Turf wars can create liability for hospitals

A poor working relationship with the compliance officer can lead to more than just frustration and the occasional argument, cautions George B. Breen, JD, an attorney with the law firm of Epstein Becker Green in New York City. It also could lead to substantial liability for the healthcare provider.

A compliance officer and risk manager who do not work well together can inadvertently trample on each other's investigations and put sensitive information at risk of disclosure, he says. For that reason, consider whether certain problems should be the purview of one party or the other, he says.

It is only natural for the risk manager to want to take ownership of some issues that involve defending the organization from claims brought by a third party or by an employee, Breen says. Sometimes, however, the risk manager's proper role is to contribute but not necessarily to take the lead, he says. "The risk manager certainly can be valuable in helping protect the organization in this instance, from this particular threat, but the compliance officer may also be conducting a broader investigation that ultimately gets turned over to the government as part of a voluntary disclosure," Breen says. "The way you conduct the investigation, with that eventual outcome in mind, may be very different from the way the risk manager would conduct it with different concerns in mind."

Conversely, clumsy interference from the compliance officer can compromise information that the risk manager gathered as a part of a work product or otherwise privileged investigation, Breen says. The difficulty in sharing some privileged information is one reason some providers see a benefit to having one person take on both roles, he says.

For example, Breen says, the risk manager might be alerted to a potential claim arising from the care of a patient. An investigation uncovers a potential flaw in the system, a way that the injury could have been avoided. That information is important for the defense of the malpractice case but might be privileged, yet the compliance officer should be alerted to this potential problem so that he or she can address it from the compliance perspective.

"You don't want the compliance side to lose the ability to benefit from the information gathered on the risk management side," he says. "At a minimum, these two parties must work collaboratively, but even that will not eliminate dilemmas of sharing privileged information. But it's a certainty that a poor relationship will only worsen the problem and expose the organization to far more liability."

Source

George B. Breen, JD, Attorney, Epstein Becker Green, New York City. Telephone: (202) 861-1823. E-mail: GBreen@ebglaw.com.