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Transcript – Episode 10: Your Duty to Bear Witness

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Hello everyone. Thank you for joining our podcast today. This is Phil Lawson, Vice President of Product Development & Risk. Today we will talk about your duty to bear witness, implicit duty to disclose. But before we go into this discussion, I must say that you healthcare professionals are to be congratulated for the noble work that you do, and be recognized for the positive difference that you bring to people’s lives every day. You are all healing change agents, helping people throughout all walks of life, making life better. There is no greater cause than your passionate and skilled contributions to people.

That is why we have your back here at the risk retention group, at the policyholder zone that is insuring them. We are dedicated with your wellbeing and your protection. Our nation truly values your services now and in the future as shown by the following statistics. You may be interested to know that the US department of labor, Bureau of Labor Statistics in 2016, forecasted the following to occur for the next 10 years.

The healthcare field is booming. A look at the fastest growing 30 occupations, of all occupations in the nation indicate that eight are in that allied health sector. This sector contains a variety of healthcare, and behavioral healthcare workers working in related occupations and therapies. These eight occupations, amount to five million social workers and behavioral health workers and health care workers today and 13 million workers in the health care field in 10 years, which is a 32% growth rate over the next decade. That’s over four times the average growth rate compared to all occupations in the US. So you are working as healthcare workers in a truly growing and important and a highly valued field.

Today, we’ll talk about patient informed consent and malfeasance risk. In other words, your duty to bear witness, implicit duty to disclose to the client. If you’re aware of illegal activity in your practice or by your employer or supervisor, you must report it immediately, including to your State License Board. Your job security is far less important than possible criminal prosecution against you, your loss of license, and certain civil litigation against you. Before I get into this any further, I want to share two proverbs with you. One is right and one’s wrong. Here’s the wrong one first. It is better to remain silent and be thought a fool than to talk and remove all doubt. The right proverb would be, tell me and I’ll forget, show me and I’ll member, involve me and I will understand.

The key theme in all of this is that the practitioner in healthcare including doctors, and allied health workers have an implicit duty to disclose. No doctor or allied health practitioner can treat a patient, unless that patient grants permission. The patient’s consent and therefore permission arises from the patient’s decision based on full disclosure so that the patient’s wishes and medical treatment are consistent.

A landmark 1957 US legal decision merged the word consent with the term informed consent, whereby medical practitioners have a duty to disclose, “any facts which are necessary to form the basis of an intelligent consent by the patient to proposed treatment.” In other words, again, any facts which are necessary to form the basis of intelligent consent or making a decision by the patient to the proposed treatment. This means that the facts, the risks, the benefits of treatment, the interaction, and alternatives must be disclosed. The key mode of practice as decided by the court is that the patient must be allowed the opportunity to evaluate the options, evaluate the risks, and evaluate the benefits in order to make an informed and independent choice. So we have consent forms that are required for prior treatment. When these consent forms were signed by the patient, the consent forms become a testament, as the evidence that the patient was informed, and has given permission for the treatment described in the consent form.

The consent forms protect patient rights, not the healthcare provider. The patient does not waive the right to sue the doctor, the healthcare provider, the practice, the clinic, or the hospital for malpractice. In the majority of states, the patient or plaintiff, in cases dealing with a lack of informed consent may maintain a legal action based on a battery. For example, the appellate court of New York state held that uninformed consent is tantamount to no consent at all. The courts have long accepted that a doctor or other health care professional need not inform the patient of all remote risks or consequences of treatment or procedure. However, there is a duty to report and to reasonably inform the patient of recognized risks or potential adverse reactions arising from interaction or treatment. So, in perspective, what happens if, say a health care worker we’ll call Judy, who’s an independent contractor, not a real name or maybe another employee in a healthcare agency knows about a supervisor named Bob, not his real name.

Bob has a history of sexual misconduct, and inappropriate behavior with patients, who continues to abuse patients. Yet Judy remained silent and does not warn patients, nor report the activity. This actually occurred and I’ll share with you some details in a minute. Judy’s status as an employee, maybe as a student or an independent contractor does not matter. While the plaintiff sued Bob and the practice, the resulting lawsuit named Judy as well. Plaintiffs will throw out a wide net. The lawsuit filed against Judy alleged that Judy was grossly negligent, willful, and vicariously liable for her conduct by not reporting the inappropriate activity. It can be argued that Judy had a common law duty to warn and report, as opposed to any statutory duty. Judy knowingly about Bob’s activity and remaining silent about it, made her guilty in the eyes of the plaintiff and can be construed as complicity.

It’s up to the court to decide. This makes Judy a de facto accessory, criminally. The resulting malfeasance arising from Judy’s inaction makes her an accessory in aiding and abetting Bob as his subordinate. Even if criminal charges are not filed against Judy at the civil trial, Judy will be deposed, and provide damaging testimony. The plaintiff’s pleadings will invariably weigh against Judy and Judy’s failure to notify and report. Judy will be swept up in the juries, discussed for the entire situation, be subjected to the same level of liability as Bob, because Judy shall be deemed part of the case as an accessory at minimum, civilly. Legal defense for Judy or other allied health workers in these types of cases, typically sees $50,000 in indemnity and legal fees could be well over a $100,000. Most professional liability insurance policies do not cover these claims.

The risk retention group’s professional liability policy covers these claims, starting from the first dollar with no deductibles. This particular case involved Judy as an independent contractor who is our insured, who was not covered by her employer’s insurance liability policy. So it’s a good thing she had a policy with the RRG. However, the risk retention group professional liability policy that she paid a $190 a year for, it was good for her in that it responded to her defense, and it has already spent over 72,000 for her legal defense. Meanwhile, one of her medical doctor practice owners escaped back to India. So he was not prosecuted. The other one is currently serving a prison sentence of 12 years, for his boundaryless behavior.

In closing, the point of this article is to stress the fact that you must report issues of this nature to the officers of the practice, and outside of the practice. Contact your State Licensing Board, do this in writing. The employer’s insurance most probably will not cover you, if you are named as a defendant regardless. If you have a professional liability policy with any carrier other than our risk retention group professional liability policy, you probably will not have coverage, even if you do a report. You will be one, subjected to a loss of license, and possible criminal prosecution, and certainly costly civil litigation costs. Thank you for listening and that concludes our podcast today.

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Preferra Insurance Company RRG, formerly NASW Risk Retention Group (NASW RRG) shares information based on our helpline inquiries, corresponding claims history, and an understanding of a varying nationwide professional state regulatory environment.

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