There is only one thing worse that receiving notice of a medical malpractice claim being filed against you - being served a claim when you never saw or treated the patient!
You can thank history for this anomaly. The basis of vicarious liability dates back to the feudal times of "masters and servants". It basically holds the "master" liable for the actions of the "servants". It is similar to the "deep pocket" strategy of attorneys. Since the servant seldom had the capability to compensate the victim, the master's pockets were deeper and better able to provide compensation.
There are numerous occasions where this principle of vicarious liability can come into play:
- You could be held liable for the actions of an employee within your organization.
- You could be held liable for the actions of a contractual partner within your practice or group.
- You could be held liable for the actions of an ostensible partner - a situation where there is no written contract, but the relationship is perceived to be a partnership.
- You could be held liable for the actions of a medical provider that simply rents space within your facility.
This concept of vicarious liability also extends beyond medical malpractice. As an employer, you could find yourself liable for the actions of one co-worker against another. If an employee is injured by another employee, the employer could be held vicariously responsible for the co-worker's actions, rather than the co-worker directly.
Another unseen patient situation could arise from an informal consult. A simple discussion with another doctor over lunch about the treatment of patient could be considered an informal consult. In a malpractice lawsuit, such informal consults are treated equally with formal consults. Even such casual conversations, likely to surface during discovery motions by a plaintiff's attorney, can create a doctor-patient relationship and duty to the patient.
Claims resulting from unseen patients are not that unusual. And they are not limited to vicarious liability and informal consults. Consider the treatment of your patients for dangerous communicable diseases. If a patient under your treatment infects an unknown person, they could sue you and win - if you fail to advise and counsel your patient on the seriousness of their condition and how to avoid infecting others. As one California court stated, "Such precautions are not taken to protect the health of the patient, whose well-being has already been compromised, such precautions are taken to safeguard the health of others."
At this point in the article, I should remind the readers that I am not an attorney and am not providing legal advice. The information is primarily based on my experiences within the realm of medical malpractice liability insurance.
That being said, there are some common-sense guidelines to help protect yourself from lawsuits of this nature:
- Maintain, and periodically update, your practice's Policies & Procedures Manual, as well as your Employee Manual.
- Maintain detailed records on all formal and informal education undertaken by members of your practice, group, clinic or hospital.
- Maintain detailed employee records of all disciplinary warnings and resolutions.
- Exercise due diligence in hiring employees and entering into real or ostensible partnerships. Think of yourself as an underwriter determining the level of risk.
- Exercise similar due diligence in renting space to another provider within your facility.
- Conduct regular, full-staff meetings to reinforce behavioral patterns and operational procedures within your organization.
- Be wary of any informal or casual conversations about another physician's patient.
- Document and keep a file on all such casual conversations in the same manner you would document a patient visit.
- Issue specific guidelines related to the treatment of patients with dangerous communicable diseases, follow such guidelines to the letter, and document them in the patient file.
The threat and scope of potential litigation against doctors is growing. From the reality of today's economic turmoil to the loss of health insurance by hundreds of thousands of individuals and the growing utilization of non-physician professionals, lawyers are looking at the medical industry as fertile ground for lawsuits. Therefore it is critical that every organization audit and assess its operations from the viewpoint of the patients - both those you see and those you may not see.
J Michael Rosenthal, ARM - President and CEO, RGI Insurance Services
Mike Rosenthal is an Associate in Risk Management (ARM) and CEO of RGI Insurance Services. RGI Insurance Services provides all types of insurance for doctors and medical groups such as medical malpractice, workers compensation and group benefits as well as risk management services, human resource services and OSHA compliance services.