Is your facility vulnerable to a malpractice lawsuit?

Documentation, communication are the key

In today's litigious society, it's more important than ever for case managers to take steps to protect themselves in case of a medical malpractice lawsuit, says Jacqueline Carolan, JD, an attorney with Fox Rothschild in Philadelphia.

Case managers and their employers already are being named as defendants in medical malpractice lawsuits, and their exposure is likely to increase in the future, she explains.

"Most nurses think they are protected and in most instances, they are. Nurses and case managers are not sued as frequently as physicians and other health care professionals, but unfortunately, many attorneys take a net approach and sue everybody who is connected with the patient's care," Carolan says.

If you're sued, it doesn't mean you are liable, but you still have to defend the case. You may not be personally sued; but your employer may be sued for your acts, and you may end up giving a deposition or even testifying in court.

Documentation can save you or can help make the plaintiff's case, Carolan notes. "These lawsuits do not come about until two or more years after the fact. By then, memories have faded, and if their work hasn't been carefully documented, case managers may not be able to prove what they did or didn't do."

It's not unusual for case managers to have very little face-to-face contact with the patient, she adds. You should carefully document instruction and/or expectations given to the patient.

Offering patients an overly optimistic view about what you can do for them will end up working against you, Carolan says.

"If you don't follow through with the promises you make in the document, an attorney can make the argument that you had a duty to provide these services to the patient," she says.

Carolan cautions against providing patients with promotional materials that have promises that can't be met. "The promotional material a case manager gives to patients sets a standard that can be held against them. Everybody loves writing up grand ideas about what they are able to do, but at the end of the day, they will be held to those promises," she adds.

Carolan recently finished a case in which a form letter from the case manager was a focus in a lawsuit. "It was a great letter, but it was overdone. The nurse case manager herself didn't prepare the letter, but it contained a promise that could not be kept, especially because the case manager was prevented from communicating with the patient."

Before you hand out anything in writing to a patient, examine the documents carefully to see what you ultimately are promising, she suggests. Problems occur in the choice of words used to describe the services a case manager provides, Carolan notes.

A well-crafted document should contain some kind of disclaimer, listing certain things that have to happen for the case manager to be able to follow through. Among these are patient cooperation and coverage by the insurance company for the services the case manager recommends, she adds. Good communication with physicians and other health care providers as well as clients is essential in helping case managers avoid liability, Carolan says.

Follow your instinct

Don't just take a physician’s orders at face value if you know there may be problems down the road, she advises. For instance, a physician may refer a patient to a particular specialist who doesn’t have an opening for six weeks. If you know that the patient needs the referral in an expeditious manner, you have an obligation to call the physician and let him or her know of the holdup and ask for a referral to someone who can see the patient sooner.

Be sure to speak up if you feel a physician has referred a patient to the wrong type of specialist or is otherwise sending the patient on a course of referrals that isn’t appropriate.

"Case managers shouldn’t just blindly follow orders. If they feel the referral isn’t appropriate, they should call the doctor and record the discussion with the doctor in their documentation," Carolan adds.

Case managers also may be liable when they fail to match patients with appropriate resources. For instance, if your patient is from a rural area with limited transportation, look at the best resources to meet his or her needs and ensure compliance based on the particular situation.

Keep in mind the patient’s cultural beliefs and customs when you make recommendations, and recognize that some of them may be hard to change. Also recognize that the patient’s dietary habits or customs may be hard to change.

"Case managers need to evaluate each individual patient and his or her individual situation. They should tailor their approach to the patient and find a solution that may not be a perfect solution but one that could ensure compliance," she adds.

10 Ways Case Managers Can Minimize Legal Risks

  1. Know your role and scope of your responsibilities.
  2. Develop and use good communication skills.
  3. Be objective in your documentation and in dealing with your patients.
  4. Know your facility’s policies and procedures and follow them.
  5. Always put the patient first.
  6. Use the patient’s resources appropriately.
  7. Make sure your documentation is clear, objective, and timely.
  8. Solve problems; don’t create new ones.
  9. Know the laws in your state as they relate to your practice.
  10. Put quality of patient care before cost concerns.

Source: Jacqueline Carolan, JD, Fox Rothschild LLC, Philadelphia.

Remember that as an advocate for your patients, quality of care comes before cost concerns when making post-discharge recommendations. "It’s not a defense to say that you didn’t recommend something because you knew the insurance wouldn’t pay for it. If you think it’s needed, document that you took the steps to recommend it," Carolan says.

There are instances when an insurance company will not pay for a service. In these cases, the case manager should go back to the physician to come up with an alternative order.

"The nurse should not fail to recommend or do something they think is the standard of care, just because of the insurance company. If you believe something is imperative, make the referral and document that you have done it. There’s not much you can do after the denial, but at least you have documented your efforts," she adds. Know your role and the scope of your responsibilities, Carolan suggests. Case managers should be careful to know what their roles are, and if they are unclear or deficient in knowledge about various resources, they should call on colleagues for assistance.

"Case managers get into trouble when they take it on themselves to do more if they aren’t really qualified to do so," she adds. Make sure your documentation is thorough and objective. "Case managers tend to document a lot of things they don’t need, such as information that is already in the medical record."

Do document the personal issues, patient compliance issues, and any red flags you see in evaluating the patient’s care. Consider customizing a document with details about the plan of care, what you will do and what the patient is expected to do, have the patient sign it, and attach it to your documentation, she adds.

If there are red flags, such as compliance issues, report them and include them in the documentation. If you are sued, get an attorney immediately, and don’t discuss the case with anyone, Carolan adds.

(Editor’s note: For more information, contact: Jacqueline Carolan, JD, Partner, Litigation, Fox Rothschild LLC, Philadelphia. E-mail: jcarolan@foxrothschild.com.)