Case managers protected from liability by documenting
Case managers protected from liability by documenting
CMs most vulnerable for discharge plans
As they go about their day-to-day activities, case managers should take steps to protect themselves from possible legal action if the patients whose care they manage experience an adverse outcome.
"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 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," says Elizabeth Hogue, Esq., a Washington, DC, attorney specializing in healthcare issues.
It doesn't matter what practice setting they are in, case managers can be held liable for damages if their actions fall below generally accepted standards of care, and the patient has a bad outcome, adds Joan Prudhomme, JD, BSN, manager at Huron Healthcare, a healthcare consulting firm based in Chicago. "Malpractice results when a case manager does not gather the information needed to develop an appropriate discharge plan or does something outside the standards of care and the decision he or she makes results in injuries or damages," Prudhomme says. "Case managers need to be aware of national standards of care and document their interventions."
When it comes to defending against a lawsuit, there is no substitute for detailed and complete documentation, Hogue adds. Keep in mind the saying: "If it wasn't documented, it was not done" and make sure that everything you do is fully documented in the patient record, she adds.
Develop good habits and document in real time while your memory is fresh. It's not necessary to write out a narrative for documentation, but instead, when you're on the telephone with a payer, a family member, another clinician, or a referral source, jot down notes during the conversation. "It's a very powerful tool and adds credibility when case managers can say they took these notes while the conversation was going on, rather than waiting until the end of the day," she says.
Prudhomme adds that the discharge plan is where case managers are most vulnerable to liability. Case managers can be at risk not only if they fail to set up an appropriate discharge plan, but they also might be liable for causing delays in discharge if patients develop complications as a result of remaining in the hospital, she points out.
To create an effective discharge plan, case managers should do a thorough assessment of the patient's condition, and spend time with the patient and family to learn about the patient's home environment and family dynamics. "The RN case managers should take a major role in the discharge planning process, and at least complete the discharge assessment. Social workers and case managers need to work very closely to develop and execute the complex discharge plans, and meet the psycho-social needs of the patient," Prudhomme says.
Make sure you have assessed your patients' readiness for discharge and determined what level of care they will need. Talk to the physicians to make sure they are clearly communicating their patients' condition and that they are on board with the discharge plan. Discuss the discharge plan with the patient and family, make sure they understand it, and when appropriate, give them the information they need to make a decision on post-discharge care.
"Case managers and social workers need to understand that they are patient advocates, and that their recommendations should always be in the patient's best interest. At the same time, they have to recognize that patients have a right to self-determination. Patients have the right to make decisions that are not in their best interests. They have the right be homeless and refuse to go to a shelter, or refuse to receive post-acute services," Prudhomme says. Case managers should always document their recommendations and that patient's decision not to follow the recommendations, she adds.
Case managers don't have responsibility for what happens once a patient is discharged with an appropriate discharge plan in place, Hogue says. "The law generally says that case managers aren't liable for what happens after appropriate referrals as long as they have no further involvement in the patient's care. That's why it's so important for case managers to clearly and completely document their discharge plan and their discussions with patients and families," she adds.
The increase in patients who are uninsured or who have insurance that doesn't cover discharge services adds to the complexity of discharge planning and creates challenges for case managers, Prudhomme says. She suggests that case managers attempt to find funding for post-discharge services and document the agencies and organizations they contact. Provide a referral to a social worker or a financial counselor. Engage patients in the discussion and allow them to make the final decision.
Make sure patients are appropriate for services Caregivers must understand their role In today's healthcare environment, case managers are under more pressure than ever before to discharge patients from acute care as quickly as possible, often after a short stay, which makes it a challenge to develop an effective discharge plan. But if the patients are discharged prematurely and suffer damages, case managers are at risk for a lawsuit, says Elizabeth E. Hogue, Esq., a Washington, DC, attorney specializing in healthcare issues. Case managers should make sure that patients are being discharged to the right level of care and if they are going home with home healthcare, home medical equipment, or hospice services, that their clinical needs can be met in the home. and that they are appropriate candidates for the services, Hogue says. "As inpatient stays become shorter, referrals for post-acute services are increasingly frequent and can improve the quality of life for patients, but first case managers need to make sure the patient's home is safe and able to accommodate the patient, and that the patient can care for himself or has a caregiver available to meet his or her needs in between visits from the professional staff," she adds. Before you make referrals for home health services, make sure that the patients thoroughly understand that the care they receive in the home will not be like the care they get in the hospital, and that they will need assistance much of the time. "Caregivers play a crucial role when patients receive home health or hospital care. Case managers must make sure that patients and their caregivers clearly understand the role before they make referrals for post-acute services," Hogue says. Be as specific as possible about the role of primary caregivers, she advises. Help them understand the tasks they will be expected to perform and realistically evaluate whether they can handle them. For example, if a patient will need assistance with transfers, someone with back problems may not be appropriate for the role. If caregivers must deal with incontinent patients, dressing changes, or injections, they need to understand that up front. Discharging patients to home with post-acute services when they cannot care for themselves and have no primary care giver puts case managers at risk for legal liability, Hogue says. "It is also likely to violate the important ethical principle of justice, which dictates that all patients are entitled to appropriate care," she says. |
Protect yourself with malpractice insurance Benefits outweigh the costs When case managers purchase their own malpractice insurance, even if they are covered under their employer's policy, they get peace of mind at a relatively low cost, Elizabeth E. Hogue, Esq., a Washington-DC based attorney specializing in healthcare issues, asserts. "Malpractice insurance is not so expensive that it's prohibitive, and the potential benefits far outweigh the costs," Hogue says. Malpractice insurance protects the insured's assets in case they are liable for damages. "Case managers may think they don't have any assets but they have wages from employment, home, an automobile, and a savings account, and they could lose those if they are sued," she says. If there is a lawsuit filed on behalf of a patient with whom you were involved, expect to be included, Hogue says. "Attorneys are trained to include everyone who sees the patient in any malpractice lawsuits they file," she says. "Their point of view is that they won't know who is responsible for the injuries or damages the patient received until they sort it out later under discovery. For the sake of risk management, they can't afford to overlook someone and that means that case managers are going to be included." Attorneys tend to look at who has the deep pockets and that's usually the employer. As long as they are acting within their scope of practice, case managers are likely to be covered by the malpractice policies that are paid for by their employers but it's still a good idea for them to have their own malpractice policies for a number of reasons, Hogue says. In some instances, employers could claim that case managers should not be covered under their policies when damages occur. "If an employer's legal counsel determine that the actions a case manager 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. When claims are filed, your employer's insurance company will assign legal council to defend the claims. The legal counsel clearly represents the employer, not necessarily the employee, in this case, the case manager, Hogue says. If case managers purchase their own malpractice insurance and they are included in a lawsuit, their insurer will assign a legal counsel whose only allegiance is to the case managers, and who has their best interest in mind. "If necessary, the case manager's legal counsel can counter any arguments by the employer's attorney that the employer's insurance should not cover them," she says. If multiple claims are filed against the same provider, including the case manager the claims may exceed the limits of liability of the employer's policies. In these cases, the only coverage case manager may have are the policies they purchased themselves, she says. Sources For more information contact:
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As they go about their day-to-day activities, case managers should take steps to protect themselves from possible legal action if the patients whose care they manage experience an adverse outcome.
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