Chapter 5—Defenses to Liability Suits PowerPoint to accompany Law & Ethics For Medical Careers Fourth Edition Judson · Harrison · Hicks Chapter 5—Defenses to Liability Suits Copyright © The McGraw-Hill Companies, Inc. Permission required for reproduction or display 5-1

Defenses to Liability Suits Objectives List and discuss the 4 C’s of medical malpractice prevention Relate how guidelines for physicians’ malpractice apply to other healthcare practitioners Discuss the various defenses to professional liability suits Know how to find the statute of limitations for malpractice litigation for your state Discuss five types of professional liability insurance

Four C’s of Medical Malpractice Prevention CARING Showing you care may make a difference if adverse events occur Avoid destructive and unethical criticism of the work of other health care practitioners COMMUNICATION Communicate clearly and ask for confirmation Relay communications clearly Report adverse events

Four C’s of Medical Malpractice Prevention-continued COMPETENCE Follow standards of care and appropriate procedures Constantly update your skills and knowledge Check and double check your work CHARTING If it isn’t in writing accurately and completely, it didn’t happen

Reducing Liability Suits Physicians/supervisors should Carefully select and supervise employees Explore all reasonable diagnostic methods prior to treatment Use conservative and less dangerous treatment when possible Limit or avoid diagnosing and prescribing by phone or email

Reducing Liability Suits continued Physicians/Supervisors should Have male physicians examine female patients with a female assistant in the room (same rule applies to female physicians examining male patients) Monitor equipment and facilities for safety on a regular basis Know risk for toxic or hazardous agents and make MSDS information available

Reducing Liability Suits continued Healthcare workers should Check each drug three times before administering Avoid criticism of other physicians Stay informed of new developments and progress in your profession

Reducing Liability Suits continued Healthcare workers should Follow practice standards for similar practices, level of education, and location Maintain complete and accurate records Relate phone and other messages accurately Follow protocol for making appointments

Communicating with Patients Patients who see the office as a friendly place, are less likely to sue Develop good listening skills Advise patients of approximate time each day that calls will be returned Explain illnesses and treatment options Obtain informed consent prior to treatment

Communicating with Patients continued Avoid statements that may be interpreted as an admission of fault Use tack, good judgment and professionalism when working with patients Refrain from overly optimistic statements Advise patients of prolonged physician absences as appropriate

Documentation Patient records are often used as evidence in a law suit Documentation should include All instances of patient contact Referrals Missed appointments Dismissals

Defenses DENIAL is the assertion of innocence However, if some of the facts are true, then the defendant may not use denial as a defense

AFFIRMATIVE DEFENSES Used to present factual evidence that patient’s condition was caused by some other factor than negligence Contributory Negligence Patient caused or contributed to injury Comparative Negligence Damages awarded proportionately to the degree the patient contributed to injury

AFFIRMATIVE DEFENSES continued Assumption of risk Patient knew of the risks before treatment and agreed to proceed Emergency Coming to the aid of a victim when a true emergency existed and the appropriate standard of care was met, given the emergency situation

TECHNICAL DEFENSES Release of the tortfeasor Statute of Limitations A 3rd party is responsible for the injury, therefore physicians cannot be held responsible for any negligence that occurred as a result of the injury Statute of Limitations Time limit for filing a law suit has expired as established by state law

TECHNICAL DEFENSES continued Res judicata “The thing has been decided” A claim cannot be retried between the parties once legally resolved

Professional Liability Insurance Two main types Claims-made insurance Covers the practitioner for claims made while the insurance is in effect Claims-incurred insurance Covers the practitioner for claims that arise during the time period when the insurance was in effect, regardless of the when the action took place

Professional Liability Insurance continued Tail coverage Practitioner is changing insurance companies (claims made coverage) Old company provides coverage for those dates that claims-made coverage was in effect

Professional Liability Insurance continued Prior Acts or “Nose” coverage Practitioner is changing insurance companies (claims made coverage) New company provides coverage for those dates that previous claims-made coverage was in effect, covering prior acts not yet claimed You buy a tail or a nose—but not both!

Ethics Guide Discussion As an allied health care provider who does not diagnosis, treat, or prescribe does it make sense to buy separate malpractice coverage? Do you carry coverage? You are asked to change a medical record to reflect better on an alleged adverse event that occurred. The patient is known for filing malpractice suits all the time and the change really does describe what happened more accurately. What do you do? (This sounds like an easy question, but what if your job is at stake?)

Ethics Guide Discussion continued You have just joined a new group practice as the Director of Medical Records. The group practice was a merger of two separate groups—one that had excellent medical record documentation, and the other with less than stellar documentation. How are you gong to bring the second group up to the appropriate standards?