When healthcare professionals know what medications and supplements their patients are taking, this helps protect against certain patient safety risks and forms of clinician liability. Lately, however, changes in how some patients access care are making confidence in this area harder to come by. By revisiting practice workflows to implement more strategic habits of communication and documentation, clinicians can promote positive outcomes and mitigate practice liability risks.
Online interactions and prescriptions
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The advent of the pandemic and the evolving response by the healthcare community have significantly impacted the way medicine is currently being delivered in the United States. Telemedicine visits with clinicians and other electronic methods of communication have gained widespread acceptance and implementation. Early on, CMS and private third-party payers increased reimbursement models, and state licensing laws in many jurisdictions were relaxed to facilitate access to treatment. Online interactions have flourished, especially the ordering and transmittal of prescription medications. Taken together, these changes have eased patient access to certain kinds of care—but they also mean that practitioners frequently question whether they may be held vicariously liable for the mistakes of other clinicians with whom they are not otherwise legally affiliated.
Key legal terminology
Understanding the terminology involved in a medical malpractice case enables a more complete appreciation of the litigation process—as well as, perhaps, an increased appreciation for steps to avoid becoming embroiled in it. A “claim” is generally defined in healthcare liability policies as a demand for the payment of monetary damages incurred because of a professional services incident. To prevail in a negligence lawsuit, an aggrieved patient must generally establish four elements by competent admissible evidence:
(1) A physician-patient relationship existed during the period in question, thereby creating a legal obligation to render care consistent with the community standard
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(2) A breach of that duty
(3) A causal relationship between the negligent conduct and the alleged injury
(4) Compensable damages recognized by the jurisdiction
To determine whether the treatment in issue was appropriate, counsel representing their respective clients inevitably retain independent experts to opine on the treatment in issue based upon their education, training, experience, and often a review of the medical literature. The causal link is defined variously, depending upon the state where the matter is being tried or arbitrated. Traditionally, the common law required the patient to establish that the improper care caused the injury to a reasonable medical probability. A substantial minority of jurisdictions have lowered that bar in recent years to permit recovery of damages if the patient can demonstrate that the physician’s failure to comport with the required degree of competence, either by omission or commission, deprived the individual of a better outcome. Civil damages routinely fall into two categories:
- General damages involving pain, suffering, loss of the enjoyment of life, and related disabilities.
- Economic damages, such as out-of-pocket expenses or decreased earnings or earning capacity.
Culpability for injury
Clinicians may be found culpable even if they did not directly deliver the treatment that produced the injury. This is because individuals may be held vicariously liable for the conduct of a third party under certain limited circumstances. For example, an employer may be liable for the negligence of an employee. In that situation, the principal may be held to answer for the monetary damages incurred by the patient. Similarly, managers, partners, or owners may be sued individually for the negligent hiring, retention, or supervision of the person harming the plaintiff.
Applying these concepts to the healthcare community, it is apparent that with the rapid development of telehealth, in conjunction with the virtually unlimited uses of the internet and electronic communication, risks to practitioners have substantially expanded. The increased danger is particularly evident where patients acquire prescription medications online without the knowledge or approval of their primary care provider. The medication may be contraindicated, given the individual’s comorbidities or other prescriptions being taken. The patient may not have gotten proper guidance on the use, alternatives, possible side effects, and adverse reactions. When something untoward occurs and medical care is sought, the provider will likely not have a record of the drug in the chart. And even worse, treatment options are complicated if the individual fails to identify the medication at the outset of the visit. Ordinarily, a clinician will probably not be held civilly liable in that situation if the advice, treatment, or medication was given by the other provider, and assuming that the primary care practitioner and the other individual are not in any type of business partnership or referring relationship.
Communication habits for medication reconciliation
Still, with the expansion of readily available online medical services and access to prescription drugs, healthcare professionals need to be proactive to help ensure continuity of care and optimum clinical outcomes while avoiding the many pitfalls that can arise where critical data is available but not collected in a timely fashion.
Consider implementing the following recommendations into practice workflows:
- At the outset of every visit, the medical assistant should ask if the patient has had a change in medical status or is taking a new or different drug—including over-the-counter, allopathic, or homeopathic remedies—since the last visit. Specifically document this in the progress notes.
- Clinicians are not expected to be clairvoyant, which is why practices should consider implementing clear administrative processes to promote better routine clinical operations. Consider conducting an audit of routine workflows to determine where medication-related information could be falling through the cracks.
- Include in the conditions of treatment and the clinician-patient agreement for the practice that patients will, as part of their affirmative responsibility, notify the office at every visit of new or additional information.
- Place a similar statement on the practice’s website.
Following this simple guidance may help to decrease the likelihood of your patient suing you for an adverse event. Increasing the clarity of the practice’s communications and of practitioner-patient communication will also further enhance the patient experience and satisfaction.
Rich Cahill is currently Vice President and Associate General Counsel with The Doctors Company and provides legal support to the Claims and Patient Safety Departments, oversees company appellate litigation, and also lectures frequently on topics related to health care.
Mr. Cahill received his undergraduate degree (summa cum laude) from UCLA in 1975 and his Juris Doctorate from Notre Dame Law School. He served as a deputy district attorney in California at the outset of his career and was subsequently appointed as counsel on the Central Legal Staff of the Nevada Supreme Court before entering private practice in California.
Mr. Cahill has specialized in various facets of health care litigation for 39 years, including the defense of hospital and physician professional liability claims, managed care contract disputes, network privileges issues and related business torts. He has completed in excess of 185 trials and binding arbitrations with a combined win-rate of 92%. He has a preeminent rating with Martindale-Hubbell, the premiere peer-reviewed attorney rating service in the United States.
