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The Great Practice Makeover: Reducing Your Malpractice Risk


Robert Blanco, MD, wants to lower his risk of being sued, but isn’t sure how. Expert Laurie Hyland Robertson has a few ideas.

Aside from well-founded concerns about ever-escalating business costs, the subject of this month’s Makeover doesn’t have a problem, really. Instead, it’s trying to avoid any. Nearly every physician I talk to these days is walking on eggshells, afraid they or their staff will do or say something to trigger a patient to sue. The fear cuts across specialties, with reason: Analysts say physicians with generalized practices make attractive lawsuit targets, but some statistics show that board-certified specialists are more often sued.

“We don’t really know how we’re running our office compared to other offices,” notes cardiologist Robert Blanco. “So I don’t really know if what we’re doing is the best way, the most efficient way, [or] what kind of impression patients are getting of us.”

“I just feel like there’s so much to know, and so much to think of administratively to complement the clinical side of things, to make it all work efficiently,” echoes Nancy Blanco, the practice’s office manager. When you don’t know what you don’t know, and anecdotal evidence of the litigiousness of U.S. society mounts daily, private practice can be pretty scary.

The list of potential nasties, lurking in what many docs consider to be the dark closet of risk management, is indeed a long one: Continuity of care, patient privacy, even your building itself, to name a few. What can physicians and administrators - in any specialty - do to ensure a better night’s sleep?

Who’s responsible?

Nancy Blanco wishes she had a cheat sheet for the thorny situations that arise regularly. For instance, “If Dr. Blanco sees a patient in the hospital, as he’s discharging them he gives them instructions and tells them to follow up in the office,” she explains. “And they don’t do that, and now it’s several months later and they’re calling for an appointment or a medication refill.

“I don’t want to necessarily tell the patient that we can’t help him,” Nancy continues, “but where does the doctor’s responsibility start and stop? It’s that in-between phase, when we don’t really have a relationship with the patient, that we have questions about.”

Bill Sutton, general counsel to a privately held healthcare company in Florida, says that although the specifics can vary according to state law, Nancy is correct in saying that the practice doesn’t have an established relationship with such a patient. Although requests like this are common, physicians have no obligation to fulfill them. And of course, Sutton says, “It’s probably a very bad practice in the long run to do so unless there is a [well-] established relationship with such a patient, which involves regular follow-up visits subsequent to discharge from the hospital.”

When I asked endocrinologist Arvind Cavale for his thoughts on the matter, he tells me he relies on his best judgment. “There’s no correct answer that I know of,” he says. Cavale, who contributes to specialty-specific educational programs for Physicians Practice, simply writes specific discharge instructions that include when he wants the patient to follow up in his office. It’s up to the patient to adhere - or not - to this guidance.

He recommends a pragmatic policy for refills, too: “If it’s a drug that is unique to our specialty and a [general practitioner] would have a hard time prescribing it, then our staff will ask the pharmacist to have the patient call us for an appointment,” he explains. “We approve the refill only when the patient confirms the appointment with us, the rationale being that if the patient has listed me as his doctor, he must follow my instructions.”

Troublesome technicalities

Another continuity-of-care question worth addressing: Is it legal to stop seeing a patient because she has an unpaid balance? In a word, yes, although the specifics will vary by state. Be careful how you word communications with the patient related to a situation like this: “If we can’t get this resolved, we can no longer see you as a patient” is preferable to, “Unless you pay your balance … .”

“HIPAA has put the fear of everything in me, I guess,” says Nancy Blanco. This sums up the feelings of many physicians. But reasonable caution is always advisable. What if someone calls your office with detailed questions about a patient, for example? “They’re initiating the call, so they can say they’re Julie from Liberty Mutual or whoever … .” If this worries you, set a policy that you’ll always call patients to verify third-party inquiries or records requests, and insist that every request, even the patient’s, be made in writing.

How about when patients ask questions in the waiting room or another public area? Sutton advises a step back from the HIPAA hoopla. Patients should be ushered into a more private space, but in reality this type of thing happens all the time. The key is simply to be able to show that you’re making every effort to protect private information. Reinforce this policy for staff, but know that it’s not the end of the world if someone slips up.

Still, even the smallest practices are wise to think proactively about risk-management strategies and might consider forming a clinical risk committee (CRC), comprised of medical and administrative personnel, to examine both potential and actual problems. “Service issues” should also be on the CRC’s radar. Although they don’t constitute a basis for a malpractice claim, communication breakdowns such as long appointment waits can lead to dissatisfied patients prone to suing at the slightest snag in treatment. The CRC’s goal is continuous process improvement, which will ultimately reduce a practice’s liability risks.

As with HIPAA, taking a deep breath is in order when it comes to general property and casualty insurance - one of those nonclinical issues and another worry for the practice. As the owner of one of the building’s office condos, Robert Blanco has a general policy and requires his tenant physician to carry one as well. But does he have enough coverage?

Sutton points out what practices really need to accomplish with this type of policy: Protection from nonmedical suits. Making that distinction clear to your broker will keep premiums lower. For added peace of mind, an umbrella policy is another item to discuss with your agent. Such a policy covers claims that exceed the limits of your other liability policies; just be sure it’s coordinated with those other policies to avoid gaps.

Hidden threat

“If I had to pick one thing to really be worried about,” says Sutton, it’d be a practice’s employees. “If your goal is to hire somebody for a price, without consideration for anything else, more often than not that person is going to get you into trouble - not just for the medical issues, but also for the business issues.”

Cavale agrees that well-trained staff are critical. “All employees must be told that they are not permitted to express their opinions to patients or caregivers or anyone else that they have to deal with.” He counsels nonclinical staff to relay exactly the messages they’ve been given, nothing more, and to refer everything else back to the clinicians.

In addition, Sutton recommends routinely asking staff what could be done better or whether anything in the practice is troubling them. “If you’ve got a disgruntled employee, there’s nobody worse - they can torpedo you,” he says. To that end, “Be very mindful of trying to get some input from your staff on a regular basis.”

“As a healthcare provider, you’re regulated on so many levels; it’s an extremely complex environment. And on top of that you’re also a business owner,” says Sutton. “Try not to obsess over this stuff, exercise common sense, learn from honest mistakes, and don’t lose sleep over them.” The common thread is communication - with patients and staff, continuously, in writing where necessary, even when the other party isn’t immediately eager to engage in the conversation.

Laurie Hyland Robertson is a senior editor with Physicians Practice. She has been in the medical publishing field for 10 years, covering both clinical and management issues. She can be reached at LCHRobertson@physicianspractice.com.

This article originally appeared in the October 2007 issue of Physicians Practice.

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