Randy Danielsen, Ph.D., PA-C Emeritus, DFAAPA

Professor & Director, Doctor of Medical Science Program

Department of Physician Assistant Studies

Arizona School of Health Sciences

A.T. Still University

What You Must Know to Avoid Being Sued!

• Claims against PAs usually fall into four (4) primary areas of risk:

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• Each clinician is responsible for his/her own negligent acts.

• While, in most cases, you are covered under your employers policy, you may still be liable for your own negligence and may still be liable for all or part of a plaintiff ’s award or settlement.

• To win a negligence case and recover damages from a PA, a patient must prove each of three elements:• The PA owed the patient a duty of care,

• The PA breached that duty, and

• The patient was harmed as a result of the PAs action or failure to act.

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This lecture will cover the keys in twelve different areas to not being sued for malpractice as a clinician in today's litigious world as well as what to do if youare named in a suit.

Insurance issues: • Make sure you have a copy of your malpractice insurance

policy, particularly the declaration page with your name!

• Know your coverage!

• Claim’s Made

• Occurrence

• Limits

• Will not cover you for criminal behavior / failing to file mandatory reports to the state can get you into trouble

• Never take anything that can be construed as compensation for Good Samaritan acts

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Pharmacology-related issues• Be aware of “black box” warnings on drugs (e.g., quinolones)

(see BlackBoxRx.com)• No prescribing of controlled substances for self or family• Advise patients regarding drowsiness when prescribing such

drugs and put it on the prescription and chart (e.g., “muscle relaxers,” sedatives, opiates)

• Know the doses for the medications you use• Check for drug interactions (esp. warfarin)

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Testing-related issues• Don’t order tests that

are unrelated to the reason the patient presented (e.g., PSA, cholesterol)• Insurance may not pay• Increased risk of failing to

convey abnormal results• Know which are the correct tests to order in the

specific situation (no “knee jerk” shot gunning)• Have a foolproof way to convey delayed results to

the patient / personal physician (and document)

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Telephone-related issues• Don’t give telephone advice that may delay definitive

care• First aid advice is fine – advice

that delays care is a bad idea (“put some ice on it and come in ” is good, vs. “take some antacids and come in if not better” – not so good)

• Don’t leave HIPAA-related information on answering machines (have them call back)

• If unable to contact patients with critical values, ask the police to go to the house

EMTALA-related issues• Medical screening by medical /

hospital-authorized provider is

mandated

• No payment-related information should be sought prior to completion of the medical screening exam

• Patients are not to be discouraged from receiving a medical screening exam

• If on-call physicians won’t come in to see a patient, advise that physician - this can be a big EMTALA issue

• EMTALA issues: Transfers• Can be requested by patient

• Stable patients OK to transfer

• Unstable patients can be transferred if going to a higher level of care (cannot be refused by the receiving hospital unless services not available) / it is not required that all transfers be by ambulance

• Follow the hospital/clinic protocol regarding transfers TO THE LETTER

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HIPAA-related issues• No accessing patient records

without a specific need

• No picture taking or recording in by patients or families (have a large sign very prominently located and emphasize patient privacy)

• Do not give any patient-related information without the patient’s permission

• Do not even think about posting any pictures of any patient-related information on the internet

1. Texting2. Camera3. Insecure Wi-Fi4. Your contact list5. It’s so “Stealable”6. The “Cloud”7. No such thing as

“HIPAA Compliant”

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Ordering issues• Be very careful regarding the

writing of admission orders for other providers

• It’s best to let nurses take phone orders of consultants or admitting physicians

• If transcribing orders requested by a physician, indicate them to be at the request of the physician

• Make it clear who should be contacted if there are any problems after admission

What not to put in the chart• Any derogatory, discriminatory,

disrespectful or unprofessional comments about the patient

• Arguments, conflicts with physicians, nursing or administration – give just the facts

• Negative statements regarding prior care• Use quotation marks regarding any negative statements by

the patient about prior care.Written Communication

• Word descriptions entered at the time of the event are more credible,

• Memory that differs from the record is not persuasive,

• Most persuasive record is:• Accurate• Credible• Professional• Clear and available

picture of events

• What not to put on the chart (Credibility gap) • Incident reports should not be placed in the patient chart and

no reference to them should be made in a patient’s chart

• Addendums (are always self-serving)

• Written? Single line through, time, date, initial

• EMR – each has its own protocol for addendums

• Do not alter the record after the fact, obliterate errors or remove pages from the record!

• Some states say this should be interpreted as supporting the plaintiff ’s case

Leaving AMA • Consider notifying the collaborating physician ASAP

• Leaving AMA requires:

• Ascertaining whether the patient has the capacity to decide about care

• Advising the patient of the possible consequences of leaving AMA

• Offering medication that may physiologically help the patient (but which will not mask symptoms)

• Offering the option to return to the ED/clinic at any time

• Having a nurse and a family member witness the AMA conversation / provider and nurse should document

Ascertaining capacity to consent or to leave AMA• Ability to communicate a choice• Ability to understand the

information• Ability to appreciate the medical

consequences of the situation• Ability to reason about treatment choices

• Big predictor of lack of capacity = inability to appreciate risks

• Capacity may change during patient’s stay• Next of kin may be required for consent

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Elopement • Ascertain the medical risks of the elopement

• Call patient’s home and invite back, and document the call

• Consider telling the collaborating physician immediately

• If potentially serious medical problem and there is a mental capacity question, consider sending law enforcement to home

• If patient considered to be potentially dangerous to self or others, notify security to find patient and local police and document

Consent-related issues • Consider advising the collaborating physician if there are

any consent issues

• Requires ascertainment of capacity to consent

• If capacity to consent or refuse is present, you need to document the following items:

1. What you want to do, and the risks and benefits of the suggested procedure

2. What an alternative option is and the risks and benefits

3. What the likely outcome is without doing anything, and the risks and benefits

Error/Apology• Many hospitals have adopted

“full disclosure” policies when errors occur (even if the patient is not harmed)

• At least 38 states have some sort of apology laws on the books

• They vary significantly – e.g. in CA, apology is OK but admitting fault is admissible at trial

• This is dangerous territory – get guidance when there are any significant care issues in the setting of error

• General advice• Refer all complaints to the

collaborating physician

• Be very careful regarding doing inadequate work-ups on “frequent flyers”

• Be careful with the use of EMRs

• If appropriate, consider a policy in which the collaborating physician reviews all imaging and ECGs real time

• Indicate to patients imaging results are preliminary (if not the final reading of a radiologist)

• Immediately tell the collaborating physician, the director of the group or your supervisor

• Deliver all letters of complaint, etc., to the above person

• Say nothing specific (circumstances, allegation, etc.) about the suit to any others (spouses OK)

• You will be subsequently advised by the attorney assigned to your case

• Anatomy of a Malpractice Lawsuit• Complaint, Summons

• Answer within 30 days

• Discovery

• Interrogatories/Requests for documents/admissions

• Obtain medical records, interviews, meetings

• Obtain expert witness reviews

• Deposition of the parties & witnesses

• Deposition of experts

• Independent medical examination (IME)

• Motion for summary judgement

• Arbitration, Mediation, Negotiation

• Trial

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KNOW UPDATED 2018 NPDB GUIDELINES

• Medical malpractice payments

• Federal and state licensure and certification actions

• Adverse clinical privileges actions

• Adverse professional society membership actions

• Negative actions or findings by private accreditation organizations and per review organizations

• Healthcare related criminal convictions and civil judgements

• Exclusions from participation in a federal or state healthcare program (including Medicare and Medicaid exclusions)

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What Must Be Reported!