With more patient care rendered in the ambulatory setting, physician's offices have more potential "to be the setting for the beginnings, continuation, or genesis of an untoward outcome," warns Leilani Kicklighter, RN, ARM, MBA, CHSP, CPHRM, LHRM, principal of the Kicklighter Group, a Tamarac, FL-based risk management consulting firm.
"In most, if not all states, there is little to no oversight of the physician's independent office practice setting," she says. Kicklighter is aware of many malpractice claims involving physician supervisors being sued for actions of team members, both physicians and non-physicians. (See related story, p. 105, on one such claim.)
Below are some areas of potential liability exposures in a physician's office- based practice:
• Failure to have a process in place to follow up on results of all ordered tests on a timely basis.
"These issues can not only lead to misdiagnosis or missed diagnosis, but also a claim for delay in diagnosis," says Kicklighter.
In addition, private payers and the Centers for Medicare & Medicaid Services require documentation of medical necessity. If there is no documented evidence that the results were obtained and considered by the ordering physician, says Kicklighter, "it is possible one might ask, 'If it wasn't important enough to follow up on, was it even medically necessary to order in the first place?'"
• Failure to maintain positive ongoing relationships with patients.
"This is a positive patient retention practice and a deterrent to claims," she says. Kicklighter advises physicians, whenever possible, to personally call the patient shortly after a visit, discharge, or treatment.
"Inquire how the patient is now feeling and if the medication or treatment is working," she says. "This allows the patient to convey information to the physician or to ask questions."
• Failure to set standards regarding triaging patients who call with a medical complaint but no appointment.
"This can lead to significant claims," she says. Kicklighter says guidelines should address:
- who may triage these calls;
- the process for handling calls from patients and others who want to speak to the doctor;
- the process for documenting such calls in the medical record;
- the process for handling and documenting after-hours calls.
• Failure of physicians or surgeons to understand their oversight role when employing or contracting with physician extenders such as advance nurse practitioners (NPs) or physician's assistants (PAs).
Kicklighter recommends providers use these approaches:
- Update protocols for independent practice as needed, to ensure compliance with state-specific laws and rules that govern the practice of NPs and PAs in the office-based practice setting.
- Periodically review medical records of patients seen by the NP and/or PA to verify complete documentation and compliance with established protocols.
- In those states where the NP and/or PA does not have authority to write prescriptions for controlled substances, have a system in place to review the medical record or actually see the patient on a timely basis, and if writing a prescription, document the verification of need in the record.
"To leave blank, signed prescriptions for the NP or PA to complete with the patient's name and drug can lead to drug diversion problems with the board of medicine, and a possible bad outcome," says Kicklighter.
Physicians often don't realize that they can be held vicariously liable for the action of their staff, regardless of whether the employee is a clerk, nurse, or physician's assistant, says Steven Adler, CEO of Physicians Indemnity Risk Retention Group, a Plantation, FL-based provider of professional liability insurance.
"What I find is that we focus so much on the physicians — and we should — but there is a failure to focus on the office staff," he says.
Physicians Indemnity gives physicians premium discounts for taking a risk management course. "But not only do they have to take it, their staff has to take it," underscores Adler. "That physician is ultimately responsible for what transpires in his or her office." (See related story, below, on legal risks of failure to inform patients of test results.)