Possible Malpractice Suit? Contacting the Right Person Can Make Claim More Defensible
EPs should report potential claims
Is malpractice litigation a real possibility due to an error made in the emergency department (ED) that harmed a patient?
David P. Sousa, JD, senior vice president and general counsel at Medical Mutual Insurance Co. of North Carolina in Raleigh, en-courages his emergency physician (EP) clients to "err on the side of contacting the carrier, to get ahead of a possible lawsuit. We like to hear from our doctors."
When the EP reports a potential claim, witnesses can be identified and evidence can be preserved. "It could be years before somebody files a lawsuit. We want all the evidence to be there, should it come to that," says Sousa.
A timely report to the right people "will go a very long way toward managing the risk of a lawsuit," says Francis A. Connor III, a partner in the Providence, RI, office of Barton Gilman. "Equally important is to protect these efforts from discovery by the patient’s attorney in a subsequent lawsuit."
Who are the appropriate individuals to report an incident to? This depends, in part, on whether the EP is employed by the institution where the patient was treated. If so, and if the EP is covered under its medical professional liability policy, "a prompt report to the hospital risk manager would be the top priority," says Connor.
If, on the other hand, the EP has his or her own medical professional liability policy apart from any insurance coverage that the institution provides, the very first call should probably be to the claims department of that insurance carrier. "Report the incident and request that defense counsel be assigned immediately to advise you," Connor advises.
Navigate Pre-litigation Process
Immediate notification of any legal claim or notice of intent to sue is usually required by the terms of the EP’s malpractice insurance coverage contract. Failure to notify the insurer in a timely manner may potentially void the malpractice insurance contract.
"This leaves the physician without coverage for any judgment or settlement, and for the costs of the defense," says William M. McDonnell, MD, JD, clinical service chief of pediatric emergency medicine and ED medical director at Children’s Hospital & Medical Center in Omaha, NE.
Keeping the insurer in the dark "is not likely to make an intent to sue just go away," says McDonnell. "It is better to have the benefit of an experienced insurer, and the insurer’s legal counsel, to help navigate the pre-litigation process."
Most malpractice policies are "claims-made" policies. This means that coverage is triggered by a report of a potentially covered loss to the company, which must take place while the policy is in force. "Thus, by reporting an incident immediately, you reduce the chance of not being covered, should your insurance policy no longer be in effect later," says Marc E. Levsky, MD, an EP at Seton Medical Center in Daly City, CA. Levsky is a board member of the Walnut Creek, CA-based The Mutual Risk Retention Group and a fellow at PIAA, a Rockville, MD-based insurance trade association.
In addition, says Levsky, the insurance company claims department can give the EP defendant important advice — such as how to preserve the medical record, how not to alter the medical record, and the persons with whom the EP may and may not discuss the case.
If the hospital asks for a statement from an EP regarding an incident, says Sousa, the EP should report this to the insurance carrier.
"We understand and appreciate that hospitals must do their job. But we also want our physicians to let us know if they are going to participate in somebody else’s investigation," says Sousa. This ensures that nothing will hurt the defensibility of the claim.
In this scenario, the carrier might send an attorney to the meeting and have the EP retain counsel. "A lot of ED physicians think they are obligated to do anything the hospital asks them to do, so we don’t know about it unless they call us," says Sousa.
The primary concern is that the EP will give an opinion with-out adequate investigation and circumspection. "We wouldn’t want the emergency physician talking off the top of his head and jumping to a conclusion," Sousa explains. "It may have just turned him into the first witness to be called by the plaintiff in the case."
Protect Information From Discovery
Amendments to the ED medical record should only be made with clear acknowledgement of when and why the amendment is made, advises McDonnell.
"However, when litigation becomes likely, members of the treatment team can document clarifying information," he says. This can preserve recollections and provide a reasonable basis for those recollections later.
An EP might chart, for instance, "After a follow-up call from the parent, I realized that I did not document my complete decision-making in my original note. I had considered meningitis, but ruled it out because ..."
Any addition that looks self-serving or artificial may do more harm than good, however. If a bad outcome occurs, John Tafuri, MD, FAAEM, regional director of TeamHealth Cleveland (OH) Clinic and chief of staff at Fairview Hospital in Cleveland, says EPs should be "very reluctant to add anything to the record."
"It looks like you have done something you shouldn’t do, even if it’s done perfectly legally with no nefarious intent," he explains.
Other than something that the EP is specifically asked by the defense attorney or hospital risk management to document in writing, says Connor, "it is generally unwise to memorialize the events in question in any hand-written, digital, or audio format."
Instead, says Tafuri, the EP can write a detailed summary of what occurred and include it as part of a letter to an attorney. "The attorney does not have to be a malpractice attorney; it could be a personal attorney," he notes. This ensures the information is protected by attorney/client privilege.
"Sometimes it’s very helpful, as time goes on, to have a lot of those details in writing that you won’t remember," he says.
This is a better approach than asking emergency nurses to make a late entry in the chart, advises Tafuri. Such documentation makes the EP appear defensive. "If the nurse testifies, The doctor told me to put that in the chart,’ it looks like you were trying to cover something up," he says. "That is how the plaintiff attorney is going to spin it."
It is appropriate, however, to remind the ED nurse to document something in real time. For instance, the EP might ask the nurse, "Can you talk to the patient, too? If you get the same story — that they are not going to stay — please document it."
"It’s a lot harder for a plaintiff attorney to maintain that something is not true when all of the notes reflect the same thing," says Tafuri.
Francis A. Connor III, Partner, Barton Gilman, Providence, RI. Phone: (401) 273-7171. Fax: (401) 273-2904. E-mail:email@example.com.
Marc E. Levsky, MD, The Mutual Risk Retention Group, Walnut Creek, CA. Phone: (925) 949-0100. E-mail:firstname.lastname@example.org.
William M. McDonnell, MD, JD, Clinical Service Chief, Pediatric Emergency Medicine/Medical Director, Emergency Department, Children’s Hospital & Medical Center, Omaha, NE. Phone: (402) 955-5140. E-mail: wmcdonnell@ChildrensOmaha.org.
David P. Sousa, JD, Senior Vice President/General Counsel, Medical Mutual Insurance Co. of North Carolina, Raleigh, NC. Phone: (919) 878-7609. E-mail: email@example.com.
John Tafuri, MD, FAAEM, Regional Director, TeamHealth Cleveland (OH) Clinic. Phone: (216) 476-7312. Fax: (440) 835-3412. E-mail: firstname.lastname@example.org.