By Jeanie Davis
You have done everything you can for the patient and his or her family, but suddenly find yourself named in a malpractice lawsuit. Or, a complaint is filed against you before the state board of nursing.
This can happen to even the best case managers, says David Griffiths, MBA, BS, P&C, senior vice president for the healthcare division of Aon Affinity, and a specialist in medical malpractice risk management.
“We live in a culture in which somebody has to pay,” explains Griffiths. “There is a common belief that every outcome is going be a positive outcome. When there is a negative outcome, the family will look to the legal system.”
A patient’s death is the number-one driver for a malpractice lawsuit, he says.
Griffiths’ efforts are geared toward helping case managers and other healthcare professionals avoid these professional liability claims. He also outlines measures to protect oneself in case there is a lawsuit or complaint:
• Use high-quality documentation. This is critically important, says Griffiths. “There’s the old adage that if it wasn’t documented, it wasn’t done. When we study malpractice cases or professional liability cases, we find this to be true.”
Quality documentation will help provide the evidence necessary to defend a nurse or other provider. “When there is no documentation, it becomes much harder to defend,” he says. “You must avoid the ‘he said, she said’ scenario.”
Also, the documentation must be easy to decipher. If not, the argument will be, “if this was sloppy, then patient care was sloppy,” says Griffiths.
• Excellent communication. There must be very good communication with the patient and family, says Griffiths, and it must be documented. If a discussion is not documented, the case manager is vulnerable to a lawsuit or complaint if something should go wrong.
Keeping a log of every discussion can be difficult, but it really is imperative, he notes. Otherwise, there will be court challenges over whether the communication occurred — and nothing to prove that it did.
• Beware compliance issues. The case manager must be meticulous about compliance with federal and state regulations. A colleague or employer can report any standard of conduct breaches to the state nursing board.
If the case manager is not following the hospital’s policies, then the employer could report him or her to the board. “The problem is, case managers need to be the patient’s advocate — which puts them in a precarious spot,” Griffiths says.
The case manager’s role as advocate for the patient may, at times, put him or her in a position that is contrary to the employer’s intentions and policy, he explains. For example, the case manager may recommend a certain medicine or path of care that cuts into the hospital’s revenue. The employer can report that case manager to the state board of nursing.
“It’s truly a difficult position for the case manager to be in because patient advocacy is the one key underlying mission in their standard of care,” Griffiths says. “There is that potential for inherent conflict between professional responsibility and the employer’s intentions.”
This conflict can occur when a case manager gets too personally involved in the patient’s case, he adds. “It’s best to clearly identify that the physician or the team is directing patient care, and the case manager is acting as a conduit for that information.”
Working as a team reduces the case manager’s exposure to liability, he explains. “It’s not the case manager pushing for a specific treatment, it’s the team. Of course, the case manager still must be the patient advocate, so there is a fine line that can arise.”
The opioid epidemic has set off a trend in lawsuits, says Griffiths. Claimants are citing that they were not informed adequately about the risk of addiction, and that alternatives to opioids should have been suggested.
Social media also has generated claims against healthcare practitioners. Posting a photo of the ER with an inappropriate message landed one physician in hot water with the state board. A nurse made a disparaging comment about a New York ER after a bad subway accident, and the comment was reported to the state board as unprofessional conduct.
“We’re dealing with a generation that’s grown up with a phone in their hands, so there’s this sense that an individual can take a photo and post it and get away with it,” Griffiths says. “That’s just not true.”
Meticulous documentation, education on compliance issues, and clear communication can help mitigate a case manager's risk of facing malpractice.
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