Protect yourself from lawsuits, allegations of fraud and abuse

Complete documentation, malpractice insurance are essential

In today's litigious society, it's important for case managers to understand the laws and regulations that affect their practice and to protect themselves against lawsuits and allegations of fraud and abuse.

"The role of the case manager is becoming more and more important and more and more clear as time goes on. Our society is not getting any less litigious and there is no doubt in my mind that case managers may be included in lawsuits," says Elizabeth Hogue, Esq., a Washington, DC-based attorney specializing in health care issues.

Case managers can be at risk for legal action if the plan of care they develop doesn't meet the patient's needs, is incomplete, or if the patient is referred to a provider that cannot provide appropriate care, she says.

"National standards of care make it clear that case managers are responsible for taking appropriate steps to help ensure that patients receive appropriate, cost-effective care," she says.

Accurate and complete documentation is crucial to avoid fraud and abuse charges and to manage risk from lawsuits, Hogue says.

Keep in mind the saying: If it wasn't documented, it was not done. Make sure that everything you do is fully documented in the patient record, she adds.

This will protect you from charges of submitting false claims as well as the potential for medical malpractice lawsuits, she says.

"The Office of the Inspector General [OIG] of the U.S. Department of Health and Human Services has repeatedly stated that providers carry the burden of proving that care was actually rendered to patients," Hogue says.

If practitioners can't show that they rendered appropriate care for which they submitted claims, because it was not documented, fraud enforcers, such as the OIG, may conclude the claims submitted by the providers are false, she says.

In addition to large fines, submission of false claims can include suspension or exclusion from participating in Medicare and Medicaid programs and other federal and state health programs.

Providers also run the risk of negligence or malpractice when they fail to document the care provided, Hogue points out.

This is particularly important when case managers or other providers make recommendations to patients that they reject and neither the recommendation nor the refusal is documented, she says.

Hogue cited a lawsuit in which Joseph Lee Amos sued Rebecca L. Crouch, MD, and her malpractice insurance company, Louisiana Medical Mutual Insurance Co., claiming that Crouch breached applicable standards of care when she failed to recommend and conduct diagnostic testing indicated by Amos' symptoms of bleeding after bowel movements. Amos sought a second opinion from a physician who diagnosed him with colorectal cancer.

The lawsuit claimed that Crouch's breach of standards of reasonable care caused a delay in diagnosis or treatment of his cancer.

Crouch argued that she had recommended appropriate tests to Amos but he refused. However, since she had not documented her recommendation or his refusal, the court concluded that it could not reasonably conclude that Crouch had made the recommendations.

"If case managers don't document what they did in terms of making appropriate referrals and appropriate management of the patient's case, they could find themselves in the same boat," Hogue points out.

The same situation could be applied to case managers in the insurance industry, she says.

If a case manager or disease manager recommends a treatment plan to a patient or suggests a particular service, it should be thoroughly documented in the record, she says.

It is essential to correct or supplement patient records after the fact if a retrospective review reveals incomplete or inaccurate records, Hogue says.

"The records must be corrected or supplemented in order to help ensure quality of care, meet applicable regulatory requirements, and avoid allegations of fraud and abuse," Hogue says.

The record may be corrected if the clinician has a clear recollection of the information or there is a written record that serves as the basis for the clinician's supplement or corrections, she says.

Hospital and provider case managers may be called to correct the record if a retrospective review reveals incomplete or inaccurate records.

The same is true of case managers in the insurance setting, Hogue says.

For instance, if a retrospective review shows that a member's case management services were terminated and the record doesn't reflect the reason, the file should be amended to include documentation as to why the company is no longer providing case management services, she says.

Supplements must include the date the entry is made, the information that was originally omitted, and the date on which it was available, along with the signature and title of the employee who supplemented the record, Hogue says.

"Corrections must be made by drawing a solid line through the mistakes. Providers' internal policies and procedures may also require the staff to write the word 'error' in relation to the information through which a line has been drawn," she says.

Clinicians must not use correction fluids or make erasures when correcting the record, she advises.

Purchasing your own insurance

Purchasing your own malpractice insurance can provide peace of mind at a relative low cost, Hogue says.

"I believe every case manager should have his or her own malpractice policy. It's not so expensive that it's prohibitive. Case managers may think they don't have any assets; but they have a home, an automobile, and a savings account and they could lose those if they are sued," she says.

Hogue recommends that case managers purchase malpractice insurance even if they are covered under their employer's policy.

When claims are filed, your employer's insurance company will assign legal counsel to defend the claims. The legal counsel clearly represents the employer, not necessarily the employee, which in this case is the case manager, Hogue says.

"In fact, if legal counsel determines that actions a case manger took are outside the scope of employment, the malpractice insurance company may decide there is no coverage for the claims filed against the case manager. Under these circumstances, the only insurance case managers may have is the coverage they purchased," she says.

If you purchase your own malpractice insurance and a claim is filed against you, your insurer will assign legal counsel, which will represent your interest.

In some instances, multiple claims may be filed against the same provider and may exceed the liability of your employer's insurance policies. This also means that the only coverage you have is what you purchased yourself, she adds.

There's a misconception that if a case manager has malpractice coverage he or she is more likely to be sued, Hogue says.

"This is not true. In most instances, patients and families have no way of obtaining information about whether or not you have malpractice insurance before lawsuits. Even after a lawsuit is filed, discovery may prohibit attorneys for the plaintiffs from getting information about malpractice insurance," she says.