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Q: How should I document peer review discussions of sensitive case reviews?

A:

Peer review documentation should be limited to objective statements of the facts, such as complication rates, patient complaints, and clinical facts related to the case under review. Peer review materials must support any disciplinary action (or inaction) by the peer review committee, should the committee's decisions be challenged. The identity of an individual involved in a case under review should be revealed only to those committee members actively involved in the clinical assessment of the care provided.

Materials that include information about a case to be reviewed by the peer review committee should have the physician and patient identifiers removed. Peer review minutes should

  1. employ case numbers instead of using physician names,
  2. be distributed only to committee members during meetings, and
  3. be collected and (copies) destroyed when the meeting ends.

If you have concerns about the objectivity of physician reviewers or difficulty in assessing a physician's performance, consider obtaining an outside consultant for the review.

Q: How should I respond to an attorney who requests (only) medical information?

A:

Upon receipt of a patient's written authorization, you must honor a request for medical information. Send a complete copy of the patient's record, or copies of specifically requested items in the record (not a summary or letter) to the requesting attorney. A reasonable copying fee may be charged. If you suspect that the request may be followed by a claim for malpractice, your institutional risk manager (who, for CRICO-insureds, will report the request to CRICO/RMF) should be notified. If the request for records appears to be tied to an automobile accident or workers' compensation case, such notification to CRICO/RMF is not ordinarily required.

Q: What happens if I ignore a "Summons and Complaint"?

A:

Failure to promptly notify and forward a copy of the Summons and Complaint to your professional liability insurer may result in denial of coverage. (The CRICO policy includes such a clause.) The defendant has only 20 days from the date of receipt to file the appropriate response. Upon notification to the institutional risk manager and professional liability insurance representative, a lawyer will be assigned to respond on behalf of the named insured. Failure to answer a complaint can, also, result in the court ordering a judgment against the defaulting defendant, and awarding damages.

Q: What should I do when I get a subpoena for my office records?

A:

Do not ignore it.

Some response is necessary by the date specified. A patient's record can be released if you have written authorization from that patient. The laws governing hospitals provide some guidance for medical group practices and individual providers in the office setting. For example, under Massachusetts law, a hospital or clinic served with a subpoena for medical records may release those records if:

  1. the subpoena is for the records of a party named in the proceeding, as shown by the case caption on the subpoena, and
  2. the records do not contain otherwise privileged information.

Both federal and state restrictions may come into play if the record contains "sensitive information" such as that concerning sexually transmitted disease; drug or alcohol abuse; and communication between the patient and psychotherapists, psychologists, and social workers. This list is not exhaustive and, in general, protection should be provided to any sensitive information that may cause a patient embarrassment or serious loss, such as a job or child custody. If the patient authorizes the release of the sensitive information, comply with the subpoena. Without such authorization, redact (take out) the protected information prior to releasing the record, and object to release of omitted portions, citing the legal basis for withholding the information.

If you do not have the patient's authorization, and conditions 1 and 2 (above) are not met, then object to its release to the party issuing the subpoena. That party then has the option of seeking a court order to obtain the records. When in doubt, call your risk manager or legal counsel for advice.

Q: Do depositions matter if I'm not named as a defendant?

A:

Yes.

A deposition is a formal process for both parties to collect pertinent information about the event(s) giving rise to a lawsuit (or criminal proceeding). During a deposition, the lawyer for one side orally questions a witness on the opposing side. Even though you may not be a party to the lawsuit at the time your deposition is requested, you may be added as a defendant after your deposition.

In addition to the defendants named in a malpractice lawsuit, others called to deposition can be fact witnesses, such as subsequent treating clinicians or experts. Your testimony also has the potential to alter the course of the case as a whole. Some plaintiff's attorneys delay naming certain parties as defendants in the hope that they will voluntarily consent to a deposition. Health care providers who testify at a deposition must consider their potential involvement as defendants.

Q: What should I do if I am deposed?

A:

If you are a CRICO-insured clinician who has been notified to appear for deposition, contact your sponsoring institution's risk manager or CRICO's Claim Department (617.495.5100) for assistance, guidance, and (if necessary) legal representation. If you have offered to be an expert on behalf of a CRICO-insured defendant, CRICO will arrange for legal representation on your behalf.

Your attorney has only 10 days to file a Notice of Objection to a deposition subpoena. Avoid discussing the case or the deposition with colleagues, as such discussions are not protected from legal discovery. Conversations with your spouse, risk manager, insurance company representative, and attorney are protected.

Q: How should I respond to a written complaint from a patient or a patient's family?

A:

Directly, or through a patient representative, acknowledge the complaint and let the writer know you will treat it as an opportunity to uncover and solve the problem. Not every complainant will be mollified by a pleasant response, but prompt and thorough attention to a mild complaint can go far toward avoiding an escalation of emotions. If ignored, even minor complaints can become the foundation for a lawsuit.

  • Investigate the situation fully, read the records, and speak with other providers involved. Communicate findings in a sympathetic but tactful way. If appropriate, apologize for how the patent feels, without admitting liability.
  • Address misperceptions and inaccuracies expressed in the letter by summarizing the events as you know them.
  • Be careful to maintain confidentiality when the response is communicated to someone other than the patient.
  • Determine if anything should be done re: the patient's bill.
  • Follow phone calls with a written response for the record
  • Provide a copy of any pertinent correspondence to your institution's patient complaints committee or department. 

Q: Should I talk to the attorney representing a patient who has filed a claim against me?

A:

No.

Do not respond either orally or in writing to a lawyer representing a prior patient in a claim or potential claim. Any contact by the plaintiff and/or attorney regarding the case should be immediately referred to the institutional risk manager, the insurance company claim representative, or defense counsel. However, you must forward a copy of the patient's medical record when presented with proper authorization.

If the person filing the claim is still under your care, referring that patient to another physician may be the most comfortable solution for both parties. However, a physician who had a good patient relationship prior to the claim may actually benefit by maintaining that relationship. Under those circumstances, however, discussion of the unresolved claim should be avoided.

Q: Should I continue to treat a patient after an attorney has requested his or her medical records?

A:

If a person filing the claim is still under your care, referring that patient to another physician may be the most comfortable solution for both parties. However, a physician who had a good patient relationship prior to the claim may actually benefit by maintaining that relationship. Under those circumstances, however, discussion of the unresolved claim should be avoided.

Q: What should I say to a patient who is suing me?

A:

Do not respond either orally or in writing to a lawyer representing a prior patient in a claim or potential claim. Any contact by the plaintiff and/or attorney regarding the case should be immediately referred to the institutional risk manager, the insurance company claim representative, or defense counsel. However, you must forward a copy of the patient's medical record when presented with proper authorization.

If the person filing the claim is still under your care, referring that patient to another physician may be the most comfortable solution for both parties. However, a physician who had a good patient relationship prior to the claim may actually benefit by maintaining that relationship. Under those circumstances, however, discussion of the unresolved claim should be avoided.

Q: Who can I talk to about a malpractice claim against me without it being discoverable?

A:

Conversations with your spouse, personal physician, psychotherapist, clergyman, attorney, risk manager, and liability insurance company representative are protected. Discussions within the official peer review process are also exempted from discovery by the plaintiff.

Conversations about the case with colleagues outside the peer review process are discoverable by the plaintiff; those colleagues could be subject to deposition and could later be called to testify based on those conversations.

Q: What is the (Massachusetts) statute of limitations for medical malpractice suits?

A:

The statute of limitations in Massachusetts is generally three years from the date the individual becomes aware (or should have become aware) of the alleged act of malpractice. The statute has been modified so that there is an absolute limit of seven years in which a plaintiff may bring suit for occurrences after November 1, 1986. The seven-year time limit begins on the date of the event on which the claim is based, with the following exceptions:

  • For retained foreign objects, the three-year time limit starts to run when the object is detected.
  • Minors between the ages of two and six (at the date of the alleged malpractice) have until their ninth birthday to bring the action. For minors under age two on the date the alleged malpractice occurred, the seven-year limit runs out before their ninth birthday. 

Q: How should I respond to a complaint notification from the BoRM?

A:

Under its regulations, the Board of Registration in Medicine must conduct a preliminary investigation of anonymous and identified complaints, to allow the Complaint Committee to determine whether the complaint appears frivolous, or to proceed with further investigation. A complaint notification from the BRM must be responded to within the time period stated.

Most professional liability insurance policies do not specifically cover legal representation of their insureds before administrative agencies, such as the BRM. However, in some circumstances a complaint to the BRM may coexist with a malpractice allegation. CRICO-insureds should contact their institutional risk management representative regarding the filing of a potential claim in this type of matter so that appropriate guidance can be provided. Upon notification, CRICO/RMF reviews each situation on a case-by-case basis to determine whether a CRICO defense attorney should be assigned.

Q: Are residents, fellows, and medical students exempt from malpractice claims?

A:

No.

Residents (house officers), fellows, and medical students can be named alone or with other providers in a medical malpractice case. They can also have their name reported to the National Practitioner Data Bank if payment is ultimately made on their behalf.

The procedural rules that govern civil actions require the naming of appropriate individuals to avoid dismissal of the lawsuit by the court. The selection of individuals named as defendants is made by the party bringing the lawsuit (the plaintiff). The law does not limit the number of defendants who can be named, as long as they are considered a "necessary" party to the case. If the plaintiff can show that a resident, fellow, or medical student is a necessary party, that individual will remain in the lawsuit. Defendants may also be added or dropped during the course of the suit as additional information is developed.

Q: Do practice guidelines help or hurt the defense of a malpractice claim?

A:

The legal ramifications of practice guidelines—developed for the evaluation and improvement of patient care—is mostly unknown. They have the potential to be either beneficial or damaging if you are involved in an adverse medical event. Most guidelines outline general practice, so how they are interpreted in specific situations will determine how they are applied in legal matters.

Individuals considering malpractice claims can use practice guidelines to inform their decisions. Guidelines that were followed may serve to discourage meritless claims at the outset, preventing litigation. However, guidelines may also prompt claims if the care provided does not appear to be consistent with published practice guidelines. Guidelines can also have a mixed role once a malpractice lawsuit has been filed. When brought up by either side's expert, guidelines have been generally accepted by courts as evidence. They may serve as a "snapshot" of the standard of care at the time of an event, especially if the standard has changed significantly in the interim. However, guidelines can be damaging if you did not comply with them and did not record the medical rationale for the treatments chosen. Documentation of rationale and best judgments made is more important than ever.

Practice guidelines may hinder defense of a malpractice case by appearing to be definitive in areas with no genuine medical consensus, or exhaustive when in fact they implicitly allow for physician discretion. Fortunately, at this point, appropriately developed guidelines are much more likely to help improve and evaluate patient care than to come up in a malpractice claim.

Q: What is the difference between a malpractice claim and a malpractice suit?

A:

A formal claim is an actual demand for compensation made by a claimant (the patient, or a representative) who indicates an intent to pursue the demand. Such notice may be made orally, or by letter. A claim may arise anytime, even several years after the medical incident(s) on which it is based. (See related FAQ re: Statute of Limitations)

After being made, claims can be:

  • Dropped by the claimant
  • Denied by CRICO, and not pursued by the claimant
  • Denied by CRICO, and pursued by the claimant as a suit
  • Settled by CRICO with payment

Filing of a lawsuit (Summons and Complaint) can either follow from a claim or simply serve as the first notification of a malpractice allegation. Receipt of suit papers requires an official response by the clinicians named in those legal documents.

Suits can be:

  • Dropped by the plaintiff at any time
  • Dismissed by the court
  • Settled before or during trial
  • Closed by a jury verdict

Q: What is the tribunal?

A:

The tribunal process is a screening mechanism adopted by Massachusetts and several other states with the aim of reducing and/or eliminating frivolous lawsuits alleging medical malpractice. A tribunal finding in favor of the defendant(s) does not necessarily end the case. In this state, plaintiffs (or their attorneys) can post a $6,000 bond (the amount can be lowered by the court) in order to proceed with the lawsuit.

The tribunal comprises a health care provider of the same type as the defendant, a lawyer, and a judge. The purpose of the tribunal is not to decide fault or weigh the credibility of evidence, but only to determine whether the plaintiff has presented sufficient evidence to raise at least one issue for further review by the court system. The plaintiff's evidence at the tribunal is called the "offer of proof," and ordinarily contains a letter from a medical expert offering an opinion favorable to the plaintiff's claim.

Although Massachusetts does not allow the defense to present evidence, it does not preclude arguments which highlight or expose weaknesses in the plaintiff's case. Usually the tribunal is held fairly early in the "life cycle" of a lawsuit. Because the results are not binding, the value of tribunals in Massachusetts is, primarily, limited to discouraging only claims so frivolous that no expert testimony is available.


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