1. 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
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2. 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

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

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

12. 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

13. 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

14. 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

15. 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

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

17. 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

18. 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

19. 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!

20. 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?)

21. 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?