Malpractice advice for residents

[G0610]

I heard from few residents that they got named in lawsuit because they were in the op report or names were in the chart. What to do in this case????

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[JackADeli]

I heard from few residents that they got named in lawsuit because they were in the op report or names were in the chart. What to do in this case????

Notify hospital risk management. Although, it is usually they who notify you first.

Then, you wait to hear the instructions from the attorney provided by risk management. In other words, you sit tight and wait for further instructions, etc... from the hospital. You NEVER speak to the plaintiff's attorney or anyone else without appropriate guidance from your malpract carrier attorney, aka hospital risk management. You also do not discuss this issue with anyone else (i.e. friends and co-workers), you do not discuss it on facebook or on forums, and you do not request or start reviewing charts. Just sit tight.

For any guidance beyond that, I suggest you get directly from the attorney.

 

[atsai3]

I heard from few residents that they got named in lawsuit because they were in the op report or names were in the chart. What to do in this case????

Nothing to do. Like the previous poster said, chances are that risk management is already involved.

-AT.

 

[JackADeli]

First, do not over react when you are sued. Often times, the lawyer sues everyone in the chart because of filing deadlines to avoid missing the statute of limitations which could result in an almost certain malpractice charge against him. Other times, the facts of the case are murky. He may not know who really is at fault without getting the physicians to testify and start pointing fingers. Once the picture becomes more clear, he will drop the suit against innocent physicians.

Second, the answer may be more complicated because your legal interests may be adverse to the legal interests of the attending or other physicians in the chart.

You need to access who was really at fault without telling anyone. Most physicians should be able to determine who was at fault from a clinical perspective. If it was really your fault and the attending is blamed for lack of supervision, then your interests are adverse to your attending. When push comes to shove, the attending might through you under the bus. If it was the attendings fault and you were just following orders, then the attending might still try to throw you under the bus. However, this position would be more difficult to defend during litigation. If you and your attending just happened to be consultants who did not make the decisions that led to the malpractice, then your interests are likely aligned. Aligned interests usually pose a lower risk of complications once litigation starts and permits joint representation by house counsel. Adverse interests are better served by separate counsel.

You must understand that the house counsel is primarily loyal to the hospital that pays him. Representing you or the attending could be in the hospital's interests or not. For example, if the conduct is so egregious that it could actually result in a malpractice judgment, the hospital could try to pin the blame on you or your attending to reduce its own liability. Indeed, there are some cases where clients have sued their attorneys for malpractice due to conflicting interests. For example, the house cousel representing both you and the hospital goes all out for the hospital while leaving your defense wanting.

Also you should consider whether your conduct could warrant dismissal or a non-renewal of your training contract.

The facts could get more complex and could require an evaluation of the motivations of all the affected parties.

Herein lies the rub. As a resident you may be too poor to afford an attorney to represent your interests. You might have to look into your handbook or contract to see whether you can insist on separate representation paid for by the hospital.

Ideally separate representation is best but comes with a higher cost.

Finally, this post is just a general overview of common pitfalls. You need to seek your own legal representation and reveal the facts of the case in a protected attorney-client relationship.

You have written quite a bit... though, much is not reasonably applicable or practically applicable at the resident level. Your legal counsel and/or terms of defense are going to be quite limited to the terms of your malpractice coverage paid through hospital/residency. What a RESIDENT can and should do is speak to the risk management people for the residents and simply ask them about your coverage, terms, counsel, and specifics of the case. You can not and should not go investigating the case or the chart without first discussing with the appropriate risk management people. You also can not ethically or legitimately investigate without anyone else knowing it.

 

[JackADeli]

Knowing who screwed up is pretty easy from the chart and from your own conduct in the case. Reading the chart after getting notice of a suit is not really a full blown investigation that could get you into trouble. No reasonable physician can fault you for refreshing your memory of the case.

Risk management is in-house counsel. Their loyalties may or may not be divided depending on the above listed scenarios.

If you think that you were at fault, or if the insurer wants to settle on your behalf to avoid the cost of litigation even though you were not at fault, you need to insist on getting independent counsel. This situation could be like getting in a car wreck where you think you are not at fault. Your insurer may want to settle to avoid the costs of litigation, but you do not. In that case, the counsel for the insurer and loyal to it may not be the best attorney for you. You can insist on separate counsel. The counsel for the insurer will likely agree, because he does not want to be sued for malpractice, if there is an adverse outcome. Indeed, he could face sanctions from his bar.

Suppose you were at fault and the first thing you do is trust in-house counsel of the hospital. They tell you they will take care of the matter. Suppose that the district you're in apportions damages as a percentage formula to each offending party rather than holding all parties liable for the full amount. In the percentage district, the house counsel may throw you under the bus due to your negligent conduct. The hospital's liability could be significantly reduced, and it would not have to pay for the percentage of your misconduct. Instead if the district holds all accountable for the full amount, then the house counsel may not throw you under the bus, because if you can't pay, then the hospital would have to pay anyway. This is a common fact pattern.

In general, if you know you screwed up, then insist on getting separate counsel. If you are covered under hospital insurance, the house counsel of the hospital should recognize the conflict of interest in this case. His trying to save money by advising you to accept his representation could result in a legitimate malpractice suit and sanctions from his bar.

In this kind of scenario, there remain other issues as well that are beyond the scope of this post. For example, if you insist on separate counsel paid for by the hospital, that separate counsel could still be loyal to the hospital in that it refers to him cases where separate counsel is legally ethically required. If he acts against the interests of the hospital in your favor, he risks the hospital not referring him future cases.

Another risk is that your program may think you are insubordinate for not accepting house counsel's possibly biased advice in this possibly conflicted scenario. Then the program may resort to much of the misconduct complained about on this board.

Trust me, this scenario can get complex. Someone is usually screwing someone else over. A major aspect of law is this fundamental aspect of human behavior. You need separate counsel if you think you are at fault or if you think your attending is going to throw you under the bus.

Again, you have written a great deal, that is either innacurate/incorrect or I am just reading it wrong. In which case, I am going to comment, clarify or correct it below for those that read it and may be confused or may not understand it.

1. If knowing who screwed up or is at fault was as easy as reading the chart, well things might be much easier. That claim or how I am understanding it is quite misinformed.
2. In malpractice suits, you are not concerning your self with a "reasonable physician" faulting you. A malpractice suit and defense there in is not about a reasonable physician or some hospital admins faulting your read of the chart....
3. Yes, independently running down to records and reviewing a chart can get you in trouble, both within the confines of an ongoing legal action and in general!

So, there are a few things everyone needs to wrap their heads around and get a real understanding of reality.

A. Any healthcare providers (nurse, PT, RT, MD, etc...) legitimate/ethical/legal access to a patient's medical records is limted and finite. Physicians have ready opportunity to records without many question but this does not mean they have a legitimate reason or patient consent. Residents are often the most common and worst violators of patient confidentiality. A resident has a legitimate cause to review patient information when they are on the service and involved in the care of said patient. This legitimate cause can be extended from an educational perspective and/or quality improvement. Still, it is not uncommon for a resident to be off service and no longer involved in a patient's care and "wonder what ever happened to...". The "I wonder what happened" reason is not a legitimate or legal justified reason to review or look-up patient records when you are no longer actively involved in the patient's care. It is a violation of the patient's rights. Attendings also do this, though they often do have longer duration of active patient care involvement.

B. If you are sued, there are some things that a reasonable person can presume. One of those is that you are no longer involved in the patient's care or that you have been ~fired from the patient's care. Thus, any overt or implied consent for you to view the patient's medical records has been rescinded.

C. If you are sued, you do have a right to defend. Your right to access the patient's records is within the confines of formally defending yourslelf. Thus, you are expected to request the patient records legitimately through appropriate mechanisms. The patient is entitled to know you are reviewing their records for said purpose. So, this review is undertaken through a legal defense process. It is the same as patients requesting their charts to sue or for other reasons. They are required to complete appropraite requests, etc. Just because you, as aphysician, have more access to more regions of the hospital does not mean you have legitimate or legal rights to exercise this access at will. See "A" above.

D. You running down and just checking out a chart on a patient that is suing you can and often does get physicians in trouble.... ask your attorney if you think you have some privilege/right to do so. Such action is often construed to represent you badly and likely hurts your defense.

E. If you are being sued, the chart is likely already in the hands of risk management. Your reviewing it will be via photocopies or supervised review... for a multitude of reasons. Not the least of which being loss of pages, rising concerns of alteration of documents, etc... can have real adverse impacts on all parties ability to litigate the case.

F. All this hyperbole of "house counsel" and trying to construe the hospital amd the risk management in a pseudoadversarial/enemy light is a mistake, day late late dollar short, and not going to help you much. This is something you need to understand long before you are named on a suit. As a resident, you have contracted with an institution to include malpractice coverage. The insurer is actually the party most concerned with loosing a large claim and thus often the ones providing/arranging counsel in conjunction with the hospital. You may find, the terms of your policy even allows the attorney (insurer provided) to settle without your consent. To push the, "they are my enemy/adversary", approach, you may have to forego your malpractice coverage altogether. There are strings tied to accepting/receiving coverage and counsel from your carrier. You may be able to hire your own attorney outside of this but in doing so be required to release the malpractice carrier from any coverage of liability. If you, or anyone else resident/attending has concerns about your risk management division, potential malpractice defense, etc... you need to look into this long before any suits are filed. You need to start having some discussions with the insurance company to find out what are the terms of the coverage before you have a problem. There is little worse then having home owners insurance then crying later because the water damage wasn't covered for lack of "flood" coverage.

Roofie, honestly, while it may be I am misreading your replies, I find them in this matter to be very bad advice and will likely elevate tension and fears more then necessary for residents that find their name on a suit. Ins hort, much of it, IMHO, is not helpful and can be hurtful (if followed) to the plight of a resident or physician that finds themself named on a suit. I welcome & encourage WS, AProgDir, DrOliver and others to chime in on this. Patient records and rights to privacy are serious... and advice in this regards really should be more accurate.

 

[Smurfette]

Again, you have written a great deal, that is either innacurate/incorrect or I am just reading it wrong. In which case, I am going to comment, clarify or correct it below for those that read it and may be confused or may not understand it.

1. If knowing who screwed up or is at fault was as easy as reading the chart, well things might be much easier. That claim or how I am understanding it is quite misinformed.
2. In malpractice suits, you are not concerning your self with a "reasonable physician" faulting you. A malpractice suit and defense there in is not about a reasonable physician or some hospital admins faulting your read of the chart....
3. Yes, independently running down to records and reviewing a chart can get you in trouble, both within the confines of an ongoing legal action and in general!

So, there are a few things everyone needs to wrap their heads around and get a real understanding of reality.

A. Any healthcare providers (nurse, PT, RT, MD, etc...) legitimate/ethical/legal access to a patient's medical records is limted and finite. Physicians have ready opportunity to records without many question but this does not mean they have a legitimate reason or patient consent. Residents are often the most common and worst violators of patient confidentiality. A resident has a legitimate cause to review patient information when they are on the service and involved in the care of said patient. This legitimate cause can be extended from an educational perspective and/or quality improvement. Still, it is not uncommon for a resident to be off service and no longer involved in a patient's care and "wonder what ever happened to...". The "I wonder what happened" reason is not a legitimate or legal justified reason to review or look-up patient records when you are no longer actively involved in the patient's care. It is a violation of the patient's rights. Attendings also do this, though they often do have longer duration of active patient care involvement.

B. If you are sued, there are some things that a reasonable person can presume. One of those is that you are no longer involved in the patient's care or that you have been ~fired from the patient's care. Thus, any overt or implied consent for you to view the patient's medical records has been rescinded.

C. If you are sued, you do have a right to defend. Your right to access the patient's records is within the confines of formally defending yourslelf. Thus, you are expected to request the patient records legitimately through appropriate mechanisms. The patient is entitled to know you are reviewing their records for said purpose. So, this review is undertaken through a legal defense process. It is the same as patients requesting their charts to sue or for other reasons. They are required to complete appropraite requests, etc. Just because you, as aphysician, have more access to more regions of the hospital does not mean you have legitimate or legal rights to exercise this access at will. See "A" above.

D. You running down and just checking out a chart on a patient that is suing you can and often does get physicians in trouble.... ask your attorney if you think you have some privilege/right to do so. Such action is often construed to represent you badly and likely hurts your defense.

E. If you are being sued, the chart is likely already in the hands of risk management. Your reviewing it will be via photocopies or supervised review... for a multitude of reasons. Not the least of which being loss of pages, rising concerns of alteration of documents, etc... can have real adverse impacts on all parties ability to litigate the case.

F. All this hyperbole of "house counsel" and trying to construe the hospital amd the risk management in a pseudoadversarial/enemy light is a mistake, day late late dollar short, and not going to help you much. This is something you need to understand long before you are named on a suit. As a resident, you have contracted with an institution to include malpractice coverage. The insurer is actually the party most concerned with loosing a large claim and thus often the ones providing/arranging counsel in conjunction with the hospital. You may find, the terms of your policy even allows the attorney (insurer provided) to settle without your consent. To push the, "they are my enemy/adversary", approach, you may have to forego your malpractice coverage altogether. There are strings tied to accepting/receiving coverage and counsel from your carrier. You may be able to hire your own attorney outside of this but in doing so be required to release the malpractice carrier from any coverage of liability. If you, or anyone else resident/attending has concerns about your risk management division, potential malpractice defense, etc... you need to look into this long before any suits are filed. You need to start having some discussions with the insurance company to find out what are the terms of the coverage before you have a problem. There is little worse then having home owners insurance then crying later because the water damage wasn't covered for lack of "flood" coverage.

Roofie, honestly, while it may be I am misreading your replies, I find them in this matter to be very bad advice and will likely elevate tension and fears more then necessary for residents that find their name on a suit. Ins hort, much of it, IMHO, is not helpful and can be hurtful (if followed) to the plight of a resident or physician that finds themself named on a suit. I welcome & encourage WS, AProgDir, DrOliver and others to chime in on this. Patient records and rights to privacy are serious... and advice in this regards really should be more accurate.

I did residency in IL, which is a very litigious (sp?) state. Several residents I worked with over the 5 years were name in malpractice suits; obviously the rest of us would ask questions about the process and how it worked (and no, we didn't know details about the cases themselves....we all knew better than to ask).

From a resident perspective, the legal department of our hospital contacted those involved in the suit (unless they got served directly, in which case the first call should be to risk mgmt/legal department). As JAD said in B-C-D-E, whose advice was spot on from what I've learned, the first thing they were told was that if they wanted to access the records, they had access to review the patient's chart, but had to do so by official means. Generally this access was supervised so there was no chance of being accused of doctoring the chart. The 'house counsels' would meet with all individuals named in the suit and prep them for deposition and explain the process. At my institution, the house counsel usually represented the residents, and most attendings would also have their own counsel (if not, they would also get representation). Everyone I knew who was named in a lawsuit or gave a deposition was ultimately dismissed from the case; the legal department made it clear that as a resident, you were not the usual 'target' of the lawsuit as you are still in training/supervision stages of your career---and thus had great success (>90%) in getting residents dismissed from the lawsuit. I never heard a resident named in a suit as being unhappy with their representation, of hiring a private lawyer rather than using the hospital attorney, or of wishing that they had hired someone else. Obviously, every situation is different, but those involved in suits would usually say "the hospital provides you a lawyer and they take care of things for you and tell you what you need to do" when the rest of us were learning that they were named in a suit. They'd be pissed that they were named, but they weren't at all upset with the legal team.

Several thoughts, although others here probably have more direct experience:
1. The hospital is trying to look out for themselves, yes. But 'themselves' does not equal 'everyone but you'. Attendings often get their own attorneys, and may not be directly employed by the hospital. Residents are employed by the hospital. The hospital pays your malpractice insurance, so the hospital DOES have an interest in how things turn out for you. And residents don't exactly have deep pockets, so if the resident can't pay, the hospital will have to. Malpractice attorneys aren't interested in getting money from a resident, they are interested in getting the most money they can, from the source with the deepest pockets....i.e. not you.

2. Going through patient records to find 'who's at fault' is really not going to get you far. You will have to give a deposition, and you will be able to review the records. Often in malpractice, there is not a person to blame. Families are upset, and decide to sue, but the 'adverse outcome' does not have to be due to a mistake. I have heard of lawsuits due to 'not liking a scar' and for the 85 yo guy with the ruptured AAA who died and the family sues since 'he died because the doctors screwed up'. *Most* suits are for things that you think "they sued for THAT?" and not because anyone screwed up.

3. 90% of malpractice lawsuits that make it to court are won by the defendant MD. The majority are settled or dismissed before this point.

4. Document things well as a resident. Make it clear things have been discussed with attendings. Justify why decisions are made. The better the documentation, the more likely you are to be dropped from the suit (assuming your judgment and decisions were correct).

5. Each situation is different. While some people may find that their representation is not 'completely loyal' to them, that does not mean that everyone needs to find an outside attorney. You can always find your own representation later on during the suit, if you are dissatisfied with your current team. Thus, while it's best to keep in mind that you can find someone else, IMO, wait and see how things progress and save the money for when it's clear you need your own lawyer. You are likely not the ultimate target--see #1.

 

[JackADeli]

This concept of a patient rescinding consent for a physician to view the patient's chart when he has contributed to the care of the patient does not exist in the U.S. A physician has a right to a permanent record of his activities. Let's say you have a private practice when you are done with residency. You see a patient and make a chart. You keep that chart for as long as you want. ...

You having a private practice and keeping the chart you created within your practice is a far, far different thing then the hospital generated chart and the relationship of a resident. The topic of the OP is a RESIDENT named on the suit.

As for access to patient medical records and consent therein, there are limits. Again, if it is your private practice with your charts, you can sit in your office and review your chart.

However, the fact that you provide care for a patient at some period of time does not mean you have indefinate rights and or access to their medical records because you provided care to said patient and still work in the hospital. That is at best just a matter of geography. Because an ObGyn delivered a kid does not mean the OBGyn can now walk to a hospital they do not have privileges and be entitled to see the kids medical records, because they deklivered the kid. Or, an OB works at a hospital, provides routine care for a woman as in or outpt. This does not mean OB can at will review EMR of woman or go down and review what sort of psych care, general surgery, etc... simply because you are "one of her doctors". The consent for access to a patient's records is in fact regarded as finite and reasonably limited.

Because you have made contact and/or been involved with a patient's care at some point does not grant you unlimited consent for future access to hospital or other practice/s records. Unlimited access only exists in reference to your own private practice owned records... and even that gets scrutinized in a suit.

By the way, no, you as a RESIDENT can not start creating your own home files of patients for unlimited, eternal access.

 

[Winged Scapula]

There is not much to add to the interesting discussion above, but I wanted to make a few comments:

1) Like Smurfette, I find the use of the phrase "screwed up" or "mistake" to be rather presumptive. MOST malpractice suits, even those that go to trial, are not the result of medical negligence or even a technical/knowledge based error but because of an outcome the patient/patient's family does not like. Therefore, spending hours pouring over the records to look for evidence of a "screw up" is not fruitful because in many cases there won't be one, or at least that's not the reason for the suit.

2) Hospitals cannot prevent you from looking at the record, but they can make it very very difficult. I was named for an event that reportedly occured while I was a resident; I was a fellow in another state by the time the complaint was filed (it was eventually dropped when the plaintiff's attorney told her he could not successfully prosecute a win for her).

The patient's EMR/chart was blocked from being open; the hospital would not mail me any copies of the records and I was told I would have to physically appear (from another state) in person to review the records at which time I would be observed while doing so. It could not be done on a weekend or a holiday when I could reasonably travel from said state back to my residency state. I didn't remember the patient and was, in many ways, effectively barred from reviewing the facts of the case. Fortunately, it was dropped before I needed to go to the trouble.

I am not sure what the chart in your private practice has to do with the OP's concern; of course those charts are my personal records and I am allowed to keep them. This may not be the case with residency or as noted above, hospitals guard these and make it difficult to access.

3) In all cases, you do need to be careful that your representation does not have conflicting goals. Thus, an attorney that represents you and the hospital may not have your best interests in mind. Your resident contract may or may not require them to provide you another attorney at your request; this will vary. The same happens when you are out in practice; you must see what you are agreeing to when you sign contracts.

 

[JackADeli]

Just one more thing to keep in mind, often the attorney is provided/paid via your malpractice carrier. This is part of the benefits of this insurance coverage. So, the hospital pays the insurance coverage but the legal defense is often in part if not total provided by your carrier. The carrier has the big financial stake in this, often in the millions. They are not likely to simply roll over and say, "hospital just go get any yah hoo and defend this. If it doesn't work out, we will pay up to the max coverage limits...". You, as a physician, may have your reputation at stake, if agregious your license, but the actual financial risk is carried by the insurance, that is what you/hospital paid for...

 

[maxheadroom]

Interesting thread. Lots of good advice here, especially from Winged Scapula (no surprise) and JAD (no surprise either).

My general thoughts . . .

I've never been sued (knock on wood), but I trained in a high-risk state and had a couple of friends who were named as residents (and dropped later). Everybody involved in a case like this is named and they usually drop residents once they get the depositions -- it's a good way to motivate you to cooperate. Ultimately, the deepest pockets are the hospital, not the residents.

Also, large academic medical centers are frequently self-insured, while smaller practices are usually covered by the major carriers like The Doctors Company.

As a resident you are covered by a different policy than your attending, since you are an employee of the hospital/medical school and the attending is an employee of the faculty practice plan. As such, you will have different representation than the attending.

The hospital's in-house counsel will rarely have a direct role in the process beyond co-ordination. Most hospitals will contract with a medical defense firm for litigation. If you receive an in-house attorney, make sure that they have a substantial background in medical defense. If they don't, you have the right to demand an attorney who has appropriate experience.

It would be inadvisable to access patient records if you've been named -- you'll be given ample opportunity to review records when the time comes.

The most important thing to do (if this ever happens) is to talk to the risk managers right away. A good attorney will give you extensive coaching regarding how depositions are conducted. S/he will work with you extensively on how to answer questions. You will receive instructions regarding what questions you have to answer versus which ones you can decline to answer.

If this happens you MUST listen carefully to the attorneys who represent you and follow their instructions. They are the professionals and if they are experienced medical malpractice specialists, they will give you excellent advice and take good care of you.

 

[michaelrack]

since you are an employee of the hospital/medical school and the attending is an employee of the faculty practice plan. As such, you will have different representation than the attending.

.

sometimes.

The employment situation of attendings varies a lot. Often an attending is getting $ from 3-4 sources (medical school, hospital, department, practice plan, research income, etc) and who the chief employer is varies.

 

[NotAProgDirector]

I'm not sure I have much to add to this discussion.

1. I agree that a private practitioner keeping their own medical records is a different situation than working in a hospital. In the first, YOU own the records. In the second, the hospital owns the records. Access is limited by your hospital's bylaws.

2. Each state is different, as far as the law goes. Hence, you really need someone local with experience to help you with this.

3. Reviewing the records "on your own" is a terrible idea. Most hospitals maintain some sort of record access trail, and the patient's attorney's will see that you accessed the records. They will ask you "So, Dr. X, why did you access the records?". You'll say "to review what happened / refresh my memory of the case", at which point they can ask you for your opinions, etc. I had a colleague do this and actually created a whole bunch of notes for themselves. The defense attoney's seized the notes to review. If you review the chart with your counsel, then all is protected by privilege. Else, they can ask you to testify on anything you found.

3. Whether or not you should get your own attoney is complicated. Yes, it's the safest thing to do. It is also wildly expensive. In general, it is overkill in most cases for residents. In most cases, the insurance carrier for the hospital will be the same for the resident. But not all cases, and I'm sure there are stories of people getting screwed.

 

[maxheadroom]

sometimes.

The employment situation of attendings varies a lot. Often an attending is getting $ from 3-4 sources (medical school, hospital, department, practice plan, research income, etc) and who the chief employer is varies.

True. However, when I interviewed with universities and multi-specialty groups last year, the majority worked as I stated. In general, in most academic medical centers, the attendings have different malpractice coverage than the residents.

 

[JackADeli]

...what I've learned, the first thing they were told was that if they wanted to access the records, they had access to review the patient's chart, but had to do so by official means. Generally this access was supervised so there was no chance of being accused of doctoring the chart..

...Going through patient records to find 'who's at fault' is really not going to get you far. You will have to give a deposition, and you will be able to review the records...

...Document things well as a resident. Make it clear things have been discussed with attendings. Justify why decisions are made. The better the documentation, the more likely you are to be dropped from the suit...

I agree with Smurfette. The most important and best means of defense, especially as a resident, under the umbrella of being a resident, is good documentation. This defense is done before the suit and everyday of training by every note you put in the chart. This does not mean lengthy novels but concise and accurate. Especially, noting the fact that case & plan was discussed at length with attending.

...It would be inadvisable to access patient records if you've been named -- you'll be given ample opportunity to review records when the time comes.

The most important thing to do (if this ever happens) is to talk to the risk managers right away...

If this happens you MUST listen carefully to the attorneys who represent you and follow their instructions. They are the professionals and if they are experienced medical malpractice specialists, they will give you excellent advice and take good care of you.

...Reviewing the records "on your own" is a terrible idea. Most hospitals maintain some sort of record access trail, and the patient's attorney's will see that you accessed the records. They will ask you "So, Dr. X, why did you access the records?". You'll say "to review what happened / refresh my memory of the case", at which point they can ask you for your opinions, etc. I had a colleague do this and actually created a whole bunch of notes for themselves. The defense attoney's seized the notes to review. If you review the chart with your counsel, then all is protected by privilege. Else, they can ask you to testify on anything you found...

I am very glad to see the participants in this discussion broadening. This is a very important matter to all but especially to residents. Residents are often caught in the litigation wide net.

As a resident, you have far less control over patient care combined with a far greater chart presence. You also are omni-present within the hospitals or primary care clinic. Thus, your access to patient records/charts is often un-impeded.

It is a scary thing to get that first notice of malpractice suit. This can create an expectedly high anxiety and anger level. You do not want your access and fears to combined and push you into independent action that can hurt your defense. All things being equal, you are very likely to be dropped at some point between initial filing, the discovery phase or pre-trial motions. If you engage in conduct, ill advised, you may find yourself more cemented into the case.

You will be asked if you have reviewed the records. You will be asked why you reviewed and when. As noted, if under the umbrella of legal counsel, your review is protected attorney/client privilege. You will be asked if you have records of your own. These are discoverable documents. Emails on the case with individuals other then counsel, spouse, or clergy confessional is discoverable. You will be asked for a list of people you have discussed this case with; other then the aforementioned protected three categories. Anyone outside that three, can and may be subpoened.

I hope others accross the board will continue to participate, adding their experiences and knowledge. It is very common for physicians at all levels, residency to attending to be named in suits. Thus, many of us have individual experiences with instructions and attorney guidance and the overall process. I wonder if BD and/or DrOliver may have any experiences/knowledge from outpt and inpt practice standpoints?

 

[maxheadroom]

In my residency we had the hospital counsel come and talk for a couple of resident conferences about medical malpractice (what happens if you get sued), important documentation habits, HIPAA, and EMTALA. She loved doing it -- she said that she didn't get many opportunities to teach BEFORE something bad happened.

 

[JackADeli]

I think the ideas above would be great. I think advice for residents on what they should consider and general ideas of first step, i.e. contact hospital risk management, is a good idea. I also think including some basics on the patients rights to provacy and the residents reasonable expectations for medical record/s access is important.

To add, I wanted to comment on accessing medical records. With the ever increasing move from paper to EMR, it is easier then ever to access records from notes, to labs, and reports. So, I was named as a "witness" to a mal-pract suit in the past because my name was on the chart. A couple things came up in the deposition:

1. The plaintiff with an attorney of even minimal ability will review all EMR access. So, be careful logging in and looking up labs, reports, etc... for your friend/colleagues. I am not talking just non-clinical either. Suppose you are at home, a colleague is there drinking a beer and says he/she wants to check on labs of a patient can you log in from home for them....

2. When you are off the case, ie. new service, steer away from your curiosity to take a look. Again, this came up during my depo. They had the on-call and vacation schedules. they asked me, "Doctor, we see here you were post-call Friday morning and listed as on vacation from that day through the following week. Why is there a computer log of you accessing patient x's records on Sunday?".

3. Resist the temptation to try and "run your patient" from home when you are off duty. See 1 & 2 above.

4. Resist the temptation to just stop by the hospital and access a computer on your off time. Numbers 2, 3, & 4 above you are re-inserting yourself into care and taking responsibility for actions you engage in when you are not able to actually assess the patient.

5. At my deposition, it became clear that some of these so called "orders" I entered while off duty and or away were actually automated, "verbal orders". Apparently, the patient was admitted while I was on duty Thursday. I initiated a medication sliding scale. All sliding scale adjustments made and derived from the original admit orders were default electronically logged as verbal orders from me.

6. Be careful just approving verbal orders that are massed into you EMR "inbox". There are plenty of individuals from nursing, mid-levels, to attendings that auto push "verbal orders" to the easiest physician or the physician name they just remember... even if you aren't on the service.

 

[michaelrack]

"Doctor, we see here you were post-call Friday morning and listed as on vacation from that day through the following week. Why is there a computer log of you accessing patient x's records on Sunday?".

3. Resist the temptation to try and "run your patient" from home when you are off duty. See 1 & 2 above.
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"I logged in to check on the results of the chest CT scan I ordered prior to my scheduled vacation. I was planning on calling the covering resident to discuss the situation if signs of recurrence of lymphoma were found"

A true doctor is never off-duty.

 

[45408]

A. Any healthcare providers (nurse, PT, RT, MD, etc...) legitimate/ethical/legal access to a patient's medical records is limted and finite. Physicians have ready opportunity to records without many question but this does not mean they have a legitimate reason or patient consent. Residents are often the most common and worst violators of patient confidentiality. A resident has a legitimate cause to review patient information when they are on the service and involved in the care of said patient. This legitimate cause can be extended from an educational perspective and/or quality improvement. Still, it is not uncommon for a resident to be off service and no longer involved in a patient's care and "wonder what ever happened to...". The "I wonder what happened" reason is not a legitimate or legal justified reason to review or look-up patient records when you are no longer actively involved in the patient's care. It is a violation of the patient's rights. Attendings also do this, though they often do have longer duration of active patient care involvement.

To what extent? A surgeon (or resident) who does not monitor their outcomes is not going to be learning what works and what doesn't.

They will ask you "So, Dr. X, why did you access the records?". You'll say "to review what happened / refresh my memory of the case", at which point they can ask you for your opinions, etc. I had a colleague do this and actually created a whole bunch of notes for themselves. The defense attoney's seized the notes to review. If you review the chart with your counsel, then all is protected by privilege. Else, they can ask you to testify on anything you found.

Our risk management told us that you should not keep your own notes on anything as a general rule. I throw away all of my patient lists (which are heavily annotated every day) that we use as residents because of that.

 

[Smurfette]

IMO, I think it's more that there needs to be a reason to check a patient's chart once you rotate away. Following up on path or a test you ordered is one thing, but checking the chart after a significant amount of time has passed out of curiosity is different. For example, the week after rotating to a different service I'd check some of the tests I'd have scheduled, or ask a member of the team. But 3 months later, if I check the chart, a lawyer may want to know WHY, 3 months after I was no longer caring for this patient, I decided to look up this particular patient---so there needs to be a reason other than 'just because I thought of her today'. They could have a field day with you if you don't have a legitimate reason and could suggest that you are guilty of something (medical mistake, HIPAA violation, who knows how the lawyers think) to paint you in a bad light. Usually we asked the attending or the residents on the relevant service what happened to the patient.... If you need to access the chart for educational reasons (case conference presentation, M&M, educational radiology finding to show to others, etc.), I think you could simply state that for the record; it's a valid reason. It's not that you can't ever go in the chart again, it's just that you need an explanation for doing so (think of it as your alibi). But I could be wrong as I am not a malpractice attorney. However, this is what seems most realistic IMO.

However, EMRs are usually set up in such a way that they can tell exactly which parts of the chart you are reviewing---this can either help you or hurt you in defending what you were doing in the chart.

 

[JackADeli]

"I logged in to check on the results of the chest CT scan I ordered prior to my scheduled vacation. I was planning on calling the covering resident to discuss the situation if signs of recurrence of lymphoma were found"

A true doctor is never off-duty.

Yes, yes, we can have whole other thread about the super human never off duty qualities of ATTENDING physicians. We can discuss exactly how much work you choose to bring home, how much you and/or your family will sacrifice because you choose to turn a vacation into a working vacation, how much you do not trust your partners to care for your patients in your absence. Those are all very interesting and wonderful thoughts for another thread.

However, they don't really help with the topic at had which is RESIDENT and malpractice. A resident, no matter how much atendings and residents like to believe, does not own the patients or carry primary management responsibility. In theory, the management of a resident is under the guidance and supervision of the attending teaching staff. Residents are expected to be "completely free of clinical dutties" at points. The resident can, if they choose start chasing labs, entering charts, coming into the hospital all during their time off if they choose. However, in doing so, he/she eliminates the ability to honestly say, "I was no longer involved with this case/on this case/providing care at the time this unfortunate outcome occurred...".

An attending also looses such ease of extraction from a suit as well. Yes, an attending, on vacation when a mal-outcome/occurance happens, could say, "I was on vacation at the tim. You would have to ask my partner.". That is lost if while on vacation you were electronically reviewing critical labs & reports and/or ordering things. As noted, topic of attending is different then for residents.

...Any healthcare providers (nurse, PT, RT, MD, etc...) legitimate/ethical/legal access to a patient's medical records is limted and finite. Physicians have ready opportunity to records without many question but this does not mean they have a legitimate reason or patient consent. ...A resident has a legitimate cause to review patient information when they are on the service and involved in the care of said patient. This legitimate cause can be extended from an educational perspective and/or quality improvement. Still, it is not uncommon for a resident to be off service and no longer involved in a patient's care and "wonder what ever happened to...". The "I wonder what happened" reason is not a legitimate or legal justified reason to review or look-up patient records when you are no longer actively involved in the patient's care. It is a violation of the patient's rights. Attendings also do this, though they often do have longer duration of active patient care involvement...

To what extent? A surgeon (or resident) who does not monitor their outcomes is not going to be learning what works and what doesn't...

...Following up on path or a test you ordered is one thing, but checking the chart after a significant amount of time has passed out of curiosity is different. For example, ...after rotating to a different service ...3 months later, if I check the chart, a lawyer may want to know WHY, 3 months after I was no longer caring for this patient, I decided to look up this particular patient---so there needs to be a reason other than 'just because I thought of her today'. They could have a field day with you if you don't have a legitimate reason and could suggest that you are guilty of something (medical mistake, HIPAA violation, who knows how the lawyers think) to paint you in a bad light...

I think Smurfette covered this adequately. There are limits. yes we can sit back and try to create some unlimited umbrella of access under the guise of "education" and "quality improvement". But, there are limits. You will not be arguing them with us, but rather with attornies if given the right circumstances. There are some things that should fall under common sense.

...Our risk management told us that you should not keep your own notes on anything as a general rule...

Correct. Any notes, records, "shadow charts" are discoverable and you would be by law required to produce everything... and explain why you generated and/or kept such ~atypical documentation.

 

[michaelrack]

However, they don't really help with the topic at had which is RESIDENT and malpractice. A resident, no matter how much atendings and residents like to believe, does not own the patients or carry primary management responsibility. In theory, the management of a resident is under the guidance and supervision of the attending teaching staff. Residents are expected to be "completely free of clinical dutties" at points. The resident can, if they choose start chasing labs, entering charts, coming into the hospital all during their time off if they choose. However, in doing so, he/she eliminates the ability to honestly say, "I was no longer involved with this case/on this case/providing care at the time this unfortunate outcome occurred...".
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You are probably right from a risk management standpoint. However, most residents are licensed physicians (although for some it is a provisional license). The ACGME can not override the ethical responsibility that a licensed physician has for his patients (even if another doctor has the primary responsibility at the time).

I fear that the next generation of doctors is going to have a shiftwork mentality.

 

[JackADeli]

...I fear that the next generation of doctors is going to have a shiftwork mentality.

No need to fear it, it is already a general reality.

"We" may not like it but that is the changing world. With both changes in education model, lifestyle choices, and malpractise issues, there are driving forces. Can you be always on duty? Yes. But, it may seem to protect you more to sign out, leave your patients covered by a trusted/qualified individual and be completely "off duty". One will have to make the choice of "always on duty" or being allowed to be "off duty". If always on duty, does that physician ever have a drink, two drinks, three, etc...? One can not set an expectation for patients that they are "always on duty" ... except when they are not.

The liability environment makes it more and more a risk for you to start answering calls off duty, on vacation, off-call, etc... I mean, there is more and more talk just about the "sleep deprived" liability. Being "off-duty" and "covered" by a partner, etc... may be the only shield we have in the ever increasing litigenous environment.