By Greg Freeman
EXECUTIVE SUMMARY
Three common problems can make medical malpractice allegations harder to handle. Knowing about them can provide an advantage.
- Preserve past policies and procedures.
- Provide as many deposition witnesses as needed.
- Manage third-party vendor record requests.
Medical malpractice allegations can set off a cascade of obligations and possible pitfalls, and it can seem like there is too much to handle all at once. Paying attention to three potential missteps can ease some of the burden.
One commonly overlooked issue is the preservation of past policies and procedures, says Jason B. Hendren, JD, partner with Hall Booth Smith in Rogers, AR. Policies and procedures are the low-hanging fruit in medical malpractice cases, but healthcare organizations sometimes underestimate the importance of documenting the policies and procedures at the time of the disputed care, not just what is currently in place.
In Hendren’s home state, the statute of limitations normally is two years for a medical malpractice claim, but for a minor younger than 9 years of age, a claim can be filed at least until the child turns 11.1 That means any relevant policy or procedure may have changed significantly since then.
“You could be talking years and years down the line, and facilities often do not maintain a good record of what their past policies were. You have to go back in and say, ‘Oh, well, let’s look at the policy on when to call the doctor or when to do this or that,’ and when was the last time it was amended or reviewed,” Hendren says. “It’s the risk managers who make sure that there is a good set of archived policies who can tell you when they started doing quantitative blood loss as opposed to estimated blood loss for postpartum bleeding, for example. That is a really big deal.”
A good historical archive set makes clear when a policy was originally implemented, all subsequent amendments, and dates. “I know that’s a hassle. And nobody ever looks at those things, anyway,” Hendren says. “But then you get into a lawsuit and it’s low-hanging fruit for plaintiffs’ lawyers because they will say, ‘Your policy says you’re supposed to do this, but you say that wasn’t a standard of care then.’ You need to make sure you can find those policies that were in place. You have to know they’re probably going to ask for the policies, so let’s make sure we’ve got a handle on what the policies were.”
Hendren often deals with cases involving birth trauma, so he emphasizes the need to preserve older labor and delivery policies. It is difficult to ask a risk manager what the standing orders in labor and delivery were that day 10 years ago and see a blank look in response, he says. Archiving those policies and procedures not only eliminates the need to scurry for an answer, but the archive often works in favor of the defendant.
Deposition May Require Many People
Another potential misstep involves depositions. In a Rule 30(b)(6) deposition, the organization is required to designate witnesses who will testify on behalf of it. The plaintiff may ask that someone be designated to talk about labor and delivery policies, for example, or labor and delivery nurse training and orientation.2
“They will list off all kinds of stuff that they want someone to talk about, and then whoever we designate has to go and talk about those things. Often, we’ll get 40 to 50 Rule 30(b)(6) requests and then we have to say, ‘OK, the director of nursing probably should handle one through four, and the person who’s in the lab will handle five through seven, and then the ER supervisor will handle eight through 10,’” Hendren says.
Assigning witnesses for these depositions must be handled carefully. Whoever talks about those topics is speaking for the defendant healthcare organization — and it is going to be stuck with what that person says. There can be a tendency to assign just one or a few people who “should” be familiar with everything that will be asked, Hendren says, when in fact they are not sufficiently versed in every important detail.
Hendren says he is not hesitant to list 30 witnesses for a Rule 30(b)(6) deposition if that is necessary to cover all the relevant material. That way, a witness can reply to a question by honestly stating that he or she is not the best person to answer and refer the attorney to someone else on the list.
The third potential misstep involves fulfilling records requests. Hospitals often use third-party vendors to copy medical charts when there are routine medical records requests, Hendren notes, and 90% of those requests are fulfilled without a problem. But when there is an adverse event, the healthcare organization should put the vendor on alert for an expected records request and how to properly comply.
“You better make sure that your HIM [health information management] department knows we’re probably going to get a request for these records, and we probably need to make sure that whoever the third-party vendor is, they are very clear on what documents need to go,” Hendren advises. “What will happen often is there will be an event, and within a day or two or a week, there will be a request for records. A HIM, usually through a third-party vendor, just says, ‘Yeah, here you go,’ and send them whatever.”
Often, that chart is incomplete because the physicians have not had a chance to sign off on it, or the patient was transferred to another facility and some records went along, and it took a while to get the photocopies back into the original chart.
“Then, you have a big problem because now we’ve got a second set of records when the lawsuit is filed,” Hendren says. “A couple of years go by, and they ask me for a full copy of the chart, and then say there are 20 pages that weren’t in that first thing that we got from the hospital. I have to say, ‘Well, technically, you didn’t get it from the hospital. You got it from a third party that the hospital contracts with.’”
The vendor may not have known that there was more going to the chart, Hendren says, and so they just provided the requested record. That is why it is important for risk management to coordinate carefully with HIM. That case record should be flagged so that if a record request comes in, risk management can work to ensure that the released records are complete.
“We don’t want to piecemeal this thing. Sometimes, that takes some careful treading, because sometimes the patient or their family is really, really upset within a day or two, and they’re demanding the records right now,” Hendren says. “You have to be able to say, ‘We want to make sure we get you a full complaint set. That may take a few more days, and we’re on it.’ That often is where I see there’s a screw-up in that regard.”
When HIM hands over the records without alerting risk management, the patient may still be upset when learning the original record was incomplete, Hendren says. “To the extent that you can prevent misunderstanding and miscommunication errors on the front end, that sometimes will keep the patient or their families from getting even more upset than they were,” he says.
Of course, a key component of this tactic is the risk manager knowing that an adverse event occurred. Hendren teaches a semester at a nursing school, and in one lecture he shows a picture of a risk manager. He notes how tired the risk manager looks and explains that it is because she got notice of a lawsuit for an event that happened two years ago.
“One of the reasons that they get tired is because they will get a complaint two years down the road about Mr. Johnson catching fire in the operating room. If that’s the first time that we’ve heard about Mr. Johnson catching on fire in the operating room, we’re going to be in very bad moods,” Hendren tells the nurses. “If we knew it happened, the risk manager could know we’re probably going to get a medical records request, we’re probably going to get a litigation hold, so let’s go ahead and make sure that we’ve got all this ironed out and pinned down and in a safe place.”
REFERENCES
- Medical Malpractice Help. Arkansas medical malpractice laws. 2023.
- Wang JC, Lambrinos D, Murphy ML. Speak for yourself: The 30(b)(6) deposition. American Bar Association. Sept. 19, 2019.
SOURCE
- Jason B. Hendren, JD, Partner, Hall Booth Smith, Rogers, AR. Email: [email protected].
Medical malpractice allegations can set off a cascade of obligations and possible pitfalls, and it can seem like there is too much to handle all at once. Paying attention to three potential missteps can ease some of the burden.
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