Chapter 10: Strategies to Reduce Liability

Managing Physicians Facilities may have liability when a physician is involved in malpractice –Respondeat superior –Ostensible agency –Corporate negligence

Professional Practice Acts Regulatory boards –Created by State legislation –Statute defines the scope of professional practice and specifies: Composition of the board Duties and powers to create rules for the professional practice Licensure process Continuing education requirements Investigation and disciplinary actions

Professional Discipline Regulatory Board will: –Investigate suspected misconduct –Prosecute confirmed misconduct, as appropriate –Take appropriate disciplinary action for confirmed misconduct License revocation License suspension Fines Referrals for professional assistance

Examples of Misconduct Repeated acts of negligence Incompetence Aiding or abetting the unlicensed practice of medicine Failure to comply with government rules/regulations Exploitation of the patient for financial gain Evidence of moral unfitness to practice medicine

Examples of Misconduct Failure to maintain appropriate medical records Abandoning or neglecting a patient Harassing, abusing, or intimidating a patients Ordering excessive tests or treatments Unlawful use of controlled substances

Physical impairment of professionals Health problems, disease, disability, psychiatric issues, and alcohol/chemical abuse Symptoms of impairment –Making rounds late--complaints from staff –Inappropriate orders-- frequent accidents –Hostile behavior-- mood swings –Personal hygiene-- job changes –Neglected social commitments

Sexual Harassment Providers are in the unique position of power –Patient is dependent on the provider

Identifying Previous Misconduct Licensing boards share information concerning adverse actions against providers across state lines –The Federation of State Medical Boards –National Practitioner Data Bank Risk Managers should ensure that the facility hiring and credentialing policies include a procedure for checking the data banks

National Practitioner Data Bank Designed to collect comprehensive data on adverse actions taken against health care practitioners, malpractice payments made and Medicare/Medicaid exclusions. Insurance companies and hospitals are required to report to DHHS and state licensing boards any medical malpractice payments resulting from court judgments or settlements Facilities are required to check the NPDB for all new medical staff and every two years for re-credentialing

4 classes of adverse actions requiring reporting –Those taken against a practitioner’s license by a state medical board –Those taken against a practitioner’s clinical privileges at a health care facility –Those taken against membership by a professional society –Those taken by Medicare/Medicaid and the DEA National Practitioner Data Bank

Clinical Practice Guidelines Systematically developed statements to assist practitioners and patient decisions about appropriate health care for specific clinical circumstances. –Private Initiatives –Government Initiatives –Worker’s Compensation –Medical Liability Insurers Risk managers must not only be aware of clinical practice guidelines, but also the legal implications of ignoring them

Health professionals reviewing other like health professionals to assess: –Quality concerns –Hospital privileging decisions –Group practice membership decisions –Staff conduct –Professional isolation –Education Peer Review

Liability Alternatives Limit number of lawsuits Control size of awards Limit access of plaintiffs to the system

Removal of Malpractice Litigation from Judicial System Several tort reform proposals recommend shifting malpractice litigation away from the judicial system – Administrative Agencies – Alternative Dispute Resolution

No-Fault Proposals Under this type of system, adverse outcomes would be automatically compensated without lawsuits regardless of whether the outcomes resulted from negligence. – Accelerated Compensation Events – Enterprise liability – Other methods

Summary Risk Managers must work with the healthcare professionals in terms of practice guidelines and peer review. Proactive liability reduction can offer significant protection of the organization’s financial resources.