Did a Patient Threaten to Sue You? Don't Panic or Argue
Let them vent frustration
It is not uncommon for a patient or family member who is unhappy with the services he or she receives in the ED to make threatening statements about filing lawsuits, says Justin S. Greenfelder, JD, a health care attorney with Buckingham, Doolittle & Burroughs in Canton, OH.
"In many cases, this amounts to merely an empty threat and no action is taken. This could occur for many reasons," Greenfelder says. The individual may calm down after a few days after the situation sinks in, he says, or may actually consult an attorney but is told that the case has a low probability of success.
While a patient may file a complaint "pro se" and represent him- or herself without legal counsel, Greenfelder says this is a rare occurrence. Here are the steps he recommends taking if a lawsuit is threatened:
Allow the person to vent.
Greenfelder says not to panic if a patient threatens to sue you. "Do not argue with the patient or family member and try to justify the result," he says. "That may make the situation worse."
The best response may be to let the patient or family member "vent," says Greenfelder, so he or she can get his or her frustrations out. "That may be difficult to listen to, but it may cause a patient or family member to be less likely to file a lawsuit," he says.
Learn whether your state has an "I'm sorry" statute.
An apology may be a natural reaction in response to a patient or family member's expressions of dissatisfaction, says Greenfelder. Many states have enacted an "I'm sorry" statute, he adds, making such apologies inadmissible.
"However, the degree to which such statements are inadmissible varies by state," says Greenfelder. In Ohio, he notes, an ED physician or nurse's expression of "apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence ... that relate to the discomfort, pain, suffering, injury, or death of the alleged victim as a result of the unanticipated outcome of medical care are inadmissible as evidence of an admission of liability or as evidence of an admission against interest." (Ohio Rev. Code 2317.43.)
Thus, in Ohio, Greenfelder explains, you may say something along the lines of "I'm sorry for your loss" or "I'm sorry this happened to you," and that statement cannot be used against you in court.
"But a statement would be admissible if the physician admits to culpability," says Greenfelder, with statements such as "I'm sorry I did the wrong test," or "I'm sorry I missed that artifact on the X-ray."
"The scope of protection in other states may be broader," he says. "It may be wise to check whether your state has an 'I'm sorry' statute, and to the extent your statements are protected."
Alert the appropriate individuals.
When a threat of a lawsuit is received, Greenfelder says the emergency physician should contact hospital risk management, and if he or she is a member of a group, the president of the group should be alerted. An ED nurse should contact his or her nursing supervisor, he advises.
"It is not necessary to contact an insurance carrier or private attorney at that time," says Greenfelder. "If a complaint is actually filed, then the physician or nurse should take the next step of informing their carrier."
Don't Distance Yourself
If a patient is yelling about the horrible care he or she received in your ED, your first reaction is probably to distance yourself. "That's a mistake," says Linda M. Stimmel, JD, a partner at Wilson Elser Moskowitz Edelman & Dicker LLP in Dallas, TX.
Instead, says Stimmel, try to understand why the patient is unhappy, and bring your risk manager into the situation. "Many times, such patients or their families will start taking notes and pictures," she adds.
The hospital may have a policy against taking photographs in the department due to patient privacy regulations, notes Stimmel. "However, don't become paranoid and tell the patient they cannot take notes," she says. "Give the impression that you want to learn why they are unhappy but that you are not 'afraid,' since you know good care was provided."
Many times, says Stimmel, an angry patient or family member will demand the hospital write off their medical bills. "If you receive such a call, listen, foremost. Don't become defensive and say that you did nothing wrong," she says. "Tell them you will research it and get back to them."
Always make sure you do get back to the patient and/or family, says Stimmel. "Depending on the situation, you may want to offer some write-off if there are concerns, or, if the care was appropriate, tell them so," says Stimmel.
Stimmel says to always document conversations with the patient or family members. "It is very helpful in a trial, possibly four years later, to show the plaintiffs were demanding money immediately," she adds.
If a patient or family threatens litigation prior to care, during care, or after care is provided, says Stimmel, document exactly what they said in the chart.
"Do not give your opinions or document subjectively," says Stimmel. "It is not helpful to a legal defense months later if your chart entry says, 'Patient seems unhappy and they might sue.' Chart the facts and put the patient's exact words in quotes."
What you should not document in the patient's chart is internal hospital or committee investigations, says Stimmel, as these may be covered by attorney/client or peer-review privilege.
"If you put that information in a patient's chart, you may waive the confidentiality and privilege," warns Stimmel. "Chart the facts of what was said by the patient and/or family. This will be very helpful to know if the care results in a lawsuit."
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