Chapter 10: Strategies to Reduce Liability

1. Chapter 10: Strategies to Reduce Liability

2. Managing Physicians • Facilities may have liability when a physician is involved in malpractice • Respondeat superior • Ostensible agency • Corporate negligence

3. Professional Practice Acts • Regulatory boards • Created by State legislation • Statute defines the scope of professional practice and specifies: • Composition of the board • Duties and powers to create rules for the professional practice • Licensure process • Continuing education requirements • Investigation and disciplinary actions

4. Professional Discipline • Regulatory Board will: • Investigate suspected misconduct • Prosecute confirmed misconduct, as appropriate • Take appropriate disciplinary action for confirmed misconduct • License revocation • License suspension • Fines • Referrals for professional assistance

5. Examples of Misconduct • Repeated acts of negligence • Incompetence • Aiding or abetting the unlicensed practice of medicine • Failure to comply with government rules/regulations • Exploitation of the patient for financial gain • Evidence of moral unfitness to practice medicine

6. Examples of Misconduct • Failure to maintain appropriate medical records • Abandoning or neglecting a patient • Harassing, abusing, or intimidating a patients • Ordering excessive tests or treatments • Unlawful use of controlled substances

7. Physical impairment of professionals • Health problems, disease, disability, psychiatric issues, and alcohol/chemical abuse • Symptoms of impairment • Making rounds late --complaints from staff • Inappropriate orders -- frequent accidents • Hostile behavior -- mood swings • Personal hygiene -- job changes • Neglected social commitments

8. Sexual Harassment • Providers are in the unique position of power • Patient is dependent on the provider

9. Identifying Previous Misconduct • Licensing boards share information concerning adverse actions against providers across state lines • The Federation of State Medical Boards • National Practitioner Data Bank • Risk Managers should ensure that the facility hiring and credentialing policies include a procedure for checking the data banks

10. National Practitioner Data Bank • Designed to collect comprehensive data on adverse actions taken against health care practitioners, malpractice payments made and Medicare/Medicaid exclusions. • Insurance companies and hospitals are required to report to DHHS and state licensing boards any medical malpractice payments resulting from court judgments or settlements • Facilities are required to check the NPDB for all new medical staff and every two years for re-credentialing

11. National Practitioner Data Bank • 4 classes of adverse actions requiring reporting • Those taken against a practitioner’s license by a state medical board • Those taken against a practitioner’s clinical privileges at a health care facility • Those taken against membership by a professional society • Those taken by Medicare/Medicaid and the DEA

12. Clinical Practice Guidelines • Systematically developed statements to assist practitioners and patient decisions about appropriate health care for specific clinical circumstances. • Private Initiatives • Government Initiatives • Worker’s Compensation • Medical Liability Insurers • Risk managers must not only be aware of clinical practice guidelines, but also the legal implications of ignoring them

13. Peer Review • Health professionals reviewing other like health professionals to assess: • Quality concerns • Hospital privileging decisions • Group practice membership decisions • Staff conduct • Professional isolation • Education

14. Liability Alternatives • Limit number of lawsuits • Control size of awards • Limit access of plaintiffs to the system

15. Removal of Malpractice Litigation from Judicial System • Several tort reform proposals recommend shifting malpractice litigation away from the judicial system • Administrative Agencies • Alternative Dispute Resolution

16. No-Fault Proposals • Under this type of system, adverse outcomes would be automatically compensated without lawsuits regardless of whether the outcomes resulted from negligence. • Accelerated Compensation Events • Enterprise liability • Other methods

17. Summary • Risk Managers must work with the healthcare professionals in terms of practice guidelines and peer review. • Proactive liability reduction can offer significant protection of the organization’s financial resources.