Attorneys see risk managers gaining prominence
The reputation of healthcare risk managers is on the rise, according to attorneys consulted by Healthcare Risk Management.
For years, the department of risk management was looked upon with disfavor by physicians and given little thought by hospital administration or others, notes George B. Breen, JD, an attorney with the law firm of Epstein Becker Green in New York City. He is in the firm’s health care and life sciences and litigation practice area and chair of the firm’s National Health Care and Life Sciences Practice Steering Committee.
Frequently located in basement offices, risk managers were regarded by physicians as adversaries looking to attack when errors were found, he says. Administrators often used risk management as a place to send disgruntled patients or family members for service recovery and damage control. Reactionary risk assessment by a non-physician to an unanticipated clinical outcome drew the ire and distrust of the medical staff, he says.
As medical malpractice filings increased, physicians feared discipline and backlash and rebuffed interaction with a risk manager, adds Mollie K. O’Brien, JD, an attorney with Epstein Becker Green in Newark, NJ, in the firm’s health care and life sciences practice.
Defense attorneys counseled physician clients not to work cooperatively with risk managers because anything they said could, and would, be discoverable and used against them in a liability suit, the attorneys explain
"Where physicians may have been willing, and programmed, to participate in a protected peer-to-peer discussion about outcomes and potential for improvement, cynicism abounded regarding the risk manager’s willingness, or ability, to provide meaningful guidance or protection from reprimand or disclosure," Breen says. "As a result, data collection for medical misadventures was spotty, self-reporting of errors or near misses was nearly nil, and risk managers were at odds with their own medical community. A proactive risk approach was practically impossible."
That began to change in the 1990s when a national discussion evolved regarding patient safety, they say. That dialogue began a slow but steady alignment of the Department of Risk Management with the Department of Quality Improvement.
"News headlines proclaimed any number of preventable medical errors. Public outcry demanded transparency from clinicians. A necessary colloquy on proactive risk assessment came next," O’Brien says. "State laws requiring disclosure of medical errors by physicians and hospitals followed immediately. Those laws promised to protect physicians from liability for disclosure in the name of a safer practice environment and better patient outcomes but physicians remained understandably cynical."
Slowly, this change in the landscape shifted the perception of the risk manager’s role within the hospital and illuminated the need for a partner who understood where risk lurked and how it could be mitigated, they say. Risk managers had to become educators on the law, delegates of the legal department to comply with reporting requirements, who had to induce physicians to discuss errors and potential for improvement, the attorneys recall. Risk managers evolved into a necessary and important part of the team.
"In 2013, the risk manager’s role as an essential member of the hospital team is confirmed," Breen says. "The implementation of the Patient Protection and Affordable Care Act, and its mandate that quality of care and acceptable outcomes will determine reimbursement, has made investment in risk management and ERM [enterprise risk management] programs a priority. Government enforcers are increasingly examining quality and medical necessity under the False Claims Act rubric, connecting a hospital’s financial survival to its risk management program."
- George B. Breen, JD, Epstein Becker Green, New York City. Telephone: (202) 861-1823. Email: [email protected].
- Mollie K. O’Brien, JD, Epstein Becker Green, Newark, NJ. Telephone: (973) 642-1900. Email: [email protected].
