As a medical and dental malpractice attorney, I’ve seen providers make their fair share of miscalculations. The consequences can be economically costly and professionally condemning.
Below I illuminate some of the most common problems I encounter with an eye to prevention:
1. No malpractice coverage. This is both the the most expensive and easily preventable mistake I encounter. The solution is obvious: get insurance. The repercussion is equally obvious: personal responsibility for the legal fees incurred fighting adverse allegations. These can be and often are substantial.
2. Improper and/or inadequate clinical notation. This failure can come back to bite providers in more ways than one.
First, it is of chief importance that providers’ notes are consistent with the policies outlined by the various insurance companies they transact with. Many times providers will take their findings for granted or believe they are implied. But often times insurance companies will use these “implied” findings as the basis for seeking repayment of benefits previously conferred. Insurance audits happen regularly, and many malpractice carriers will not pay to defend their providers from them. There’s no better feeling when faced with an audit than knowing that your clinical notes are clear, comprehensive, and kept in accordance with the protocol.
Second, poor clinical notes hinder defense from the perspective of legal representatives. In defending providers, I’m often tasked with trying to make sense of incomplete or inconsistent notes. Sometimes they’re so unclear or illegible, and so much time has passed, that the treating provider forgets what occurred or can’t logically explain their actions. This serves as a weak foundation for legal defense and looks bad to jurors who - as lay people like me - infer wrongdoing when things don’t seem to add up.
3. Failure to diagnose. This issue goes hand in hand with what’s discussed above: inadequate notation. For example, providers know when they see periodontal disease. Often, and properly, they alert the patient afflicted. The problem is, they frequently fail to document such discussions. And in the context of malpractice allegations, failure to document such a discussion is tantamount to a failure to diagnose. The claimed damages that flow from such allegations, including the necessity to obtain present and future corrective work, pain and suffering, emotional anguish, and lost wages, to name some, can be substantial.
4. Inadequate referral. Providers regularly refer their patients to specialists and practitioners in other disciplines. But like making diagnoses, it is critical that such referrals be recorded in clinical notes, and ideally a copy of the referral itself scanned and stored. As with a failure to diagnose allegation, a claim of failure to refer has costly repercussions. And unfortunately, providers lose these cases often, even when they swear to me that, in the operatory, they referred the patient more times than they can remember. Make the note.
The above are just a few of the most common problems I encounter. But it’s important that providers educate themselves on proper protocol and brush up regularly as policies change.
If you’re a medical provider in New York, New Jersey, or Connecticut that’s faced with a lawsuit, contact an attorney at Spiegel Leffler, PLLC: trusted defense for healthcare professionals.
Submitted by getPycked on February 18th, 2019