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It is true that some professionals who monitor criminal charges are extremely discouraged to the point of sounding like they’ve lost all hope. When asked what risk managers can do to help physicians avoid criminal charges, Jane M. Orient, MD, an internist and executive director of the Association of American Physicians and Surgeons, says, "Advise the doctor to open a pet store, or learn carpentry. It’s very difficult when they think they’re following all the rules, and it just takes one overzealous prosecutor who’s willing to distort the truth."
But others insist that risk managers can make a real difference. Harvey Tettlebaum, JD, is an attorney with Husch & Eppenberger in Jefferson City, MO, and has represented health care clients fighting criminal charges. He says risk managers can significantly influence whether criminal charges are brought and the outcome of any criminal investigation. One of the best strategies is something you probably already have working: a corporate compliance program.
Some medical malpractice cases lead to criminal charges of false claims because the government takes the position that a certain standard of care is expected before a Medicare payment is rendered. By submitting a request for payment, the provider is certifying that it met those minimum standards of care. A corporate compliance program can show a good-faith effort to meet those standards and to avoid false claims.
Tettlebaum points another way the compliance program can help. Most criminal charges require proof that you intended to harm the victim or were recklessly negligent. That’s a difficult burden of proof for criminal prosecutors in a health care case, so they often will try to show a pattern of gross negligence or reckless disregard for the quality of care provided.
"If certain operations in your hospital end up killing a patient several times in a row, or if you have a particular doctor whose care should raise some red flags when you look at the outcomes, the prosecutor may feel that rises to reckless disregard and prosecute," Tettlebaum says. "But a good corporate compliance program can demonstrate a culture of good faith, and that goes far to negate the charge of intent. If the prosecutor doesn’t think he can show the intent, he won’t bring the case."
The compliance program doesn’t even have to prevent every act of negligence or medical error; it only needs to be sufficiently diligent to show that the organization cared and was trying to spot any problems or negative trends as soon as possible. Quality improvement and peer review programs can yield the same evidence.
"The worst thing is if the prosecutor can come in as a stranger to the medical world, and point out a trend or a series of errors that you should have found on your own," he says.
Tettlebaum cautions that hospital risk managers carry a particularly heavy burden because they work with so many other provider groups, such as physician groups, clinics, and long-term care facilities. Your association with each of them means you could be drawn into a criminal investigation if the accused person provided the care on your property or somehow under your management. That means you should check with each one to make sure he or she has good corporate compliance and peer review programs in place.