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Knowledge of basic risk management procedures for dealing with actual or alleged adverse outcomes can help physicians, healthcare providers and healthcare organizations minimize the liability risks inherent in their practices.
Whether an adverse outcome or alleged injury ultimately results in a claim often depends on the insured's initial response.
Adverse Outcomes
Adverse outcomes do not always imply actual injury. Some adverse outcomes are apparent only to the insured and may represent extremely subtle deviations from the expected results. In situations where the patient can reasonably conclude that the outcome is not as expected, the insured must decide whether to discuss it with the patient.
Open and honest dialogue with patients is encouraged. From a risk management perspective, it is wise to discuss the outcome in a factual manner without assessing blame. Do not assume the posture that "I must have done something wrong." More attention should be focused on recommended interventions rather than on what led to the patient's current condition.
The insured is not obligated to disclose mistakes or errors in treatment. However, if confronted by the patient's concerns, failure to be frank may result in a claim of fraud or concealment. Honesty remains the best policy, as the key to dealing with an adverse outcome lies in the ability of the physician/provider and patient to maintain trust in their relationship.
Patient Complaints
Patient complaints represent greater risk exposure because there is now expressed dissatisfaction with the quality of service or cost of care. From a risk management perspective, if complaints are identified early and properly handled, formal litigation may be avoided. Patient complaints can be broken down into two categories - those where quality of care is an issue and those where it is not an issue.
When the complaints are about service, interpersonal relations or billings - and quality of care is not criticized - the physician/provider can respond directly or delegate the matter to the office manager or other designated staff member. Ideally, the problem would be identified and resolved without the insured's intervention.
Appropriate authority levels for billing adjustments can be assigned to staff members; however, staff must always be sensitive and attentive to quality-of-care issues. If quality of care does become an issue, the physician/provider should become involved in the risk assessment before any billing adjustments are made. It is also appropriate for the insured to intervene when the complaint alleges problems in interpersonal relations.
Quality-of-Care Issues
When a patient alleges poor quality of care and seeks a billing adjustment or monetary compensation, an insured should immediately recognize the complaint as a potential lawsuit.
Quality-of-care complaints can be either verbal or written. Settlements of verbal demands need not be reported to the National Practitioner Data Bank. A written demand, however, is potentially more significant in its impact on an insured. Therefore, payments made following written demands require technical analysis to determine whether reporting is required.
Where compensation (or billing adjustments) and quality of care are paired in the same discussion, SCPIE strongly encourages an insured to contact either our Risk Management or Claims Departments.
If an insured concludes that an injury is negligible (e.g., the patient's dissatisfaction is financially motivated) and that a positive relationship remains possible, SCPIE's Risk Management Department should be contacted to provide additional assistance. However, when an injury is significant, and/or the insured believes a rebonding process is futile (regardless of whether the complaint is verbal or written), the insured should immediately contact SCPIE's Claims Department for assistance. The goal of both departments is to avoid litigation and mitigate damages.
Records Requests
When there has been an adverse event or patient complaint, a request for medical records by the patient or an attorney may signal the start of litigation. When a law firm requests a record, the proper risk management response is for the insured to review the record and immediately seek advice from SCPIE.
Discussing Patients
An insured may learn of patient dissatisfaction or intention to begin litigation from colleagues. However, SCPIE suggests that insureds refrain from discussing a patient's injury or care with other physicians/providers. Although it may be appropriate to ask what has been said - for instance, what concern has been expressed - insureds should not respond to questions or discuss their interpretation of events. Such discussions are not privileged and, unfortunately, could come back to haunt insureds as litigation moves forward.
Litigation Activities
Demands for Compensation
When a patient alleges injury due to inappropriate care and demands compensation either verbally or in writing, it should be considered a claim. If the insured is unable to reestablish a bond with the patient, he or she should notify a SCPIE Risk Manager (800/585-7799), a Claims Representative (800/464-4467) and/or the insurance agent/broker with the following information:
- Name, address, telephone number and policy number.
- Patient's name, age, address and telephone number.
- Brief description of care and treatment given.
- When and where the alleged incident occurred.
- Patient's last treatment date.
- Names of witnesses, including treating physicians or other
healthcare professionals.
- If possible, an assessment as to the basis of the claim - why are
you being sued? If it is a written claim, both the letter and envelope
should be retained.
Letter of Intent
In most states, prior to the initiation of a lawsuit, a plaintiff is required to give the defendant notice of intent to sue. The purpose of this letter is to allow the claim to be resolved without resorting to formal litigation. This document, which has different names in different states (e.g., Letter of Intent or Presuit Notice), must be sent out a fixed number of days prior to commencement of a lawsuit. In California, for example, a Letter of Intent must be sent 90 days before a lawsuit can be filed.
If you receive a Letter of Intent, contact a SCPIE Claims Representative (800/464-4467) and/or your insurance agent/broker as soon as possible.
Summons and Complaint
A complaint is a document filed with the court that explains why compensation (damages) should be awarded to the patient (plaintiff).
A summons is a document issued by the court that requires the insured (defendant) to answer the complaint within a specified time frame. To properly defend an insured's rights, SCPIE must be notified immediately after receipt of a summons.
Actions Following Receipt of a Malpractice Claim
An insured is emotionally vulnerable immediately following the receipt of a malpractice claim. Although the insured may experience distress, frustration, panic, guilt or anger, it is crucial to adhere to the following policies of loss control:
- Create a litigation file that is separate from the patient's chart for all correspondence relating to the claim. Make sure staff members do not file
any litigation correspondence in the patient's medical record.
- Accept all correspondence from the patient or representative without
comment or argument.
- Do not alter, add or delete anything in the patient's clinical records or
business files.
- Do not admit liability or attempt to place blame.
- Do not discuss the case with journalists, attorneys or other physicians/providers.
- Do not release original patient charts or X-rays.
- Do not contact the patient without SCPIE's knowledge.
- Do not complete any written summaries of the patient's care and treatment unless specifically coordinated with your SCPIE Claims Representative or defense counsel.
SCPIE Management of Claims
Upon receipt of a reported claim, the SCPIE Claims Department establishes a file and assigns it to the appropriate personnel. A Claims Investigator is assigned to claims that involve verbal or written demands or letters of intent to sue. He or she conducts a complete examination of the circumstances.
When a lawsuit is filed and SCPIE receives a copy of the summons and complaint, the case is assigned to defense counsel by a Litigation Supervisor. Although the defense counsel will work closely with insureds throughout the case, the Litigation Supervisor will remain available to answer insureds' questions.
At or before the completion of discovery (the information-gathering process following the service of a lawsuit), the case is evaluated, with a recommendation either to defend the matter (and proceed to trial) or begin settlement negotiations. SCPIE will consult with the insured concerning any settlement recommendations.
Regardless of the type of claim, insureds should expect to assign a significant amount of time to assist in the investigation and the defense or settlement.
SCPIE's Commitment
The company is committed to fighting unjust malpractice claims and settling all justified claims promptly.
Risk managers provide 24-hour support for insureds dealing with adverse events or dissatisfied patients. Further, qualified Claims Department personnel are also on hand to provide a professional, reasoned approach to claims management based on their expertise in professional liability defense.
An insured's cooperation with, and assistance to, SCPIE's Risk Management and Claims staff and attorneys is essential for ensuring the most effective defense against any professional liability claim, and for reaching a fair and swift resolution.
For more information, call SCPIE's Risk Management Department at 800/585-7799, or the Claims Department at 800/464-4467.
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