Clear, complete communication helps CMs safely navigate legal minefields
Experts urge: Don’t forget to document, document, document
The federal government condemned health maintenance organizations (HMOs) and other health plans last December for attempting to limit what physicians tell Medicare patients about treatment options.
A group of Florida dermatologists and Medicare beneficiaries filed suit at the end of last year against that state’s Medicare carrier, the Health Care Financing Administration (HCFA), and the U.S. Department of Health and Human Services (HHS) over a coverage policy that restricts how physicians treat beneficiaries suffering from nonmalignant skin lesions.
Neither action directly involves case managers. Yet, both should serve as a wake-up call for case managers that many activities common to the coordination of care across the continuum place them at increased risk of being named as defendants in lawsuits in this growing climate of consumer frustration with the health care system.
Case managers are not immune from legal action, say experts interviewed by Case Management Advisor. You may not have read about them in recent issues of legal or nursing journals, but lawsuits against case managers are on the rise. These cases don’t receive widespread attention because they are often settled out of court. However, as plaintiff’s attorneys throw their nets wider in search of large settlements, case managers often are included as defendants in legal actions brought by patients.
The good news is that these cases have common themes, and by taking a few proactive measures, case managers can greatly reduce their liability, says Lavonya K. Chapman, RN, JD, who works as a case manager defense consultant, attorney, and case manager in Birmingham, AL. "I think one reason the case manager often remains as a defendant is that after a period of initial contact, the case manager works in the background and no longer has direct contact with the patient. It’s simply easier to sue someone you don’t see on a regular basis," notes Chapman.
In sifting through recent legal actions against case managers, Chapman says the majority of cases boil down to the following two issues:
• Patient misunderstands case manager’s role.
"The patient often does not understand the case manager’s role in his or her care," says Chapman. "In many cases, this leads to unrealistic expectations of that role. In addition, many patients still see nurses as clinicians who deliver hands-on care; case managers usually don’t deliver hands-on care, and patients should have this explained to them."
• Case manager misunderstands assignment.
"Not only does the patient not always understand the case manager’s role, but the case manager often does not understand his or her role," notes Chapman. "This is especially true if there is more than one case manager working with a patient over the course of treatment; for example, a rehabilitation case manager, a payer case manager, and a home care case manager."
Talk to payers
To avoid a misunderstanding, case managers should discuss their role with the payer source or with their employers if they work for a health plan. "Make sure you understand just what the payer expects you to do," she recommends.
William A. Dombi, JD, director of the Center for Healthcare Law and vice president for law at the National Association for Home Care in Washington, DC, agrees. "Case managers must first decide in their own minds to whom they owe their duty. If the case manager is in effect a utilization reviewer at a managed care plan, the case manager probably has no duty to the patient. However, if the case manager’s role is to help consumers make decisions about their care, there is an argument that the case manager is an advocate for the patient and has a fiduciary duty to the patient," he explains. "If the case manager in that role provides less than full information, there are issues of antitrust and unfair trade that may arise."
Both issues deal with communication, and the only way to protect yourself in a lawsuit is to document everything, says Chapman. "It can be two or three years after you’ve last had contact with a patient before a lawsuit is filed. The only way to refresh your memory is the paper trail," stresses Chapman. "What you’ve documented and what others involved have documented are all that remain."
Here are a few tips our experts say should help case managers defend themselves if they are named as defendants in a lawsuit:
• Clearly communicate your duties to the patient.
"I’ve mentioned this before, but it is very important that the case manager explains his or her role to the patient," stresses Chapman. "Be sure that you explain the full scope and limitations of what you will do for the patient. Never overstate the scope of the services either you, or your organization, will provide for the patient," she says, adding, "If your organization has a full range of services it offers members, don’t just send the patient your brochure with these services listed. Make it clear which of all the available services you will be providing for the patient in question and why. Then document that you explained those services to the patient."
"Never oversell yourself," cautions Dombi. "It’s when case managers set unrealistic expectations about what they can really offer the patient that problems arise," he notes.
• Document.
"You can never take too many notes. Write down everything you discuss with the patient. Remember, as the case manager you can educate, inform, and recommend, but you can’t make a patient comply with a recommended plan of care. Your best defense is to document every contact. Also, document concerns you have about the patient or his or her behavior. For example, if you think the patient is making a poor choice, document it," says Chapman. "You cannot always persuade a patient to do what is in his or her best interest, but you can document that you discussed your concerns with the patient," she explains.
Ask patients to respond
"There are patients who make poor lifestyle or treatment choices," agrees Cynthia E. Whitaker, RN, BSN, CCM, president of RNS Health Care Consultants, a case management company in Sacramento, CA, and president-elect of the Case Management Society of America in Little Rock, AR. "Patients have a legal right to do what they want, but if a patient made a particularly detrimental choice, I might tell the patient that I would be unable to continue working with him or her if the patient persisted in this course of action," she adds.
"We would definitely write a letter to the patient documenting our concerns about the patient’s actions, and if it was serious enough, ask the patient to sign a copy of the letter and send it back to us, to establish that the letter had been received and read," Whitaker says.
• Send a letter to the appropriate parties.
"In addition to your own notes, it is useful to send patients a letter confirming specific points that you’ve covered with them," notes Chapman. "Depending on the case, there will be other parties you should send copies of this letter to," she adds. "For example, you might send a copy to the insurance adjuster; payer case manager, if that is someone other than yourself; the patient’s attorney, if there is one; and the patient’s physician."
Just the facts
In addition, Chapman suggests that case managers always include the facts and rationale for any decisions or recommendations they make about a patient’s care. "Case managers should not state opinions or draw conclusions in writing about the underlying motivations for a patient’s noncompliance or slow compliance. Let someone else, the patient’s physician or the insurance adjuster, draw inferences. Case managers should provide the appropriate parties with the facts and the reasoning behind each recommendation. Opinions may appear biased and come back to haunt you later in a courtroom."
"Reports put out at this company must always include the rationale behind all recommendations," notes Whitaker. "The rationale behind the recommendation is an important part of any report. Without the rationale, your client doesn’t have the benefit of your expertise, and that is what the client is paying for," argues Whitaker. "Case managers are also educators. Including the rationale for your recommendations is part of the education process," she adds.
• Educate and inform.
"There may be relevant areas of patient care or services that you think a patient may benefit from that your organization, or the patient’s health plan benefits, is not authorized to provide by the payer source," notes Chapman. The case manager should discuss these issues with the patient and recommend some alternative community resources for these services, suggests Chapman.
"Then, of course, document that you covered those areas with the patient. Just because you cannot provide a service for example, a nutritional evaluation or nutrition supplements for an AIDS or cancer patient doesn’t mean that you will not be held responsible if the patient later develops nutrition-related health issues. It’s better to cover all aspects of care both present and future, even briefly, and document that these issues were covered, than to skip mentioning them because the payer source has not authorized you to provide those services."
Failure to inform results in lawsuit
Failure to thoroughly inform did indeed lead to a recent lawsuit against a case manager in California, notes Whitaker. "The case manager failed to do a thorough assessment of all the patient’s care needs, because, as she later stated in court, she didn’t feel it was necessary as not everything the patient needed was covered under his health plan benefits," she explains. "The lesson to be learned is that just because the patient’s care needs may not be covered by the payer source, the case manager is not excused from assessing those needs and referring the patient to other community resources to meet those needs," cautions Whitaker.
• Avoid idealistic standards of care.
"Case managers like to write standards of care and critical pathways," notes Chapman. "The problem is that if the standards you write are too idealistic, they may place an impossible burden on a case manager to achieve them. The case manager may be asked in court to prove she didn’t breach her organization’s standard of care. If the standard is too idealistic, if it represents the best case scenario rather than the minimum acceptable care, then this may be impossible."
Any standard of care or organization policy or procedure that you put in writing can be brought into court and held against you, just as case managers can expect to be held to the published standards of practice developed by the Case Management Society of America (CMSA), notes Chapman. "When case managers develop standards of care, they should make sure those standards represent the safe minimum level, and once they are developed, the standards should be followed precisely in all cases," she says.
"I would certainly bring the CMSA practice standards into the courtroom, if I was on the prosecuting side in a suit against a case manager," adds Dombi. "I would also bring in national and local licensing standards," he says. For example, if a case manager who holds the certified case manager (CCM) accreditation from the Commission for Case Manager Certification in Rolling Meadows, IL, failed or neglected to adequately perform activity X, and activity X is a standard activity that is routinely covered on the CCM examination, the prosecution could argue that the case manager failed in his or her professional duty, explains Dombi.
When in doubt, check CMSA standards
In general, local community standards are most relevant. What is common practice for case managers in Alabama may not be the standard for case managers in Massachusetts, notes Dombi. "However, where there is no clear community standard, national standards are applied," he adds.
"The CMSA standards are certainly turning up in court," says Whitaker. "If a case manager has any questions about any decision they are about to make, they should refer to the CMSA standards. All CMSA members get a copy with their membership. Case managers should be sure to read the standards thoroughly and follow them," urges Whitaker.
Chapman urges case managers to take steps now to protect themselves against future legal actions. "There are cases being filed against case managers that you’re not hearing about," she notes. "Many are being settled out of court, and unless you know the case manager or the attorneys involved, you never read about them. There is a lawyer in Alabama who came home and told his case manager wife that he had just attended a law seminar on how to sue nurse case managers. As long as there are insurance carriers paying case managers’ malpractice insurance, there is another deep pocket with money to recover, and cases will be brought," she warns.
[For more information about CMSA and its case management standards of practice, contact: CMSA, 8201 Cantrell Road, Suite 230, Little Rock, AR 72227. Telephone: (501) 225-2229. For more information about the CCM, contact: CCMC, 1835 Rohlwing Road, Suite D, Rolling Meadows, IL 60008. Telephone: (847) 818-0292.]
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