of the incident. Avoid writing in the record any information unrelated to the care of the patient (e.g., “incident report filed,” “legal office notified”)
Do not ignore it.
Some response is necessary by the date specified. A patient’s record can be released if you have written authorization from that patient. The laws governing hospitals provide some guidance for medical group practices and individual providers in the office setting. For example, under Massachusetts law, a hospital or clinic served with a subpoena for medical records may release those records if:
The subpoena is for the records of a party named in the proceeding, as shown by the case caption on the subpoena, and
The records do not contain otherwise privileged information.
Both federal and state restrictions may come into play if the record contains “sensitive information” such as that concerning sexually transmitted disease; drug or alcohol abuse; and communication between the patient and psychotherapists, psychologists, and social workers. This list is not exhaustive and, in general, protection should be provided to any sensitive information that may cause a patient embarrassment or serious loss, such as a job or child custody. If the patient authorizes the release of the sensitive information, comply with the subpoena. Without such authorization, redact (take out) the protected information prior to releasing the record, and object to release of omitted portions, citing the legal basis for withholding the information. If you do not have the patient’s authorization, and conditions 1 and 2 (above) are not met, then object to its release to the party issuing the subpoena. That party then has the option of seeking a court order to obtain the records. When in doubt, call your risk manager or legal counsel for advice.
Yes, in some cases.
The majority of patients who experience an adverse event or an unexpectedly bad outcome do not sue the institution or their physicians, or even lodge a complaint. In those cases where a patient or family member does express anger, dissatisfaction with care, or even their intent to seek legal advice, questions about the bill often arise.
One reasonable approach to resolving patient dissatisfaction on a case-by-case basis is to consider “free servicing” or “writing off” all or a portion of the patient’s bill. However, no one guarantees that this practice prevents or avoids future claims. Supporters of this approach say it promotes good will and improves customer satisfaction, and may thereby avert a claim. Others believe that patients who are inclined to sue will do so regardless of this assistance. In court, adjustments to a patient’s bill are not considered an admission of liability. Free servicing is not recommended if doing so is unlikely to satisfy the patient. The decision to not charge or to reimburse a patient when something goes wrong is based on a multitude of factors that change with every case.
Is the adverse event or poor outcome due to an error?
Is a provider at fault?
Should the event have been prevented?
What is the magnitude of the injury and amount of billings involved?
Is this a one-time write off, or an open-ended clinical situation?
In the opinion of the providers involved, the risk manager, and administrator, will the free care resolve the patient’s complaint, anger, and frustration with his or her care?
A corollary to “free servicing” is the practice of providing reimbursement for lost personal articles, such as dentures and glasses, stolen or lost valuables, and repair of dental injury occurring during intubation.
Peer review documentation should be limited to objective statements of the facts, such as complication rates, patient complaints, and clinical facts related to the case under review. Peer review materials must support any disciplinary action (or inaction) by the peer review committee, should the committee’s decisions be challenged. The identity of an individual involved in a case under review should be revealed only to those committee members actively involved in the clinical assessment of the care provided.
Materials that include information about a case to be reviewed by the peer review committee should have the physician and patient identifiers removed. Peer review minutes should:
Employ case numbers instead of using physician names,
Be distributed only to committee members during meetings, and
Be collected and (copies) destroyed when the meeting ends.
If you have concerns about the objectivity of physician reviewers or difficulty in assessing a physicians performance, consider obtaining an outside consultant for the review.
NO.
In Florida, any statements, writings, or benevolent gestures relating to the suffering of patients involved in an unexpected outcome are inadmissible as evidence of liability. Even so, some types of apologies are better than others. An apology that includes such words as “I am so sorry that my treatment caused you harm” is inappropriate.
A sincere expression of regret following a poor outcome or upsetting experience, such as “I am sorry this happened” coupled with a discussion about future treatment options can demonstrate an empathic and caring attitude. Apologies can help to mitigate any anger the patient may feel, and communicate that you will work with the patient to improve the outcome.
No.
Do not respond either orally or in writing to a lawyer representing a prior patient in a claim or potential claim. Any contact by the plaintiff and/or attorney regarding the case should be immediately referred to the institutional risk manager, the insurance company claim representative, or defense counsel. However, you must forward a copy of the patient’s medical record when presented with proper authorization.
If the person filing the claim is still under your care, referring that patient to another physician may be the most comfortable solution for both parties. However, a physician who had a good patient relationship prior to the claim may actually benefit by maintaining that relationship. Under those circumstances, however, discussion of the unresolved claim should be avoided.
Directly, or through a patient representative, acknowledge the complaint and let the writer know you will treat it as an opportunity to uncover and solve the problem. Not every complainant will be mollified by a pleasant response, but prompt and thorough attention to a mild complaint can go far toward avoiding an escalation of emotions. If ignored, even minor complaints can become the foundation for a lawsuit. Call PCRRG for assistance. Investigate the situation fully, read the records, and speak with other providers involved. Communicate findings in a sympathetic but tactful way. If appropriate, apologize for how the patent feels, without admitting liability. Address misperceptions and inaccuracies expressed in the letter by summarizing the events as you know them. Be careful to maintain confidentiality when the response is communicated to someone other than the patient. Determine if anything should be done re: the patient’s bill. Follow phone calls with a written response for the record. Provide a copy of any pertinent correspondence to your institution’s patient complaints committee or department.
Under its regulations, the Department of Health must conduct a preliminary investigation of anonymous and identified complaints, to allow the Committee to determine whether the complaint appears frivolous, or to proceed with further investigation. A complaint notification from the DOH must be responded to within the time period stated. Most professional liability insurance policies do not specifically cover legal representation of their insureds before administrative agencies, PCRRG does cover it. However, in some circumstances a complaint to the DOH may coexist with a malpractice allegation. PCRRG should contact their risk management representative regarding the filing of a potential claim in this type of matter so that appropriate guidance can be provided. Upon notification, PCRRG reviews each situation on a case-by-case basis to determine whether a PCRRG defense attorney should be assigned.
If a person filing the claim is still under your care, referring that patient to another physician may be the most comfortable solution for both parties. However, a physician who had a good patient relationship prior to the claim may actually benefit by maintaining that relationship. Under those circumstances, however, discussion of the unresolved claim should be avoided.
Do not respond either orally or in writing to a lawyer representing a prior patient in a claim or potential claim. Any contact by the plaintiff and/or attorney regarding the case should be immediately referred to the risk manager, the insurance company claim representative, or defense counsel. However, you must forward a copy of the patient’s medical record when presented with proper authorization.
If the person filing the claim is still under your care, referring that patient to another physician may be the most comfortable solution for both parties. However, a physician who had a good patient relationship prior to the claim may actually benefit by maintaining that relationship. Under those circumstances, however, discussion of the unresolved claim should be avoided
Conversations with your spouse, personal physician, psychotherapist, clergyman, attorney, risk manager, and liability insurance company representative are protected. Discussions within the official peer review process are also exempted from discovery by the plaintiff. Conversations about the case with colleagues outside the peer review process are discoverable by the plaintiff; those colleagues could be subject to deposition and could later be called to testify based on those conversations.
The statute of limitations in Florida is generally two years from the date the individual becomes aware (or should have become aware) of the alleged act of malpractice. The statute has been modified so that there are exceptions. For retained foreign objects, the two year time limit starts to run when the object is detected.
Yes.
A deposition is a formal process for both parties to collect pertinent information about the event(s) giving rise to a lawsuit (or criminal proceeding). During a deposition, the lawyer for one side orally questions a witness on the opposing side. Even though you may not be a party to the lawsuit at the time your deposition is requested, you may be added as a defendant after your deposition. In addition to the defendants named in a malpractice lawsuit, others called to deposition can be fact witnesses, such as subsequent treating clinicians or experts. Your testimony also has the potential to alter the course of the case as a whole. Some plaintiffs attorneys delay naming certain parties as defendants in the hope that they will voluntarily consent to a deposition. Health care providers who testify at a deposition must consider their potential involvement as defendants.
If you are an insured who has been notified to appear for deposition, contact your insurer immediately. If you have offered to be an expert on behalf of a insured defendant, PCRRG will arrange for legal representation on your behalf.
Your attorney has only days to file a Notice of Objection to a deposition subpoena. Avoid discussing the case or the deposition with colleagues, as such discussions are not protected from legal discovery. Conversations with your spouse, risk manager, insurance company representative, and attorney are protected.
Failure to promptly notify and forward a copy of the Summons and Complaint to your professional liability insurer may result in denial of coverage. The defendant has only so many days from the date of receipt to file the appropriate response. Upon notification to the institutional risk manager and professional liability insurance representative, a lawyer will be assigned to respond on behalf of the named insured. Failure to answer a complaint can, also, result in the court ordering a judgment against the defaulting defendant, and awarding damages.
No.
Residents (house officers), fellows, and medical students can be named alone or with other providers in a medical malpractice case. They can also have their name reported to the National Practitioner Data Bank if payment is ultimately made on their behalf.
The procedural rules that govern civil actions require the naming of appropriate individuals to avoid dismissal of the lawsuit by the court. The selection of individuals named as defendants is made by the party bringing the lawsuit (the plaintiff). The law does not limit the number of defendants who can be named, as long as they are considered a “necessary” party to the case. If the plaintiff can show that a resident, fellow, or medical student is a necessary party, that individual will remain in the lawsuit. Defendants may also be added or dropped during the course of the suit as additional information is developed.
Upon receipt of a patient’s written authorization, you must honor a request for medical information. Send a complete copy of the patient’s record, or copies of specifically requested items in the record (not a summary or letter) to the requesting attorney. A reasonable copying fee may be charged. If you suspect that the request may be followed by a claim for malpractice, your risk manager should be notified. If the request for records appears to be tied to an automobile accident or workers’ compensation case, review with your risk manager.
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