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Montana Dental Association

Medical-Legal Issues

Larry E. Riley, JDA. Craig Eddy, MD, JD, FACS

4/30/2010

garlington|lohn|robinson

(406) 523-2500aceddy@garlington.comleriley@garlington.com

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Type of Suits or IssuesMedical Office Might See

Employee / HR SuitsWrongful Discharge from Employment Act

Employment Discrimination

Malpractice

Regulatory IssuesMontana Board of Dentistry

Slip and Fall / General Liability

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Ounce of PreventionBest Insurance is not for Sale

Communication with patient and staff

Rapport

Listening

Attitude

Not Rude and Rushing

Good Charting - Medical and HR

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They will remember how you made them feel

They may not remember what you said

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Human Resources - For Office Practices

Montana is Employee Friendly– Employer Unfriendly

It is not an employment at will state– After Probationary period can only fire for

good cause

Employment cases are very expensive

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Prevention - HRGood Office Policies

– Make sure handbook is available– Follow your policies

• Under WDEA – otherwise lawful termination is wrongful if you don’t follow your own policies on discharge and termination

Good CommunicationFair and Even HandedAddress Workplace Issues Promptly

– Hostile work environment– Harassment – gender and otherwise

Use Checklists– Termination– Discipline

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Job DescriptionsBusiness reason why the job existsQualificationsPrimary duties/essential functionsReview on an annual basisUse as measuring stick for annual

evaluationsExempt or Non-exemptProbationary period - 6 months

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Employee PoliciesNo Discrimination/HarassmentGrievance ProcedureWorkweek definedPayment of final wages:  next payroll

day or within 2 weeks of last day, whichever is sooner

No expectation of employee personal privacy when using practice computers/phone/fax

Acknowledgement of UnderstandingAbility to extend probationary period if

necessary

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Wage and Hour IssuesWage and Hour / FLSA

Exempt—Administrative, Executive, Professional (with special rules for IT employees)|

Employee v. Independent Contractor

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Wrongful Discharge What Constitutes a Wrongful Discharge?

– Discharging an employee for refusing to violate public policy or in retaliation for reporting a violation of public policy

– Discharging an employee without good cause– Discharging an employee in violation of the employer’s

written personnel policies

What Constitutes a Legitimate Discharge?– Legitimate economic reasons

– Disciplinary / Performance concerns

– During a probationary period of employment, the employment may be terminated at the will of either the employer or the employee on notice to the other for any reason or for no reason

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Wrongful Discharge Damages Up to 4 years lost wages & fringe benefits + interest, calculated

from the date of discharge

Fringe benefits – Employer-paid vacation leave & sick pay– Medical insurance– Disability & life insurance benefits– Any pension plan pay

Award is discretionary

NO emotional distress, pain & suffering, or other compensatory damages

Employee has a statutory duty to mitigate his or her damages– Employee’s earnings or earnings an employee could have made

may be deducted

IF employee was discharged for refusing to violate public policy or in retaliation for reporting a violation of public policy

– the employee may seek punitive damages.

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Discrimination: 1. The act of discriminating. 2. The power to recognize or draw fine distinctions. 3. Treatment or consideration based on class or category rather than individual merit; partiality or prejudice.

Am. Heritage College Dictionary (3d ed. 1997)

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Why should employers be concerned about discrimination?

Exposure to liability– Damages for front pay and back pay– Damages for emotional stress– Punitive damages (federal claims only)– Attorney’s fees– Transaction costs high

Bad PublicityLost Productivity

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THE PROTECTED CLASS

DISABILITY

RACE/ COLOR

NATIONAL ORIGIN/

CITIZENSHIP

RELIGION/ CREED

AGE GENDER

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How does discrimination occur?

DISPARATE TREATMENT

DISPARATE IMPACT

FAILURE TO ACCOMMODATE

RETALIATION

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Age DiscriminationAge Discrimination in Employment Act 1967

40 years or older

The Older Workers Benefit Protection Act of 1990 (OWBPA) amended the ADEA to specifically prohibit employers from denying benefits to older employees.

Employers are permitted to coordinate retiree health benefit plans with eligibility for Medicare or a comparable state-sponsored health benefit.

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What constitutes Sexual Harassment? Unwelcome sexual advances,

requests for sexual favors and other verbal or physical contact of a sexual nature constitutes sexual harassment when:

• it is a condition of employment;• it is a consequence of employment;

or• it is an offensive job interference.

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HARASSMENT FACTS The victim or harasser may be a man or a woman and does

not have to be of the opposite sex (or a different protected status)

The harasser may be a supervisor, a co-worker or even a non-employee.

The victim does not have to be the person harassed, but could be anyone affected by the conduct.|

Actionable harassment may occur without economic injury.

The harasser’s conduct must be unwelcome to the victim.

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When is the employer liable for discriminatory harassment?

Was conduct based on a protected status?

Was conduct objectionable to the victim?

Was conduct severe or pervasive?

HARASSER ACTED AS AGENT FOR EMPLOYER = LIABILITY

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AGENCY LIABILITY

For actionable harassment, there is no liability if:

The employer exercised reasonable care in preventing the harassment

The employee failed to take advantage of corrective opportunities.

For actionable harassment, there is no liability if:

Reasonable Care =

Make it clear that discrimination or harassment is not tolerated.

Define prohibited conduct broadly/ plainly. Simple and direct complaint procedure- include

alternative complaint paths. Measures that instill confidence and candor. Make it flexible. Enforce it!!!!

ANTI-HARASSMENT POLICY

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HANDLING SEXUAL HARASSMENT COMPLAINTS

Remember: You must have “good cause” to terminate a non-probationary employee!

Do a reasonable investigation- Document!

Take proportionate action, but don’t makepromises you can’t keep.

Involve the alleged harasser and victim.

Follow your Anti-harassment Policy.

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SIMPLE TIPS FOR AVOIDING HARASSMENT CLAIMS

Do a thorough job hiring employees.

Think before you hit the “send” key.

Separate “work” and “play”Avoid idle time. Create a positive work

environment.

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Malpractice Issues

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General principles of liabilityGood News

– Non-physicians have minimal personal risk• Generally Employees

– Respondeat Superior• Captain of the Ship Doctrine

– Now somewhat in question• Deeper Pockets Available• Generally have good family relationships

Bad News– Ticket to deep pockets of hospital– Captain of Ship Doctrine Eroding

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General principles of liabilityDuty: Arises in 4 main ways

– Common Law– Legislation– Regulatory (CMS, JCAHO)– Hospital and Nursing Policy

Breach (Negligence)

Causation (Connects Breach and Damages)

Damages

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Duty, Breach, Causation, Damages

Plaintiff has Burden of Proof

Preponderance of Evidence

All Elements must be proved

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Montana Medical-Legal Process

Filed and Heard by Medical Legal Panel

Filed State or Federal District Court

Discovery

Expert Witnesses

Mediation

Trial

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Truth – Facts – JusticeIllusive - Not Black and White

People see, perceive and remember the same event differently

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Potential Problems Causing Litigation

Criticizing other health care providersAltered Records Different people have different perceptionsDentistry is not an exact scienceDentistry constantly improving (changing)Jury’s view – through the retrospectoscopeWhat is reasonable in an unusual event?Battle of ExpertsWatch out for the “ordinary” task

– The kind you do without thinking

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Other Issues

What is a “bad outcome”?– Unrealistic Expectations

• Miracle outcomes• Television Society

Sympathetic Patient

Undesirable Nurse or Doctor

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Dental Malpractice Claims Will Always Exist

To err is humanBad ProvidersUnpredictable eventsCatastrophic OutcomesInterpretation of Standard of CareProvider ImpairmentSystems FailMoney involved

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Points of View in a Malpractice Claim

PatientIncident reportDentistPeer ReviewAdministrationInsurance

CompanyPlaintiff LawyerDefense Lawyer

ExpertsMed Mal Panel

Members (6)JudgeJury (12)Supreme CourtBoard of DentistryCriminal

Investigator

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Medical Record Introduction

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Medical RecordYour Best Friend or Worst Enemy

Technical definition

Written evidence of:

– The interactions between and among health care professionals, patients, their families, and health care organizations.

– The administration of tests, procedures, treatments, and patient education.

– The results of, or patient’s response to, diagnostic tests and interventions

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Medical RecordPurpose

AccountabilityCommunication to other providers

– Sequential picture of patientMemory of facts – 5-10 years laterResearchSatisfaction of Legal and Practice

standardsReimbursementEducation

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How Bad Charting Hurts What poor documentation allows the

plaintiff to do– Your word against theirs– Patient Recall Generally Poor

• They can confabulate, you cannot refute– Duke Study in 2003– Australia Study in Radiology 2003

– If they have had any poor result jury may be sympathetic

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How Good Charting HelpsNever any question of facts or

timesDemonstrates to jury

– Expertness– Trustworthiness– Professionalism

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Elements of Effective DocumentationMedical Record Mandatories

Use a common vocabulary.

Write legibly and neatly.

Use only authorized abbreviations and symbols.

Employ factual and time-sequenced organization.

Document precisely, accurately and completely, including any errors.

Dated and Timed

Explain Late Entries

Objective and without editorials

Unaltered

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What if Medical Record Incomplete??

3 File Drawers of Information

– What is Written Down

– What You Actually Remember

– Usual Custom or Practice

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Medical Record Pitfalls

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Medical Record Pitfalls

Non-Standard AbbreviationsErasures, Overwrites or

WhiteoutsUnexplained Late EntriesInk that does not photocopyNegative Editorial Comments

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Example of a Poor Medical Record

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Example of a Poor Medical Record

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Example of a Poor Medical Record

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Electronic Medical RecordPointers

– Don’t depend on drop down menus• Use the comment section liberally

– Be sure to have somewhere to scan or somehow capture extra pieces of paper

– Be sure to justify late documentation

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Lawsuit TriggersProviders who are sued the most

– Rude– Rushing– Failed to answer questions

Providers sued the least– Concerned– Accessible– Willing to communicate

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Apology and Montana LawThe Montana law

Understanding the difference between an expression sympathy and an apology.

An effective and well done apology is powerful medicine. 

The lack of an apology generates incredible anger. 

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What to do in case of Lawsuit

House of God: Take your own pulse first

Get Help– Talk to your employer immediately

Seek good counsel– You are out of your element

Do not admit anything immediatelyNever talk aloneDon’t sign anything

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Requests from the AudiencePatient Dismissal

What to do in a Medical Emergency

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Questions?

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ConclusionThe Hard Things in Life

The Trauma of Being Sued

Options if you don’t like something– Change the thing– Change your attitude

Happiness– Belong to people– Accept pain– Know you make a difference– Don’t pursue happiness: do the things that create it

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ConclusionJoy comes from our

inside and its ours if we have the will to find it

Tragedy is a human legacy

Joy is a human creation

Leon Uris

Life is mostly froth and bubble but two things stand like stone

Kindness in another’s trouble

Courage in your own

– Adam Landsay Gordon

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Three Poems to Share

People Who Take Care

Hippocrates Child