Malpractice issues likely to plague CMs in future

Follow job descriptions, rules to avoid liability

Case managers are being identified as defendants in medical malpractice and negligence lawsuits, and their liability exposure is likely to increase in the future, says health care consultant Cathy Nearhoof, RN, BSN, CCM, NMCC, CLNC.

Nearhoof, owner of Pittsburgh-based Integrist Healthcare Consulting, works with both plaintiff and defense attorneys and insurance companies by assessing, researching, and preparing medical malpractice, personal injury, workers’ compensation, and criminal cases for litigation.

It takes so long for legal issues to work their way through the system that lawyers currently are dealing with issues that arose in the mid- to late 1990s, Nearhoof says.

"Prior to then, there was little documentation in the medical records with case managers. Now, there is an increased inclusion of case managers within the health care system, and attorneys are not always knowledgeable about the role of a case manager. Needless to say, plaintiff attorneys are delighted to identify an additional defendant or someone who can be deposed and/or potentially increase the strength of their case," she adds.

A case manager’s inclusion in a malpractice case is based on a review of the medical records, an assessment of the case manager’s expected role, and a determination of whether the case manager might have breached his or her duty based on established case management standards of care.

"The answer to the possibility of a breach of duty is found in the job and program description." Nearhoof says. "The question becomes: Did that case manager do what the hospital or the employer said they would do?"

She suggests that case managers minimize their exposure to liability by adhering to case management standards of care, following the expectations outlined in their job description, and treating their patients professionally and with kindness and consideration. 

When a case is being considered for a lawsuit, there will be an assessment of all health care professionals who provided patient care or coordination to determine if the patient was thoroughly assessed, if his or her problems were identified, and if an appropriate plan of care was implemented, Nearhoof says.

When she assesses a case, she researches the medical records to determine whether the health care professional assessed the patient thoroughly and identified the problem correctly, and whether there were appropriate interventions in accordance with established standards of care.

For instance, she looks for documentation that the case manager made sure the specialist saw the patient before the weekend and that he or she followed up on the plan of care.

"In health care today, understaffing by nurses is reaching critical proportions. It’s not uncommon to see a case manager do the assessment, put something in the care plan, and not show up until discharge. But there are so many opportunities that exist for the case manager to intervene and positively impact the care," she says.

It all boils down to duty, and no matter what your health care role is, whether you’re a nurse, a social worker, or a case manager, your duty is always to the patient, Nearhoof says.

"When I see a case manager who seems to be focused only on utilization management, it sends up a red flag. Optimization of resources doesn’t always coincide with what is best for the patient," she says.

Being a case manager today is often a matter of balancing what is best for the patient with what is best for the entity that pays the case manager’s salary. This can be a real challenge, Nearhoof says.

"There is confusion in health care about whether a case manager is truly a case manager [or] a utilization manager with a change in title," she says.

Case managers, particularly those in workers’ compensation cases, may feel conflicted about where their duty truly lies, Nearhoof notes.

For instance, if an insurance case manager handles a head injury case with a goal of returning the patient to his or her previous employment, it is important for the case manager to maintain objectivity, assessing all aspects of the injury and the potential for recovery, and establishing an appropriate plan of care with realistic return-to-work goals, she adds.

"Sometimes, insurance case managers feel that they must get the patient back to work no matter what. Getting a patient back to work is part of the job, but it can’t be knowingly accomplished at the risk of further injury or incomplete recovery," Nearhoof says.

A case manager’s duty is to assure optimal outcomes for the patient and not the insurance company, she adds.

"Sometimes it means the employer isn’t going to get somebody back to work. It becomes confusing when the insurance company and/or the employer are pressuring you to inappropriately expedite the patient’s recovery and return to work. It is the job of the case manager to first ensure that each patient or client receives the treatment they need," she says.