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Transcript – Episode 6: Negligence

Avoiding Malpractice Tips

Resources and References

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Hello everyone. Thank you for joining our podcast today. This is Phil Lawson, Vice President of Product Development and Risk. Today we’ll talk about negligence is spelled more than simply malpractice. Avoiding malpractice. These are tips for healthcare workers to manage risks. But before I begin, 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’re 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’s why we have your back here at the Risk Retention Group that the policyholders own that’s insuring them. We are dedicated to your wellbeing and to your protection.

Our nation truly values your services now as well and into the future, as shown by the following statistics. You may be interested to know that the US Department of Labor, the Bureau of Labor Statistics in 2016 forecasted the following to occur for the next 10 years through 2026. The healthcare field is indeed booming. A look at the fastest growing 30 occupations of all occupations of the nation indicates that eight are in the allied health sector alone. This sector contains a variety of healthcare and behavioral healthcare workers who work in a variety of related occupations and therapies. These eight occupations account for 4.9 million workers today and over 13 million workers in 10 years. That’s a 32% growth rate over the decade. That is over four times the average growth rate compared to all other occupations in the United States. So you’re working in a truly growing and very important and highly valued field.

So what do we mean by negligence is spelled more than simply as malpractice? Well, negligence is a duty, breach, damage, and proximate cause. Those are the elements. Avoiding malpractice and tips for social workers to manage risk is important. You’re an expert in your healthcare profession. As such, you are held to that specific standard of care for which you’re licensed. Each expertise has a standard of care. This is the practitioner’s therapy side of the delivery service model. As a provider of such services, you are also held accountable for a series of non-therapeutic responsibilities associated with your practice. Some examples include liability for the patient and even landlord property, patient information and physical safety with whom you interact. Negligence includes malpractice and many other liability perils. Malpractice is the most common among practitioners. The elements of negligence, as I said, are duty, that depends on the standard of conduct specific to your occupation, breach, the breach of that duty, proximate cause where it’s linked to you, your action or inaction, and damage.

The overall malpractice characteristics include a failure to provide the required standard of care commensurate with your particular licensed professional occupation and that this failure results in some sort of damage, injury or death. Any healthcare professional can be sued for malpractice no matter how trivial the lawsuit complaint appears. The patient’s lawyer can define malpractice subjectively. A lawsuit can merely refer to the patient’s perception of wrongdoing without supporting factual evidence. If the patient merely feels anything relating to the scope of treatment or interaction with a healthcare professional provider was carried out incorrectly or not carried out at all, it’s efficient grounds to support a lawsuit. The following are the required elements of negligence and are described in the context of treatment that festers into malpractice lawsuits. The plaintiff, the patient who brings a lawsuit against you through counsel, must prove each element in the lawsuit.

In any event, and regardless of culpability, the defendant, that’s you or your insurance carrier insuring you, must pay the legal fees to dispute the charges and defend you until the lawsuit ends, either trial or through a settlement. So when a lawsuit is filed, the meter runs. There are legal defense fees, no matter what. Duty, this is graded when the healthcare professional agrees to accept the patient and establishes a course of treatment with the professional relationship between the two parties. The duty is to create, maintain, and deliver professional services within the occupationally defined standard of care commensurate with that specific healthcare professional’s occupation. Breach, this is the healthcare professional’s failure or as often referred to in lawsuits, as a dereliction of duty to meet the standard of care and to apply the appropriate diagnostic preventative and therapeutic measures. It’s otherwise called malpractice. Proximate cause, this specifically links wrongful actions or non-actions arising from the healthcare professional that was directly connected to the outcome or resulting change.

The key element is causation, whereby the damage arose directly from the professional’s practice behavior. In other words, quote-unquote, but for the action or inaction of the healthcare professional, there would not have been damage. There is a distinction between the word cause. The proximate cause is a legal connection of blame whereby the professional has some probability of contributory negligence to the damage arising from the duty breach. This is debatable throughout the lawsuit and is subjective. Oftentimes when indemnity settlements are reached, a portion of the damage is blamed on the healthcare professional and damage claims are paid in that proportion plus legal fees, particularly when you have multiple defendants. Cause and fact is a stricter measure and factually links to duty breach committed by the healthcare professional to the patient damage. In other words, this cause and fact is a smoking gun analogy where there is absolutely no doubt of cause and who is responsible for the damages.

Damage, this is the list of harms to the patient. These include economic harm and non-economic or soft categories. Again, these include economic or hard categories, and non-economic, soft categories. They can be physical, emotional or financial. The main categories are medical such as lost wages, treatment costs and even other losses, including first party and third party costs and pain and suffering causing social and psychological harm. When we defend lawsuits, there are really two categories from the insurance carrier’s point of view. One is legal defense fees and expenses related thereto, and the other is called indemnity and that’s where a settlement or a damage award is either negotiated or provided by the court.

Negligence lawsuits have two expensive components, as I said, indemnity and legal fees to defend. They do not have to be practice or therapy-related. Damages arising from negligence can be your patient’s stolen handbag, for example, in your office, or maybe you’re holding a session or a conference in a hotel conference room, an instructional course, for example, in which you are conducting a session and maybe a stolen laptop occurred there or a stolen handbag or a cell phone that has your patient phone numbers. Even a fire in your office causing property damage to your landlord. Maybe a slip and fall by your visitor to your office or a dog bite in your office make you potentially negligent. There are many carriers that will not cover you for a slip and fall of a client in your office unless professional services are being delivered at that instant. The Risk Retention Group covers all those perils, but there are many carriers. Most carriers do not cover damages like a slip and fall or a dog bite or something that occurs in your office unless professional services are being rendered at that instant. So, read your policies very carefully.

It’s important to inventory your practice risk management safeguards. Think of this as a concentric circle, where at the center is your practice. It’s your therapy practice model. This is focused on patient malpractice coverage. That’s where your professional liability insurance response to a wide list of named perils. On the next circle outside of that, consider the venue of the practice. This could be your office. There could be a hotel conference room where you’re conducting a session. This is when general liability insurance is very important to protect you from a variety of liability hurdles, like maybe a dog bite for example, or a slip and fall. Third, consider your risk arising from lost or stolen patient information. That’s where you need a cyber liability insurance policy. The Risk Retention Group provides the best policies for professional liability, general liability and cyber liability in the country. Cyber liability arises from your third-party data service providers, a warehouse or a mover holding your paper records, for example, or your computer devices or phones that contain patient phone numbers or your network provider containing digital records.

There’s no doubt that healthcare work is a noble profession with implicit values of service, human dignity, integrity, and clinical competence. Despite all of this sincere devotion provided by healthcare workers and whether or not they’re employed with an agency, a government entity, by a company, or as an individual, they must thoroughly evaluate the risks. You must review your own insurance policies and assess your risks to properly identify the gaps existing in your insurance coverage. The healthcare worker is a target when lawsuits are filed. If you do not have the proper insurance coverage, you are responsible for the legal defense costs regardless of damages, and of course, all proven damages linked to you. Thank you for listening and that concludes our podcast today.

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