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Transcript – Episode 8: Risk and Claims Helpline Experiences

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 at risk. Today we will talk about helpline experiences. We share some experiential feedback from the risk retention group helpline as a free service for risk retention insurance, and the risk retention insurance who call the risk retention helpline with questions regarding a variety of practice interactions and risk mitigation in general guidance. RG or risk retention group insurers rely on the risk retention groups, a helpline for legal guidance, which helps practitioners mitigate risk and deliver better services within their respective practice models.

Before I proceed, I do want to 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 healing change agents helping people throughout all walks of life, making life better. There’s no greater cause than your passionate and skilled contributions to people. That is why we have your back here at the risk retention group, that the policyholders own, that is ensuring them. We are dedicated to your wellbeing and your protection. Our nation truly values your services now and into the future 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. The healthcare field is booming. I’ll look at the fastest growing three occupations of all occupations in the United States indicate that eight are in the allied health sector. This sector contains a variety of healthcare and behavioral healthcare workers in a wide variety of related occupations and therapies. These eight occupations account for 5 million workers today and over 13 million workers in 10 years. That’s a 32% growth rate over the decade, which is over four times the average growth rate compared to all occupations in the United States. So you’re truly working in high growth and a very important and highly valued field.

Now back to the helpline experiences. Again, risk retention groups rely on our helpline that we have set up with our claims adjudication company for legal guidance, which helps practitioners mitigate risk and deliver better services within their respective practice models across the healthcare industry. The most frequent categories of helpline questions that we encounter fall within the following categories: subpoenas, deceased clients, the release of information and board complaints. Those are the foremost important or most frequent categories that we experience.

So let’s talk about subpoenas. If a judge doesn’t sign the subpoena, it’s not valid, right? We get a lot of those questions. So I don’t have to show up in court? Well, that’s wrong, subpoenas are rarely signed by a judge. Usually, they’re signed by the clerk of the court or by the attorney as an officer of the clerk. If you do not appear as corrected in a subpoena, you could be found in contempt of court, which could result in a fine or jail time. So when you get a subpoena, call your insurance carrier and they’ll assign an attorney to advise you.

Here’s another question we experienced with respect back to subpoenas. What do I have to bring to the deposition or the court? You can be subpoenaed for information. You can be subpoenaed to provide a deposition. Bring whatever the subpoena tells you to bring. Most often that will be your entire file or the client in question. Be careful what you do with the digital file or the paper file. If you have a third party handle the client file information and a breach occurs, you will be prosecuted under [inaudible] which is a law that was passed by Congress which holds the healthcare worker liable for client information security breaches. The risk retention group’s cyber liability products will ensure your risk for these incidents.

Here’s another question with respect to subpoenas. I just told my client I won’t be involved in any court proceedings, but I got a subpoena anyway. I don’t have to appear, do I? Wrong. You have to appear. A subpoena is a court order and you have to do what it says.

Here’s another question with respect to subpoenas that we see a lot, do I have to produce my chart? Well, yes, that’s part of the documentation. If the subpoena directs you to, then you have to. However, if you believe that releasing the chart would not be in your client’s best interest, then you need to receive some legal advice. For example, in a child custody case, if the child has made statements against one parent that could cause that parent to punish the child or damage the reputation of the divorcing spouse, then you should ask for attorney assistants to have portions of the chart redacted, which means removed or reviewed in a camera by the judge in the matter for a final ruling. We see a lot of this where you have a couple going through a divorce and they’re trying to get dirt on one another and then poor healthcare workers caught between them.

Okay. The second category is deceased clients. Here’s a question that we receive a lot on that: my client committed suicide. Can I go to the funeral? Well, if you believe that there will be hard feelings from the family because they believe that you failed to prevent the client from suicide, it may disturb them during their grieving process if you see them at the funeral. Perhaps an informal telephone call to one or more of the client’s family members well before the funeral to assess prospective action will provide you with signals and clarification for prospective action. You could very well be named as a defendant in a wrongful death lawsuit. So be very careful.

There’s another question that we receive on deceased clients very often. My client passed away unexpectedly and now his mother wants to talk to me. Should I call her back? No. HIPAA privacy survives death, and unless you have a release from the client to speak to his mother prior to his death, you cannot talk to her now. The only person you can legally talk to is the personal representative of the deceased client’s estate, and that person can sign a release for you to speak to anyone and then release a copy of your chart if requested. Make sure that you get a copy of the court order appointing that person as a personal representative of the estate.

Here’s another question with respect to deceased clients we receive: my client committed suicide over the weekend and my boss wants me to call the family and find out what happened. Should I? Again, no. HIPAA Privacy survives death. You cannot talk to anyone without a release, and the family probably does not want to talk to you right away anyway. Wait for them to come to you, and use the same rules that we outlined. Only a person you had consented to talk to, you could talk with. But the personal representative is better.

Release for information. Here’s a question that we receive for that. I got a release for records for my client’s attorney. Now, what do I do? It’s worth a phone call to the client to make sure that they understand that if you release the records, all of their information is going to be available. You do have the option to prepare a high-level summary of your care or treatment, for example, the date the treatment started, how often it occurred, general topics of discussion during sessions of what actions were taken, and include your intake form if you want, but be prepared for the attorney to come back and say, that’s not enough information. They want to see the entire client file. If your client agrees, then you can release the records.

We get a lot of questions about billing, such as can I bill for preparing the records to send out? Well, each State has statutes concerning medical records, and what is appropriate, and the appropriate amount of the bill, so that varies by State. You can only bill according to those State statutes. However, you cannot withhold a copy of the records if the client can’t pay or is behind in their payments to you. They are entitled to a copy of their chart regardless of their financial status with you because it’s ultimately their property.

Board complaint. That’s our final category for today. Here’s a question that we encounter frequently. “I got a letter from the board of social workers for my State. Now what?” Well, you certainly can answer the complaint on your own, but that is not advisable. You may inadvertently get yourself into more trouble by stating something you did not intend to say or that is interpreted incorrectly. You should contact the risk retention group helpline immediately and ask for an incident report form, and send the board letter with a form is directed by the risk retention group, which shall assign a licensed attorney in your State for your defense.

Just so you know, licensing board cases, they typically average 10 months in duration to settle, and usually, we see $1,200 to $1,500 that the insurance company or risk retention group pays for legal defense fees on the insured’s behalf, and the typical insurance policy is about $150 to $200 a year. But be prepared for a long delay in settlement while resolving a licensing board issue, because there’s a lot of bureaucracy where the respect to the State, and every State, and that’s why it takes about 9 to 10 months on average.

Another question, and final question, onboard complaints. “My former client is angry with me and is threatening to file a complaint against me. Can I do anything to stop that?” Well, no, you can’t. People have a right to file a complaint or a lawsuit against you if they feel that you hurt them in some way. As noted above, though, you can either answer the complaint yourself or contact the RG helpline to arrange for legal counsel to be assigned, which we wholeheartedly recommend. In the meantime, do not agonize over what has not happened yet. Prospectively consider the facts as they arrive in the board complaint.

In closing, you as a policyholder of the risk retention group shall be protected if you own a risk retention group professional liability insurance policy, and a risk retention group cyber liability policy, in the event that the third party loses or breaches your client files. Thank you for listening, and that concludes our podcast today.

COVID-19 Notice

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.

Due to COVID-19, many states have implemented or waived specific regulations; it is the individual professional's responsibility to research, implement, and monitor those regulations; and apply our risk management content as a consideration in your practice environment. Do not interpret this risk management material as any means to alter professional training, standards, nor any ethics information provided by your professional association.

Please understand, the NASW RRG makes no representations or warranties other than those stated to our current policyholders in the insurance policy contract. Please contact us if you have further questions.