Legal liability issues threaten case managers
Discharge planning common source of disputes
Whether case managers realize it or not, they can be caught up in legal disputes regarding their treatment decisions and recommendations. But along with that threat are several steps that can be taken to mitigate their liability.
According to Kathleen Lambert, JD, RN, a veteran nurse and practicing attorney in Tucson, AZ, the most common sources for litigation and legal problems for case managers stem from discharge planning.
"One trouble spot is premature discharge including improper transfer," she says. "Another is denial of service."
Failure to communicate or document is a major problem in health care generally, but especially in case management, because of the many people with whom case managers must communicate. "Simply verbally communicating is not always sufficient," Lambert asserts. "You need to document what was done."
According to Lambert, legal problems can arise for case managers in a variety of fashions. Patients may file complaints with hospitals or payers regarding the treatment they received. Those complaints may go to quality assurance or patient representatives or to risk management if it involves an incident. Reports also can be filed with state boards, boards of medical examiners, boards of nursing, or pharmacy boards. In addition, complaints can be registered with Medicare.
Beyond a verbal or written complaint lies the threat of a lawsuit. However, many of these lawsuits are resolved on a local basis or through an in-house resolution and are not published, Lambert notes. As a result, she often gleans information from complaints that are brought before boards, she says. Some of those become public information, and some are used as examples in risk management or quality assurance cases.
National standards of care
One legal issue that all case managers must be wary of is compliance with national standards of care. "There are some difficult issues involved there, because there are potential conflicts between case managers and their employers," says Elizabeth Hogue, JD, a veteran heath care attorney in Burtonsville, MD.
For example, the national standards of care for case managers say that case managers are required to advocate on behalf of their clients, Lambert says. However, some payer employers don’t expect case managers to advocate for their patients.
The appeals process for denials often puts case managers in a double bind, she explains. While they are advocating for the patient, many times they also may be representing the company that is either accepting or not accepting the patient.
According to Hogue, another contentious issue is liability for adverse payment decisions. "That remains very much an open issue," she says. Case managers sometimes contend they have no liability because physicians are making the treatment decisions, she adds. "I think they are really sticking their head in the sand when they say that," she warns. "I don’t think that works from a legal point of view."
Stick with standards of care
Access to information also is becoming a very important legal issue. That is especially true for case managers who work in the worker’s comp area because they often have trouble getting access to the information they need, Hogue says. However, the requirements imposed by the Health Insurance Portability and Accountability Act likely will make this an issue all case managers must contend with.
Here are several steps case managers can take to protect themselves and their hospitals:
• Stay within the standards of care.
According to Hogue, the best protection case managers have against liability is to know and understand the national standards of care published by the Case Management Society of America, based in Little Rock, AR.
Lambert agrees that the key is to stay within the standards of care and carefully document why services were provided or denied.
She argues that one of the most important things case managers can do is be aware of their role and the standard of care for that role. That includes an understanding of their job description, because any complaint likely will question whether they operated within the boundaries of that job description and their role as case manager.
According to Lambert, case managers also should maintain an understanding of the alternatives that can be offered and make sure patients are aware of those alternatives as well as the appeals process. She says case managers should learn to present the patient options without letting the conversation become personal. "Don’t try to make it a personal exchange," she says.
• Always document legibly.
Lambert says case managers must document services in a legible fashion. This may seem obvious, but anything that cannot be deciphered is worthless, she warns. Likewise, anything that can be misinterpreted can leave a case manager exposed in a courtroom. If the documentation was sloppy, attorneys will argue that the care provided also was sloppy, she says.
• Write things down promptly.
Case managers should be diligent about taking contemporaneous notes, Lambert says. "You want to get it down as it happens or as close to when it happens as possible so that you don’t increase your chance of error," she says. "If you put it off, you tend to forget it."
Even though case managers are busy juggling multiple responsibilities, they must be able to provide a paper trail that shows they covered every reasonable base and why treatment may have been adjusted, she explains.
• Demonstrate that the physician is driving the care.
Case managers should always demonstrate that the physician is driving the care, giving the orders, and leading the team. "You don’t want anyone to misinterpret who is the lead dog," she asserts.
In short, she says, case managers should not overstep their boundaries. "The way to do that is to document that you are checking the orders and show how you are following through," Lambert says.
• Stay abreast of case management.
Case managers who stay up to date with developments in case management will fare much better than those who do not, she points out. Even the most responsible case manager probably will receive a complaint somewhere along the line, Lambert warns.
[For more information, contact:
- Kathleen Lambert, JD, RN, Tucson, AZ. Telephone: (520) 760-1955.
- Elizabeth Hogue, JD, Burtonsville, MD. Telephone: (301) 421-01440.]
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