ORLANDO, Fla. — If Ron Scott, PT, EdD, JD, MSBA, had one piece of advice to present at the American Academy of Orthotists and Prosthetists Annual Meeting and Scientific Symposium, it was: hire an attorney.
Scott, an associate professor at Rocky Mountain University of Health Sciences, Provo, Utah, and Lead Faculty, Healthcare, Management Certificate Program, MedBridge Education, Seattle, presented an overview of liability risk management issues and trends affecting O&P professionals here. A knowledgeable attorney, he said, can assist you with contracts, assess your liability risk and help you avoid costly medical mistakes.
According to Scott, liability risk management involves “clinical and administrative activities undertaken to identify, evaluate and reduce the risk of injury to: patients, staff, licensees, visitors and others, as well as the risk of (property) loss to the organization itself.
“Protecting yourself through liability risk management doesn’t take away from your [fiduciary] duty. You’re putting yourself second but only slightly,” Scott said.
Liability risk management is part of an overall quality management program in health care organizations, he said. Other components include monitoring, evaluating and managing clinical activities and resource utilization; a health care provider’s credentials and competence; and patient, staff and visitor safety and security.
To assess your personal and organizational risk management profile, Scott suggested identifying five highly effective liability prevention measures already in place. These might include, among others, an alarm system, quality control measures and staff training and education. Then identify five more liability prevention measures to implement in your organization; for example, making sure you have sufficient malpractice insurance; ensuring your facility complies with local building codes; and sharing your incident reporting procedure with all staff.
“We’re in a litigious society,” Scott said. An attorney knowledgeable in liability risk management can help reveal your weak spots in protecting your business or clinic. “Have an attorney come in to present a liability issues update once a year; it focuses staff attention in minimizing liability risk.”
Factors that increase liability risk
Scott outlined both external and internal factors that increase your liability exposure. A growing litigious trend in the United States exposes practitioners to sometimes frivolous lawsuits, so it is crucial that you maintain accurate paperwork to support your defense.
Governmental and non-governmental entity mandates, including HIPAA and OSHA guidelines, ACA mandates, Safe Medical Devices Act mandates and others, can be onerous.
Scott said the changing nature of health care delivery in general forces greater focus on patient volume and revenue generation.
“We have a lot of government mandates. Federal, state, local — all levels. We’re more focused under managed care with patient volume, and that’s necessary for us to be successful, but it does mean we need to be spending less time with patients or be more businesslike with patients. That’s a huge mistake.”
Internal factors include greater responsibility as a result of expanding scope of your practice; clinical practice guidelines and protocols; and greater accountability pursuant to evidence-based practice.
Legal basis for liability
Patients may have a legal basis to pursue a liability claim against you for several reasons, including breach of a therapeutic promise.
“Don’t make therapeutic promises to patients under your care,” Scott said. “The failure to achieve the result promised might result in contract-based malpractice liability.” He suggested that clinicians devise a therapeutic goal or a series of goals, rather than promise a particular outcome. “Goals are not promises; therapeutic goals are manifestations of your clinical judgment.”
A patient may pursue a liability claim if a practitioner provides substandard care (professional negligence) or engages in intentional misconduct while providing care, such as improper touching. As well, if a patient is injured due to a defectively designed or manufactured care-related product or piece of equipment, he may seek a claim.
“In O&P, as a principal part of our practice, we design and modify prosthetic and orthotic devices. We may face liability exposure for defective products.”
Scott explained that product manufacturers received a pass in recent times because of a reinterpretation of the 1976 Food and Drug Act, which states if they have premarket approval from the FDA for a device or product, they may be shielded from liability.
“Meaning that when I’m representing a patient I may have nobody to go up against except the primary care provider that fits the patient with that device,” he said.
Any injury that occurs in practice exposes you to risk, but not all injuries result in litigation. O&P practitioners must be mindful of practice conditions that might result in a patient injury from abnormally dangerous clinical activities; for example, if there are no parallel bars onsite, or if the practice environment is difficult for a patient to ambulate on.
For example, Center for the Intrepid VA rehabilitation centers offer equipment that may exceed the standard difficulty level that is found in a regular facility. “They’re all rehabilitative in scope … and these can be risky for the amputee,” Scott said. He noted that a patient who is member of the armed forces cannot sue for their injuries they received while in military or VA care.
Patient care protection
Scott said the courts generally hold health care practitioners to a high standard, and that they owe a “special duty of care” to patients. That said, practitioners do need to have protections in place in case the patient-practitioner relationship turns sour.
Consider carefully the patient’s demeanor during the first visit and the initial examination, before you accept the patient for an appropriate intervention. After that, Scott warned in certain cases, a patient might become belligerent or abusive, or may not accept your counsel and care, or the patient and practitioner may simply have a personality conflict.
“It’s much easier to disengage from a patient before you start a series of regular visits. You should have a policy or procedure that delineates how you extricate yourself from the situation. After care starts you open yourself up to intentional patient abandonment if you prematurely discharge a patient,” Scott said.
“From time to time you’re going to have conflict that’s irreconcilable. Clinic policy and procedure manuals should address this issue. You may have to tell the patient ‘We’re not getting along. Don’t take it personally, but I can’t help you achieve an optimal therapeutic result. With your consent, I’d like to transfer your care to another O&P provider.’” Scott recommended consulting with your practice attorney when you discharge a patient for a personality issue.
In case of incident
In the event an incident, injury or accident occurs for which you may be liable, it is important to file an incident report accurately and quickly but only after first attending to the injured patient. Because they are so critical, it’s important that staff knows the correct procedure for creating an incident report
“Generating incident reports appropriately is really difficult and should be part of an in-service,” Scott said.
The report should be written only by the percipient witness or witnesses to the incident, and reviewed by supervisors, risk managers and attorneys, Scott said. Incident reports should include only the facts but no speculation regarding the cause or assignment of blame.
“In other words, the witness has to be an actual witness to the event. It’s not correct to say — to see someone lying on the floor — and say on the incident report that they fell out of the chair. You have to say you saw them lying on the floor, next to the chair.”
Incident reports are normally considered privileged information; that is, they generally can’t be released to patients or patients’ attorneys unless there is evidence of lying on or hiding the report. The judge can view the report in private. (These differ from patient care records, which may be distributed to the patient and his attorney, third party payers and other providers.)
Scott noted a trend in health care, in which practitioners may, intentionally or inadvertently, apologize for an injury or for not achieving an optimal result. It is important to consult with a legal liability insurer to establish a policy before apologizing for medical mistakes.
“Not all medical mistakes are malpractice. I don’t like this trend of expressly apologizing for medical errors. When you say you’re sorry it’s a civil admission of medical liability in a lot of cases, particularly when it’s in writing,” Scott said. “It’s better to use phrases like ‘we regret’ or ‘we take responsibility.’”
Scott said using more appropriate language may result in decreased payouts and lower malpractice insurance premiums. — by Carey Cowles
Disclosure: Scott has no relevant financial disclosures.