- Don't dole out healthcare advice to patients (it's against the law).
- Do forward all patient complaints to doctors or other licensed professionals in a clear manner.
- Do follow a script of what to say when patients call with complaints or symptoms.
Could your front desk staff be a medical malpractice risk? They can be if they're dispensing medical advice to patients over the phone, as a recent case illustrates.
An appellate court recently ruled that when a medical assistant gives faulty medical advice to patients, it could qualify as ordinary negligence not medical malpractice making it much easier for patients to sue you and win.
This decision came from a case involving a woman who underwent an endometrial cryoablation in an OB-GYN's clinic. A few days after the procedure, the patient was experiencing increased pain in her abdomen, which also radiated to her back. She called the doctor's office and spoke to an unlicensed medical assistant manning the front desk.
The assistant listened to the patient's description of her symptoms, including pain, bleeding and changes in her stool, and told the patient she thought she had a urinary tract infection. The assistant didn't convey the patient's complaints to a doctor, but instead advised the patient to take 800 mg of ibuprofen. Court records showed the doctors at the practice instructed the assistant to give this advice to any patients who called complaining of abdominal pain.
A few days later, the patient went to the emergency room and was admitted into the ICU. A surgeon, along with physicians from the OB-GYN's office, performed exploratory laparoscopic surgery and found that her uterus was "very boggy" with a "dark, mottled" appearance. The physicians decided not to remove the patient's uterus, thinking she would not survive a hysterectomy.
Eleven days later, the patient died. Her husband sued the OB-GYN's practice. However, he filed an ordinary negligence suit instead of a medical malpractice one, insisting that the front desk's poor advice directly led to the woman's death. While a lower court ruled that the suit must meet the more-strict medical malpractice standard, the appellate court agreed with the husband that the suit should instead be adjudicated as an ordinary negligence case.
That last part is very, very important. Medical malpractice is typically a hard standard for patients to meet in lawsuits, whereas ordinary negligence cases are much easier for them to try and win. There are several key differences between the 2, including:
- Demanding testimony. To successfully try a medical malpractice case, the patient must secure very meticulous and consequently expensive expert testimony verifying the plaintiff's complaints. There is no such requirement in regular negligence cases.
- Timely filing. Unlike negligence cases, medical malpractice cases usually have a strict and short limitations and repose period, which kills suits that aren't filed in a timely matter.
- Jury instruction. If a patient manages to secure expert testimony and file a malpractice case in a timely manner, when the case finally goes to trial, the jury is given instructions that are typically unfavorable to the plaintiff. Basically, they are told that even if they think that the medical treatment was suboptimal, the medical provider should still win as long as it complied with the standard policies and procedures of the medical profession. Negligence instructions are much more broad.
- Capped damages. Most states cap the amount of non-economic damages in medical malpractice cases. As a result, patients win much less than they would in ordinary negligence cases.
Anyone can see that the case above shows negligence the unlicensed front desk assistant engaged with the patient, offered medical advice and never forwarded her concerns to a doctor. But even though the negligence is clear, there's still not a 100% guarantee that the plaintiff would win if he sued under medical malpractice standards. And even if he did, it would be for much less money. Being able to sue a practice for ordinary negligence gives a huge advantage to patients and could be a big detriment to your facility.
How to protect yourself
While this decision was delivered in Georgia, it has the potential to expose practices across the country as a trend continues of plaintiffs suing medical professionals for ordinary negligence instead of the much-more-difficult medical malpractice.
While you can't reverse this trend, you can protect yourself with a few simple steps. One important point in the case above was that the court let the plaintiff sue the clinic and the assistant for statutory violation. This means the negligence was abundantly clear. Since the medical assistant doled out healthcare advice without a license, and every state allows only licensed and educated medical professionals to treat patients, the assistant automatically broke the law.
Make sure to tell to your medical assistants and those manning the front desk that they are not to give any medical advice and instead forward all patient complaints to doctors or other licensed professionals in a clear manner. You may even consider giving the front desk a script of what to say when patients call with complaints or symptoms. Good communication among patients, providers and the front desk is imperative.
You should also clearly record this communication chain in your facility's policies. Since medical malpractice suits rely on the profession's standard policies and procedures to determine if the provider did everything "by the book," documenting a clear protocol is extremely important. In the event that a suit is tried as ordinary negligence instead, having this standard in the books might also help you avoid liability.
Special rules that protect doctors and other providers against unsubstantiated suits from patients don't extend to front-desk personnel and unlicensed assistants. By ensuring your staff have a clear policy for communication with patients and are trained properly, you can help forestall a costly suit while enhancing patients' overall care.