Patrick T. O’Rourke

Just when you thought you had heard the last about the Health Insurance Portability and Accountability Act (HIPAA), the Department of Health and Human Services (HHS) has promulgated new rules for notifying individuals when their protected health information has been breached. These “breach notification” regulations implement provisions of the Health Information Technology for Economic and Clinical Health (HITECH) Act, passed as part of the American Recovery and Reinvestment Act (ARRA) of 2009. The regulations became effective in September.

The regulations require covered entities (health plans, healthcare clearing houses, and healthcare providers) to promptly notify individuals affected by a breach, as well as the HHS secretary and the media in cases in which a breach affects more than 500 individuals.  Breaches affecting fewer than 500 individuals must be reported to HHS annually. Notably, breaches will be posted on the HHS Web site. The regulations also require business associates to notify covered entities with whom they work of breaches.

All Breaches Not Equal

Any impermissible acquisition, access, use, or disclosure of unsecured protected health information that compromises the security or privacy of the information triggers the new breach notification requirement. Health information is unsecured only if it is not encrypted or destroyed. Security or privacy is compromised when a breach poses a significant risk of financial, reputational, or other harm. To determine whether a significant risk of harm exists, a covered entity must document a fact-based assessment of the risk involved, including evaluation of:

• What happened to the information (e.g., Was a laptop stolen and never recovered or lost but subsequently found? Was an unauthorized access intentional or accidental?);
• The nature of the information (e.g., Did the information contain Social Security numbers and other data that could lead to identity theft? Did the information involve sensitive health information?);
• Steps that could mitigate the potential harm (e.g., call the recipient and request destruction of the information and confirmation); and
• The number of individual identifiers present in the information (e.g., Did the information have name, birth date, and Social Security number, or only a medical record number?).

Consequently, breaches that do not involve information that can be used to identify a specific individual are not reportable. Moreover, inadvertent breaches to other covered entities pose a low risk of harm. For example, if medical records are inadvertently faxed to the wrong pharmacy or other healthcare provider, there is low risk of harm because the recipient is independently required to comply with HIPAA.

Additionally, the regulations expressly exclude the following events from the definition of a breach:

• Unintentional, good-faith access by an employee or agent if the information has not been redisclosed. An example would be mail sent to or opened by the wrong staff member;
• Inadvertent disclosures among persons otherwise authorized to access protected health information within the same entity, provided the information is not redisclosed; and
• When an unauthorized recipient could not have retained the information (e.g., paperwork given to the wrong patient but returned immediately without being read).

In each of the examples above, a covered entity does not need to provide breach notification because a breach has not occurred under the regulations.

Notification Requirements

Unless law enforcement makes a written request for a covered entity to delay notification, covered entities must provide written notice to each individual affected by a breach as soon as possible but no later than 60 calendar days from discovery of the breach. Importantly, a covered entity is liable for appropriate notification if they know, or should know, of a breach. Moreover, the knowledge of an employee is imputed to an employer. Further, business associates must notify covered entities of any breaches. Thus, policies and procedures should include training of a covered entity’s workforce and ensuring business associates’ compliance.

While there is not a prescribed form for notice, the regulations do require some specific elements, including:

• Description of the breach and the dates, if known;
• Description of the protected health information involved;
• Steps the affected individual should take to protect themselves (e.g., cancel credit cards);
• Description of the steps being taken by the covered entity; and
• Contact information to obtain more information, which must include a toll-free telephone number, e-mail or postal address, or Web site.

If 10 or more individuals are involved for which the entity does not have adequate contact information, notice can be accomplished by a conspicuous posting on the entity’s Web site for at least 90 days, or a posting in print or broadcast media. In either case, an active toll-free telephone number where individuals can find out if they were affected must be available for 90 days.

If a breach involves more than 500 people from any one state, notification must include prominent media outlets. Moreover, the covered entity must notify the HHS secretary at the time notice is provided to affected individuals. Breaches involving fewer than 500 individuals must be reported annually through the Office of Civil Rights Web site.

Sanctions and Penalties

HHS is required to audit, investigate, and impose civil monetary penalties for offenses resulting from willful neglect. Fortunately, HHS has indicated that it will not be imposing sanctions for unintentional violations of the notification requirements until March. This gives providers some time to implement the necessary processes. Nonetheless, it is important to implement compliance processes now, as the penalties for noncompliance can be severe. Under the new law, penalties are tiered based on knowledge, and are capped at $1.5 million annually.

For more information about HIPAA, visit www.hhs.gov/ocr/privacy. TH

Patrick T. O’Rourke works in the Office of University Counsel at the University of Colorado Denver. Kari Hershey is a public relations consultant with Budman & Hershey, LLC, in Denver.

Just when you thought you had heard the last about the Health Insurance Portability and Accountability Act (HIPAA), the Department of Health and Human Services (HHS) has promulgated new rules for notifying individuals when their protected health information has been breached. These “breach notification” regulations implement provisions of the Health Information Technology for Economic and Clinical Health (HITECH) Act, passed as part of the American Recovery and Reinvestment Act (ARRA) of 2009. The regulations became effective in September.

The regulations require covered entities (health plans, healthcare clearing houses, and healthcare providers) to promptly notify individuals affected by a breach, as well as the HHS secretary and the media in cases in which a breach affects more than 500 individuals.  Breaches affecting fewer than 500 individuals must be reported to HHS annually. Notably, breaches will be posted on the HHS Web site. The regulations also require business associates to notify covered entities with whom they work of breaches.

All Breaches Not Equal

Any impermissible acquisition, access, use, or disclosure of unsecured protected health information that compromises the security or privacy of the information triggers the new breach notification requirement. Health information is unsecured only if it is not encrypted or destroyed. Security or privacy is compromised when a breach poses a significant risk of financial, reputational, or other harm. To determine whether a significant risk of harm exists, a covered entity must document a fact-based assessment of the risk involved, including evaluation of:

• What happened to the information (e.g., Was a laptop stolen and never recovered or lost but subsequently found? Was an unauthorized access intentional or accidental?);
• The nature of the information (e.g., Did the information contain Social Security numbers and other data that could lead to identity theft? Did the information involve sensitive health information?);
• Steps that could mitigate the potential harm (e.g., call the recipient and request destruction of the information and confirmation); and
• The number of individual identifiers present in the information (e.g., Did the information have name, birth date, and Social Security number, or only a medical record number?).

Consequently, breaches that do not involve information that can be used to identify a specific individual are not reportable. Moreover, inadvertent breaches to other covered entities pose a low risk of harm. For example, if medical records are inadvertently faxed to the wrong pharmacy or other healthcare provider, there is low risk of harm because the recipient is independently required to comply with HIPAA.

Additionally, the regulations expressly exclude the following events from the definition of a breach:

• Unintentional, good-faith access by an employee or agent if the information has not been redisclosed. An example would be mail sent to or opened by the wrong staff member;
• Inadvertent disclosures among persons otherwise authorized to access protected health information within the same entity, provided the information is not redisclosed; and
• When an unauthorized recipient could not have retained the information (e.g., paperwork given to the wrong patient but returned immediately without being read).

In each of the examples above, a covered entity does not need to provide breach notification because a breach has not occurred under the regulations.

Notification Requirements

Unless law enforcement makes a written request for a covered entity to delay notification, covered entities must provide written notice to each individual affected by a breach as soon as possible but no later than 60 calendar days from discovery of the breach. Importantly, a covered entity is liable for appropriate notification if they know, or should know, of a breach. Moreover, the knowledge of an employee is imputed to an employer. Further, business associates must notify covered entities of any breaches. Thus, policies and procedures should include training of a covered entity’s workforce and ensuring business associates’ compliance.

While there is not a prescribed form for notice, the regulations do require some specific elements, including:

• Description of the breach and the dates, if known;
• Description of the protected health information involved;
• Steps the affected individual should take to protect themselves (e.g., cancel credit cards);
• Description of the steps being taken by the covered entity; and
• Contact information to obtain more information, which must include a toll-free telephone number, e-mail or postal address, or Web site.

If 10 or more individuals are involved for which the entity does not have adequate contact information, notice can be accomplished by a conspicuous posting on the entity’s Web site for at least 90 days, or a posting in print or broadcast media. In either case, an active toll-free telephone number where individuals can find out if they were affected must be available for 90 days.

If a breach involves more than 500 people from any one state, notification must include prominent media outlets. Moreover, the covered entity must notify the HHS secretary at the time notice is provided to affected individuals. Breaches involving fewer than 500 individuals must be reported annually through the Office of Civil Rights Web site.

Sanctions and Penalties

HHS is required to audit, investigate, and impose civil monetary penalties for offenses resulting from willful neglect. Fortunately, HHS has indicated that it will not be imposing sanctions for unintentional violations of the notification requirements until March. This gives providers some time to implement the necessary processes. Nonetheless, it is important to implement compliance processes now, as the penalties for noncompliance can be severe. Under the new law, penalties are tiered based on knowledge, and are capped at $1.5 million annually.

For more information about HIPAA, visit www.hhs.gov/ocr/privacy. TH

Patrick T. O’Rourke works in the Office of University Counsel at the University of Colorado Denver. Kari Hershey is a public relations consultant with Budman & Hershey, LLC, in Denver.

Just when you thought you had heard the last about the Health Insurance Portability and Accountability Act (HIPAA), the Department of Health and Human Services (HHS) has promulgated new rules for notifying individuals when their protected health information has been breached. These “breach notification” regulations implement provisions of the Health Information Technology for Economic and Clinical Health (HITECH) Act, passed as part of the American Recovery and Reinvestment Act (ARRA) of 2009. The regulations became effective in September.

The regulations require covered entities (health plans, healthcare clearing houses, and healthcare providers) to promptly notify individuals affected by a breach, as well as the HHS secretary and the media in cases in which a breach affects more than 500 individuals.  Breaches affecting fewer than 500 individuals must be reported to HHS annually. Notably, breaches will be posted on the HHS Web site. The regulations also require business associates to notify covered entities with whom they work of breaches.

All Breaches Not Equal

Any impermissible acquisition, access, use, or disclosure of unsecured protected health information that compromises the security or privacy of the information triggers the new breach notification requirement. Health information is unsecured only if it is not encrypted or destroyed. Security or privacy is compromised when a breach poses a significant risk of financial, reputational, or other harm. To determine whether a significant risk of harm exists, a covered entity must document a fact-based assessment of the risk involved, including evaluation of:

• What happened to the information (e.g., Was a laptop stolen and never recovered or lost but subsequently found? Was an unauthorized access intentional or accidental?);
• The nature of the information (e.g., Did the information contain Social Security numbers and other data that could lead to identity theft? Did the information involve sensitive health information?);
• Steps that could mitigate the potential harm (e.g., call the recipient and request destruction of the information and confirmation); and
• The number of individual identifiers present in the information (e.g., Did the information have name, birth date, and Social Security number, or only a medical record number?).

Consequently, breaches that do not involve information that can be used to identify a specific individual are not reportable. Moreover, inadvertent breaches to other covered entities pose a low risk of harm. For example, if medical records are inadvertently faxed to the wrong pharmacy or other healthcare provider, there is low risk of harm because the recipient is independently required to comply with HIPAA.

Additionally, the regulations expressly exclude the following events from the definition of a breach:

• Unintentional, good-faith access by an employee or agent if the information has not been redisclosed. An example would be mail sent to or opened by the wrong staff member;
• Inadvertent disclosures among persons otherwise authorized to access protected health information within the same entity, provided the information is not redisclosed; and
• When an unauthorized recipient could not have retained the information (e.g., paperwork given to the wrong patient but returned immediately without being read).

In each of the examples above, a covered entity does not need to provide breach notification because a breach has not occurred under the regulations.

Notification Requirements

Unless law enforcement makes a written request for a covered entity to delay notification, covered entities must provide written notice to each individual affected by a breach as soon as possible but no later than 60 calendar days from discovery of the breach. Importantly, a covered entity is liable for appropriate notification if they know, or should know, of a breach. Moreover, the knowledge of an employee is imputed to an employer. Further, business associates must notify covered entities of any breaches. Thus, policies and procedures should include training of a covered entity’s workforce and ensuring business associates’ compliance.

While there is not a prescribed form for notice, the regulations do require some specific elements, including:

• Description of the breach and the dates, if known;
• Description of the protected health information involved;
• Steps the affected individual should take to protect themselves (e.g., cancel credit cards);
• Description of the steps being taken by the covered entity; and
• Contact information to obtain more information, which must include a toll-free telephone number, e-mail or postal address, or Web site.

If 10 or more individuals are involved for which the entity does not have adequate contact information, notice can be accomplished by a conspicuous posting on the entity’s Web site for at least 90 days, or a posting in print or broadcast media. In either case, an active toll-free telephone number where individuals can find out if they were affected must be available for 90 days.

If a breach involves more than 500 people from any one state, notification must include prominent media outlets. Moreover, the covered entity must notify the HHS secretary at the time notice is provided to affected individuals. Breaches involving fewer than 500 individuals must be reported annually through the Office of Civil Rights Web site.

Sanctions and Penalties

HHS is required to audit, investigate, and impose civil monetary penalties for offenses resulting from willful neglect. Fortunately, HHS has indicated that it will not be imposing sanctions for unintentional violations of the notification requirements until March. This gives providers some time to implement the necessary processes. Nonetheless, it is important to implement compliance processes now, as the penalties for noncompliance can be severe. Under the new law, penalties are tiered based on knowledge, and are capped at $1.5 million annually.

For more information about HIPAA, visit www.hhs.gov/ocr/privacy. TH

Patrick T. O’Rourke works in the Office of University Counsel at the University of Colorado Denver. Kari Hershey is a public relations consultant with Budman & Hershey, LLC, in Denver.

It happens every now and then: A physician is providing care to a patient and things aren’t going as smoothly as they should. In fact, the situation is deteriorating. The reasons vary, but the end result is almost always the same, and necessary—the physician-patient relationship must be terminated. When, why, and how the relationship ends can make the difference between an amicable separation and years of litigation. Terminating a relationship with a patient, however, presents special challenges for a hospitalist.

Relationship to Nowhere

Certainly, some days are better than others in all relationships, and physician-patient relationships are no exception.

Hospitalists regularly talk to patients about unpleasant realities. Each patient responds to the information differently. More often than not, these difficult conversations lead to a focused plan for dealing with a patient’s health needs. Sometimes, however, a patient refuses to acknowledge the information provided, responds in an abusive manner to the physician or hospital staff, or is simply noncompliant.

An isolated incident is one thing; an ongoing pattern is another. One key consideration is deterioration of trust—for example, when a physician suspects a patient is malingering or seeking drugs, or the patient lacks confidence in the physician.

Another example is when the hospitalist determines that hospitalization is no longer necessary but the patient or their family does not want the patient discharged. In such cases, a hospitalist cannot continue to order care that is not medically necessary. Nonetheless, if the patient experiences a future adverse outcome, the fact that the patient opposed discharge increases the potential for a lawsuit.

This is particularly true when a patient must be forcibly removed from the hospital. In such cases, it is always best to get another hospitalist and the patient’s primary-care physician involved. Having two or three concurring opinions from outside physicians can help temper the liability risk.

Perhaps most difficult is assessing the impact of external factors on a physician’s ability to provide care. A hospitalist might have a difficult time providing objective care to a patient who is covered by the insurance carrier that is investigating him, the friend of a patient who is suing him, or a close friend or family member. Most state medical boards provide physicians with guidance on “boundary issues,” which boil down to a simple principle: If personal feelings have the appearance of interfering with objective assessment or treatment of the patient, the patient’s care is better left to another hospitalist.

Transitioning Care and Abandonment

Deciding that a physician-patient relationship is no longer productive is only the beginning of a termination. Prohibitions on patient “abandonment” restrict a physician’s ability to immediately terminate a relationship. Particularly when a patient objects to discharge, it is extremely important to have a comprehensive post-discharge plan. Such a plan must include ensuring that outpatient care providers are available and willing to see the patient.

Even transitioning care to another provider must be handled carefully. As a hospitalist, you first must ensure that another provider is able to promptly take responsibility. It is not enough to just call the service to assign a new hospitalist. Rather, your responsibilities end only when the new provider sees the patient. Moreover, there should be a “handoff” so you can pinpoint when your obligations to the patient officially end.

Discrimination

Physicians may not refuse to treat a patient for a discriminatory reason. For example, federal and state laws prohibit discrimination based on race, religion, sex, national origin, disability, or age. Additionally, some states prohibit discrimination based on sexual orientation. So while a physician can decide not to treat lawyers (not a protected class), they are not allowed to refuse to treat someone because they are Hispanic, Muslim, or homosexual.

Conclusion

The simple answer to the question of when to terminate a physician-patient relationship is: whenever a conflict arises that is likely to impact the provision of care. Terminating the relationship in a manner that protects both the patient and the physician is the key to reducing potential liability. TH

Patrick O’Rourke works in the Office of University Counsel, Department of Litigation, University of Colorado, Denver.

Image Source: CIMMERIAN/ISTOCKPHOTO.COM

It happens every now and then: A physician is providing care to a patient and things aren’t going as smoothly as they should. In fact, the situation is deteriorating. The reasons vary, but the end result is almost always the same, and necessary—the physician-patient relationship must be terminated. When, why, and how the relationship ends can make the difference between an amicable separation and years of litigation. Terminating a relationship with a patient, however, presents special challenges for a hospitalist.

Relationship to Nowhere

Certainly, some days are better than others in all relationships, and physician-patient relationships are no exception.

Hospitalists regularly talk to patients about unpleasant realities. Each patient responds to the information differently. More often than not, these difficult conversations lead to a focused plan for dealing with a patient’s health needs. Sometimes, however, a patient refuses to acknowledge the information provided, responds in an abusive manner to the physician or hospital staff, or is simply noncompliant.

An isolated incident is one thing; an ongoing pattern is another. One key consideration is deterioration of trust—for example, when a physician suspects a patient is malingering or seeking drugs, or the patient lacks confidence in the physician.

Another example is when the hospitalist determines that hospitalization is no longer necessary but the patient or their family does not want the patient discharged. In such cases, a hospitalist cannot continue to order care that is not medically necessary. Nonetheless, if the patient experiences a future adverse outcome, the fact that the patient opposed discharge increases the potential for a lawsuit.

This is particularly true when a patient must be forcibly removed from the hospital. In such cases, it is always best to get another hospitalist and the patient’s primary-care physician involved. Having two or three concurring opinions from outside physicians can help temper the liability risk.

Perhaps most difficult is assessing the impact of external factors on a physician’s ability to provide care. A hospitalist might have a difficult time providing objective care to a patient who is covered by the insurance carrier that is investigating him, the friend of a patient who is suing him, or a close friend or family member. Most state medical boards provide physicians with guidance on “boundary issues,” which boil down to a simple principle: If personal feelings have the appearance of interfering with objective assessment or treatment of the patient, the patient’s care is better left to another hospitalist.

Transitioning Care and Abandonment

Deciding that a physician-patient relationship is no longer productive is only the beginning of a termination. Prohibitions on patient “abandonment” restrict a physician’s ability to immediately terminate a relationship. Particularly when a patient objects to discharge, it is extremely important to have a comprehensive post-discharge plan. Such a plan must include ensuring that outpatient care providers are available and willing to see the patient.

Even transitioning care to another provider must be handled carefully. As a hospitalist, you first must ensure that another provider is able to promptly take responsibility. It is not enough to just call the service to assign a new hospitalist. Rather, your responsibilities end only when the new provider sees the patient. Moreover, there should be a “handoff” so you can pinpoint when your obligations to the patient officially end.

Discrimination

Physicians may not refuse to treat a patient for a discriminatory reason. For example, federal and state laws prohibit discrimination based on race, religion, sex, national origin, disability, or age. Additionally, some states prohibit discrimination based on sexual orientation. So while a physician can decide not to treat lawyers (not a protected class), they are not allowed to refuse to treat someone because they are Hispanic, Muslim, or homosexual.

Conclusion

The simple answer to the question of when to terminate a physician-patient relationship is: whenever a conflict arises that is likely to impact the provision of care. Terminating the relationship in a manner that protects both the patient and the physician is the key to reducing potential liability. TH

Patrick O’Rourke works in the Office of University Counsel, Department of Litigation, University of Colorado, Denver.

Image Source: CIMMERIAN/ISTOCKPHOTO.COM

It happens every now and then: A physician is providing care to a patient and things aren’t going as smoothly as they should. In fact, the situation is deteriorating. The reasons vary, but the end result is almost always the same, and necessary—the physician-patient relationship must be terminated. When, why, and how the relationship ends can make the difference between an amicable separation and years of litigation. Terminating a relationship with a patient, however, presents special challenges for a hospitalist.

Relationship to Nowhere

Certainly, some days are better than others in all relationships, and physician-patient relationships are no exception.

Hospitalists regularly talk to patients about unpleasant realities. Each patient responds to the information differently. More often than not, these difficult conversations lead to a focused plan for dealing with a patient’s health needs. Sometimes, however, a patient refuses to acknowledge the information provided, responds in an abusive manner to the physician or hospital staff, or is simply noncompliant.

An isolated incident is one thing; an ongoing pattern is another. One key consideration is deterioration of trust—for example, when a physician suspects a patient is malingering or seeking drugs, or the patient lacks confidence in the physician.

Another example is when the hospitalist determines that hospitalization is no longer necessary but the patient or their family does not want the patient discharged. In such cases, a hospitalist cannot continue to order care that is not medically necessary. Nonetheless, if the patient experiences a future adverse outcome, the fact that the patient opposed discharge increases the potential for a lawsuit.

This is particularly true when a patient must be forcibly removed from the hospital. In such cases, it is always best to get another hospitalist and the patient’s primary-care physician involved. Having two or three concurring opinions from outside physicians can help temper the liability risk.

Perhaps most difficult is assessing the impact of external factors on a physician’s ability to provide care. A hospitalist might have a difficult time providing objective care to a patient who is covered by the insurance carrier that is investigating him, the friend of a patient who is suing him, or a close friend or family member. Most state medical boards provide physicians with guidance on “boundary issues,” which boil down to a simple principle: If personal feelings have the appearance of interfering with objective assessment or treatment of the patient, the patient’s care is better left to another hospitalist.

Transitioning Care and Abandonment

Deciding that a physician-patient relationship is no longer productive is only the beginning of a termination. Prohibitions on patient “abandonment” restrict a physician’s ability to immediately terminate a relationship. Particularly when a patient objects to discharge, it is extremely important to have a comprehensive post-discharge plan. Such a plan must include ensuring that outpatient care providers are available and willing to see the patient.

Even transitioning care to another provider must be handled carefully. As a hospitalist, you first must ensure that another provider is able to promptly take responsibility. It is not enough to just call the service to assign a new hospitalist. Rather, your responsibilities end only when the new provider sees the patient. Moreover, there should be a “handoff” so you can pinpoint when your obligations to the patient officially end.

Discrimination

Physicians may not refuse to treat a patient for a discriminatory reason. For example, federal and state laws prohibit discrimination based on race, religion, sex, national origin, disability, or age. Additionally, some states prohibit discrimination based on sexual orientation. So while a physician can decide not to treat lawyers (not a protected class), they are not allowed to refuse to treat someone because they are Hispanic, Muslim, or homosexual.

Conclusion

The simple answer to the question of when to terminate a physician-patient relationship is: whenever a conflict arises that is likely to impact the provision of care. Terminating the relationship in a manner that protects both the patient and the physician is the key to reducing potential liability. TH

Patrick O’Rourke works in the Office of University Counsel, Department of Litigation, University of Colorado, Denver.

Image Source: CIMMERIAN/ISTOCKPHOTO.COM

The Center for Medicare and Medicaid Services (CMS) recently announced federal payor programs no longer reimburses for medical services rendered to treat certain complications of care. Although CMS chose the majority of these complications because they are “reasonably preventable by following evidence-based guidelines,” the national media and patient advocacy groups have adopted the term “never events” to describe them.

Aside from the payment implications, CMS’ new policy affects the liability risk of any person providing inpatient care, regardless of whether a federal payor is involved.

In its press release announcing the new payment policy, CMS stated, “when you enter the hospital for treatment of one medical problem, you don’t expect to leave with additional injuries, infections, or serious conditions that occur during the course of your stay.” Recognizing “some of these complications may not be avoidable,” CMS found “too often patients suffer from injuries or illnesses that could have been prevented if the hospital had taken proper precautions.”

Consequently, “as part of its commitment to improve the quality of care [patients] receive during a hospital stay,” CMS policy is targeted at reducing “hospital-acquired conditions like certain infections, advanced bed sores, or fractures;” and “preventable medical errors, like performing surgery on the wrong side of the body, that should never happen.”

The list of “never events” covered under the CMS payment policy can be organized into three categories: surgical events, medical products and devices, and case management. The following breaks down each category:

Case Management

• Stage III and Stage IV pressure ulcers;
• Air embolism;
• Manifestations of poor control of blood sugar levels; and
• Fracture, burns, joint dislocations, and other injuries occurring from falls or other trauma suffered while an inpatient.

Surgical Events

• Surgery on wrong body part;
• Surgery on the wrong patient;
• Wrong surgery on a patient;
• Retention of a foreign object, such as a sponge or needle, inadvertently left in a patient after surgery;
• Surgical site infection following a coronary artery bypass graft;
• Surgical site infection following bariatric surgery;
• Surgical site infection following certain orthopedic procedures; and
• Deep vein thrombosis or pulmonary embolism following certain orthopedic procedures.

Medical Products and Devices

• Transfusion of wrong blood type;
• Catheter associated urinary tract infection; and
• Vascular catheter associated infections.

It’s easy to see why some of the complications made the list. Wrong-side surgery or surgery on the wrong patient are the quintessential cases where liability is generally uncontested. There is not much one can do to satisfactorily explain to a patient, or a jury, why a surgeon and surgical team operated on the wrong body part.

In other cases, however, such as fatal pulmonary embolus, death can occur even when a patient has been appropriately managed. In fact, medical literature demonstrates a small percentage of patients will develop deep vein thrombosis or pulmonary embolus even after having received therapeutic doses of heparin.

Reasonable Expectations

In any case involving a “never event,” we expect plaintiffs’ attorneys to argue CMS’ reimbursement determination is tantamount to a finding of substandard care. In other words, plaintiffs’ attorneys will argue a physician acted negligently simply because the patient incurred one of the proscribed complications. It’s a compelling argument because the federal government has essentially concluded these complications do not occur if physicians and hospitals pay attention while providing care.

You may have heard the Latin phrase res ipsa loquitur; it translates to “the thing speaks for itself.” Legally, res ipsa loquitur states a rule of law where a jury must presume a defendant was negligent when a certain type of injury occurs. The burden then shifts to the defendant to prove the injury occurred in the absence of negligence. The res ipsa rule originated in 1863 when a plaintiff was struck by a barrel of flour falling from a second-story window. The barrel caused the judge hearing the case to remark, “It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out, and I think that such a case would, beyond all doubt, afford prima facie evidence of negligence. A barrel could not roll out of a warehouse without some negligence. … [I]f there are any facts inconsistent with negligence, it is for the defendant to prove them.” Thus, res ipsa is grounded in the notion everyone knows barrels aren’t supposed to fall from second-floor windows.

Traditionally, res ipsa applied only in a small class of medical malpractice cases, such as retained objects following surgery. In such cases, jurors are just as capable as medical professionals in understanding someone was negligent. For example, it does not take expert testimony to establish there has been negligence when a surgical instrument is left in a patient. There’s simply no compelling medical reason for a surgeon to leave an instrument in a patient’s abdomen.

In contrast, res ipsa generally has not applied in cases involving pulmonary embolus because the process of thromboembolic disease is beyond the average juror’s understanding and death by pulmonary embolus would not give rise to a presumption of negligence.

Where res ipsa applies, it’s a powerful concept. If res ipsa were found to apply to pulmonary embolus cases, the jury would be instructed it is the duty of a physician caring for a post-surgical patient to take care that the patient does not develop pulmonary embolus. Thus, a jury would begin with the presumption a patient would not develop pulmonary embolus absent negligence. The physician would then be left with the burden to prove otherwise. Given such a charge, it is foreseeable a jury could return a verdict against a physician, even if the physician managed the patient’s care appropriately and ordered appropriate prophylaxis.

Take Extra Precaution

To prevent CMS' reimbursement decisions from becoming the functional equivalent of a res ipsa instruction, physicians need to raise the level of precaution they employ against “never event” complications. At the heart of CMS' decision is its statement “never event” complications are “reasonably preventable by following evidence-based guidelines.” When a condition is only “reasonably preventable,” instead of “absolutely preventable,” a defense lawyer retains the ability to argue some patients will develop the condition even when the care was entirely appropriate.

We believe most jurors understand the inherent difficulties of caring for sick patients, and the risks that exist every time a patient undergoes a surgical procedure. The defense lawyer’s challenge is convincing a jury the patient received appropriate care, notwithstanding the complication.

Because CMS refers to “evidence-based guidelines,” physicians must know and follow the guidelines. The first step is becoming familiar with the complications CMS will deny reimbursement, and then regularly review the available guidelines to identify practices to reduce or eliminate the complication. Re-evaluate and update your practice whenever new information becomes available.

A consistent cycle of evaluating and responding to complications will afford the defense lawyer the ability to argue the physician and hospital complied with “evidence-based guidelines” and the patient’s case represents one of the unfortunate incidents where a patient suffers a complication despite receiving the highest-level of care.

In our experience, many providers initially create good systems, but run into trouble in the follow up. Make sure you respond to new or additional information or methods of practice. Without this follow up, CMS’ reimbursement decisions have the potential to create malpractice liabilities for all inpatient providers. TH

Patrick O’Rourke works in the Office of University Counsel, Department of Litigation, University of Colorado Denver.

The Center for Medicare and Medicaid Services (CMS) recently announced federal payor programs no longer reimburses for medical services rendered to treat certain complications of care. Although CMS chose the majority of these complications because they are “reasonably preventable by following evidence-based guidelines,” the national media and patient advocacy groups have adopted the term “never events” to describe them.

Aside from the payment implications, CMS’ new policy affects the liability risk of any person providing inpatient care, regardless of whether a federal payor is involved.

In its press release announcing the new payment policy, CMS stated, “when you enter the hospital for treatment of one medical problem, you don’t expect to leave with additional injuries, infections, or serious conditions that occur during the course of your stay.” Recognizing “some of these complications may not be avoidable,” CMS found “too often patients suffer from injuries or illnesses that could have been prevented if the hospital had taken proper precautions.”

Consequently, “as part of its commitment to improve the quality of care [patients] receive during a hospital stay,” CMS policy is targeted at reducing “hospital-acquired conditions like certain infections, advanced bed sores, or fractures;” and “preventable medical errors, like performing surgery on the wrong side of the body, that should never happen.”

The list of “never events” covered under the CMS payment policy can be organized into three categories: surgical events, medical products and devices, and case management. The following breaks down each category:

Case Management

• Stage III and Stage IV pressure ulcers;
• Air embolism;
• Manifestations of poor control of blood sugar levels; and
• Fracture, burns, joint dislocations, and other injuries occurring from falls or other trauma suffered while an inpatient.

Surgical Events

• Surgery on wrong body part;
• Surgery on the wrong patient;
• Wrong surgery on a patient;
• Retention of a foreign object, such as a sponge or needle, inadvertently left in a patient after surgery;
• Surgical site infection following a coronary artery bypass graft;
• Surgical site infection following bariatric surgery;
• Surgical site infection following certain orthopedic procedures; and
• Deep vein thrombosis or pulmonary embolism following certain orthopedic procedures.

Medical Products and Devices

• Transfusion of wrong blood type;
• Catheter associated urinary tract infection; and
• Vascular catheter associated infections.

It’s easy to see why some of the complications made the list. Wrong-side surgery or surgery on the wrong patient are the quintessential cases where liability is generally uncontested. There is not much one can do to satisfactorily explain to a patient, or a jury, why a surgeon and surgical team operated on the wrong body part.

In other cases, however, such as fatal pulmonary embolus, death can occur even when a patient has been appropriately managed. In fact, medical literature demonstrates a small percentage of patients will develop deep vein thrombosis or pulmonary embolus even after having received therapeutic doses of heparin.

Reasonable Expectations

In any case involving a “never event,” we expect plaintiffs’ attorneys to argue CMS’ reimbursement determination is tantamount to a finding of substandard care. In other words, plaintiffs’ attorneys will argue a physician acted negligently simply because the patient incurred one of the proscribed complications. It’s a compelling argument because the federal government has essentially concluded these complications do not occur if physicians and hospitals pay attention while providing care.

You may have heard the Latin phrase res ipsa loquitur; it translates to “the thing speaks for itself.” Legally, res ipsa loquitur states a rule of law where a jury must presume a defendant was negligent when a certain type of injury occurs. The burden then shifts to the defendant to prove the injury occurred in the absence of negligence. The res ipsa rule originated in 1863 when a plaintiff was struck by a barrel of flour falling from a second-story window. The barrel caused the judge hearing the case to remark, “It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out, and I think that such a case would, beyond all doubt, afford prima facie evidence of negligence. A barrel could not roll out of a warehouse without some negligence. … [I]f there are any facts inconsistent with negligence, it is for the defendant to prove them.” Thus, res ipsa is grounded in the notion everyone knows barrels aren’t supposed to fall from second-floor windows.

Traditionally, res ipsa applied only in a small class of medical malpractice cases, such as retained objects following surgery. In such cases, jurors are just as capable as medical professionals in understanding someone was negligent. For example, it does not take expert testimony to establish there has been negligence when a surgical instrument is left in a patient. There’s simply no compelling medical reason for a surgeon to leave an instrument in a patient’s abdomen.

In contrast, res ipsa generally has not applied in cases involving pulmonary embolus because the process of thromboembolic disease is beyond the average juror’s understanding and death by pulmonary embolus would not give rise to a presumption of negligence.

Where res ipsa applies, it’s a powerful concept. If res ipsa were found to apply to pulmonary embolus cases, the jury would be instructed it is the duty of a physician caring for a post-surgical patient to take care that the patient does not develop pulmonary embolus. Thus, a jury would begin with the presumption a patient would not develop pulmonary embolus absent negligence. The physician would then be left with the burden to prove otherwise. Given such a charge, it is foreseeable a jury could return a verdict against a physician, even if the physician managed the patient’s care appropriately and ordered appropriate prophylaxis.

Take Extra Precaution

To prevent CMS' reimbursement decisions from becoming the functional equivalent of a res ipsa instruction, physicians need to raise the level of precaution they employ against “never event” complications. At the heart of CMS' decision is its statement “never event” complications are “reasonably preventable by following evidence-based guidelines.” When a condition is only “reasonably preventable,” instead of “absolutely preventable,” a defense lawyer retains the ability to argue some patients will develop the condition even when the care was entirely appropriate.

We believe most jurors understand the inherent difficulties of caring for sick patients, and the risks that exist every time a patient undergoes a surgical procedure. The defense lawyer’s challenge is convincing a jury the patient received appropriate care, notwithstanding the complication.

Because CMS refers to “evidence-based guidelines,” physicians must know and follow the guidelines. The first step is becoming familiar with the complications CMS will deny reimbursement, and then regularly review the available guidelines to identify practices to reduce or eliminate the complication. Re-evaluate and update your practice whenever new information becomes available.

A consistent cycle of evaluating and responding to complications will afford the defense lawyer the ability to argue the physician and hospital complied with “evidence-based guidelines” and the patient’s case represents one of the unfortunate incidents where a patient suffers a complication despite receiving the highest-level of care.

In our experience, many providers initially create good systems, but run into trouble in the follow up. Make sure you respond to new or additional information or methods of practice. Without this follow up, CMS’ reimbursement decisions have the potential to create malpractice liabilities for all inpatient providers. TH

Patrick O’Rourke works in the Office of University Counsel, Department of Litigation, University of Colorado Denver.

The Center for Medicare and Medicaid Services (CMS) recently announced federal payor programs no longer reimburses for medical services rendered to treat certain complications of care. Although CMS chose the majority of these complications because they are “reasonably preventable by following evidence-based guidelines,” the national media and patient advocacy groups have adopted the term “never events” to describe them.

Aside from the payment implications, CMS’ new policy affects the liability risk of any person providing inpatient care, regardless of whether a federal payor is involved.

In its press release announcing the new payment policy, CMS stated, “when you enter the hospital for treatment of one medical problem, you don’t expect to leave with additional injuries, infections, or serious conditions that occur during the course of your stay.” Recognizing “some of these complications may not be avoidable,” CMS found “too often patients suffer from injuries or illnesses that could have been prevented if the hospital had taken proper precautions.”

Consequently, “as part of its commitment to improve the quality of care [patients] receive during a hospital stay,” CMS policy is targeted at reducing “hospital-acquired conditions like certain infections, advanced bed sores, or fractures;” and “preventable medical errors, like performing surgery on the wrong side of the body, that should never happen.”

The list of “never events” covered under the CMS payment policy can be organized into three categories: surgical events, medical products and devices, and case management. The following breaks down each category:

Case Management

• Stage III and Stage IV pressure ulcers;
• Air embolism;
• Manifestations of poor control of blood sugar levels; and
• Fracture, burns, joint dislocations, and other injuries occurring from falls or other trauma suffered while an inpatient.

Surgical Events

• Surgery on wrong body part;
• Surgery on the wrong patient;
• Wrong surgery on a patient;
• Retention of a foreign object, such as a sponge or needle, inadvertently left in a patient after surgery;
• Surgical site infection following a coronary artery bypass graft;
• Surgical site infection following bariatric surgery;
• Surgical site infection following certain orthopedic procedures; and
• Deep vein thrombosis or pulmonary embolism following certain orthopedic procedures.

Medical Products and Devices

• Transfusion of wrong blood type;
• Catheter associated urinary tract infection; and
• Vascular catheter associated infections.

It’s easy to see why some of the complications made the list. Wrong-side surgery or surgery on the wrong patient are the quintessential cases where liability is generally uncontested. There is not much one can do to satisfactorily explain to a patient, or a jury, why a surgeon and surgical team operated on the wrong body part.

In other cases, however, such as fatal pulmonary embolus, death can occur even when a patient has been appropriately managed. In fact, medical literature demonstrates a small percentage of patients will develop deep vein thrombosis or pulmonary embolus even after having received therapeutic doses of heparin.

Reasonable Expectations

In any case involving a “never event,” we expect plaintiffs’ attorneys to argue CMS’ reimbursement determination is tantamount to a finding of substandard care. In other words, plaintiffs’ attorneys will argue a physician acted negligently simply because the patient incurred one of the proscribed complications. It’s a compelling argument because the federal government has essentially concluded these complications do not occur if physicians and hospitals pay attention while providing care.

You may have heard the Latin phrase res ipsa loquitur; it translates to “the thing speaks for itself.” Legally, res ipsa loquitur states a rule of law where a jury must presume a defendant was negligent when a certain type of injury occurs. The burden then shifts to the defendant to prove the injury occurred in the absence of negligence. The res ipsa rule originated in 1863 when a plaintiff was struck by a barrel of flour falling from a second-story window. The barrel caused the judge hearing the case to remark, “It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out, and I think that such a case would, beyond all doubt, afford prima facie evidence of negligence. A barrel could not roll out of a warehouse without some negligence. … [I]f there are any facts inconsistent with negligence, it is for the defendant to prove them.” Thus, res ipsa is grounded in the notion everyone knows barrels aren’t supposed to fall from second-floor windows.

Traditionally, res ipsa applied only in a small class of medical malpractice cases, such as retained objects following surgery. In such cases, jurors are just as capable as medical professionals in understanding someone was negligent. For example, it does not take expert testimony to establish there has been negligence when a surgical instrument is left in a patient. There’s simply no compelling medical reason for a surgeon to leave an instrument in a patient’s abdomen.

In contrast, res ipsa generally has not applied in cases involving pulmonary embolus because the process of thromboembolic disease is beyond the average juror’s understanding and death by pulmonary embolus would not give rise to a presumption of negligence.

Where res ipsa applies, it’s a powerful concept. If res ipsa were found to apply to pulmonary embolus cases, the jury would be instructed it is the duty of a physician caring for a post-surgical patient to take care that the patient does not develop pulmonary embolus. Thus, a jury would begin with the presumption a patient would not develop pulmonary embolus absent negligence. The physician would then be left with the burden to prove otherwise. Given such a charge, it is foreseeable a jury could return a verdict against a physician, even if the physician managed the patient’s care appropriately and ordered appropriate prophylaxis.

Take Extra Precaution

To prevent CMS' reimbursement decisions from becoming the functional equivalent of a res ipsa instruction, physicians need to raise the level of precaution they employ against “never event” complications. At the heart of CMS' decision is its statement “never event” complications are “reasonably preventable by following evidence-based guidelines.” When a condition is only “reasonably preventable,” instead of “absolutely preventable,” a defense lawyer retains the ability to argue some patients will develop the condition even when the care was entirely appropriate.

We believe most jurors understand the inherent difficulties of caring for sick patients, and the risks that exist every time a patient undergoes a surgical procedure. The defense lawyer’s challenge is convincing a jury the patient received appropriate care, notwithstanding the complication.

Because CMS refers to “evidence-based guidelines,” physicians must know and follow the guidelines. The first step is becoming familiar with the complications CMS will deny reimbursement, and then regularly review the available guidelines to identify practices to reduce or eliminate the complication. Re-evaluate and update your practice whenever new information becomes available.

A consistent cycle of evaluating and responding to complications will afford the defense lawyer the ability to argue the physician and hospital complied with “evidence-based guidelines” and the patient’s case represents one of the unfortunate incidents where a patient suffers a complication despite receiving the highest-level of care.

In our experience, many providers initially create good systems, but run into trouble in the follow up. Make sure you respond to new or additional information or methods of practice. Without this follow up, CMS’ reimbursement decisions have the potential to create malpractice liabilities for all inpatient providers. TH

Patrick O’Rourke works in the Office of University Counsel, Department of Litigation, University of Colorado Denver.

Physicians are no strangers to specialized careers. In narrowing the scope of their practice, specialists develop the expertise and experience to benefit patients and colleagues alike.

Specialization is common in the legal profession, as well, and some legal issues present the need to obtain specialized legal assistance. Just as a patient needing an appendectomy shouldn’t visit a psychiatrist, a medical malpractice client shouldn’t visit a tax attorney.

Before working with an attorney, pose the following questions:

• How many times have you represented clients with my particular legal problem?
• How many of those cases have gone to trial?
• Have you received any specialized training in the area of my legal problem?
• Have you written any articles or taught any courses in the area of my legal problem?
• And, most importantly, what is your philosophy towards handling legal matters?

Some legal issues will require an aggressive attorney; others may need a softer touch, an attorney who will work toward resolving a matter amicably. You should feel comfortable your attorney has the experience to handle the claim and the right philosophy toward litigation. If you want confirmation, feel free to ask for the name of a prior client.

Here are some brief descriptions of the different types of specialized legal services available. Choosing the right attorney will save you time, money and should maximize the possibility that you will have a successful outcome.

Medical Malpractice Defense Counsel

In the unfortunate event you are sued for medical malpractice, you want to make sure your insurance company assigns you an attorney who has substantial experience in defending medical malpractice. These lawsuits are very complex and require defense attorneys to understand not only the legal requirements of the claim, but also the medical conditions and interventions undertaken on the patients’ behalf.

Professional Licensure Defense Counsel

Some attorneys focus on defending health care professionals before licensing agencies, such as the Board of Medical Examiners or the Drug Enforcement Agency. These proceedings often involve issues that are non-medical in nature, such as fraud, sexual misconduct and substance abuse. Attorneys specialized in representing clients before licensing agencies will have a better understanding of how the agency views the issues and will be able to recommend prospective courses of action, such as peer assistance or continuing education programs, making formal disciplinary proceedings less likely.

Labor and Employment Litigator

There are numerous laws governing the workplace, so when an employment issue surfaces, it’s important to work with an experienced labor and employment attorney. Most attorneys further specialize and represent plaintiffs or defendants, so make sure that you consult with an attorney on the right side of your issue.

Personal Injury Litigator

Some personal injury attorneys work on a volume basis and defer much of the process to paralegals and staff members. Other counselors take on a smaller volume of cases and give each case more individual attention. If you are injured in the workplace and need to find a personal injury attorney, you might want to ask a medical malpractice defense lawyer or your insurance company for a referral.

Matrimonial

One of the most common reasons a physician needs to hire counsel is the dissolution of a marriage. These cases raise intense, personal issues dealing with the division of assets, sale of property, and the allocation of parental responsibilities. Many of these issues are the subject of state laws, which attempt to compel an equitable determination. Working with an experienced matrimonial attorney will keep the focus on the legal merits of the case.

Tax Counsel

Tax law is one of the areas in which law schools offer an advanced degree, known as an LLM. It is the equivalent of a post-doctoral training program. These professionals have tremendous experience in representing individuals and businesses in the formation of business entities and in dealing with federal and state taxing authorities.

Medical Entity Formation

Depending on the state you live in, you may have a choice of business entities for your practice, such as corporations, partnerships, limited liability partnerships (LLP), and professional corporations. In choosing and structuring a business entity, you should consult with an attorney who has experience in representing health care professionals. State and federal regulations may affect your choice of an entity. A good attorney also can help clients anticipate and avoid potential dissolution issues, such as disputes over non-compete provisions, distribution of accounts receivable, and transfer of patient files.

Real Property

When attorneys refer to “real property,” they are describing the purchase and development of land, which can raise complex legal issues related to zoning, easements, assessments, restrictive covenants, and leasing.

Intellectual Property

When lawyers refer to “intellectual property,” they are describing the protections provided to a person’s creative efforts, such as copyright, trademarks and patents. Attorneys can earn a formal advanced degree in this area through an LLM program. If you develop an invention or write a book, intellectual property attorneys are best suited to make sure you receive the benefits of your creative efforts.

Trust and Estate

When people die, they leave an estate, which can be the subject of extensive probate proceedings to determine the heirs’ rights. Even if there are no disputes between heirs, there can be probate proceedings to determine the value of the estate and the taxes that might be assessed against it. TH

Patrick O’Rourke works in the Office of University Counsel, Department of Litigation, University of Colorado, Denver.

Physicians are no strangers to specialized careers. In narrowing the scope of their practice, specialists develop the expertise and experience to benefit patients and colleagues alike.

Specialization is common in the legal profession, as well, and some legal issues present the need to obtain specialized legal assistance. Just as a patient needing an appendectomy shouldn’t visit a psychiatrist, a medical malpractice client shouldn’t visit a tax attorney.

Before working with an attorney, pose the following questions:

• How many times have you represented clients with my particular legal problem?
• How many of those cases have gone to trial?
• Have you received any specialized training in the area of my legal problem?
• Have you written any articles or taught any courses in the area of my legal problem?
• And, most importantly, what is your philosophy towards handling legal matters?

Some legal issues will require an aggressive attorney; others may need a softer touch, an attorney who will work toward resolving a matter amicably. You should feel comfortable your attorney has the experience to handle the claim and the right philosophy toward litigation. If you want confirmation, feel free to ask for the name of a prior client.

Here are some brief descriptions of the different types of specialized legal services available. Choosing the right attorney will save you time, money and should maximize the possibility that you will have a successful outcome.

Medical Malpractice Defense Counsel

In the unfortunate event you are sued for medical malpractice, you want to make sure your insurance company assigns you an attorney who has substantial experience in defending medical malpractice. These lawsuits are very complex and require defense attorneys to understand not only the legal requirements of the claim, but also the medical conditions and interventions undertaken on the patients’ behalf.

Professional Licensure Defense Counsel

Some attorneys focus on defending health care professionals before licensing agencies, such as the Board of Medical Examiners or the Drug Enforcement Agency. These proceedings often involve issues that are non-medical in nature, such as fraud, sexual misconduct and substance abuse. Attorneys specialized in representing clients before licensing agencies will have a better understanding of how the agency views the issues and will be able to recommend prospective courses of action, such as peer assistance or continuing education programs, making formal disciplinary proceedings less likely.

Labor and Employment Litigator

There are numerous laws governing the workplace, so when an employment issue surfaces, it’s important to work with an experienced labor and employment attorney. Most attorneys further specialize and represent plaintiffs or defendants, so make sure that you consult with an attorney on the right side of your issue.

Personal Injury Litigator

Some personal injury attorneys work on a volume basis and defer much of the process to paralegals and staff members. Other counselors take on a smaller volume of cases and give each case more individual attention. If you are injured in the workplace and need to find a personal injury attorney, you might want to ask a medical malpractice defense lawyer or your insurance company for a referral.

Matrimonial

One of the most common reasons a physician needs to hire counsel is the dissolution of a marriage. These cases raise intense, personal issues dealing with the division of assets, sale of property, and the allocation of parental responsibilities. Many of these issues are the subject of state laws, which attempt to compel an equitable determination. Working with an experienced matrimonial attorney will keep the focus on the legal merits of the case.

Tax Counsel

Tax law is one of the areas in which law schools offer an advanced degree, known as an LLM. It is the equivalent of a post-doctoral training program. These professionals have tremendous experience in representing individuals and businesses in the formation of business entities and in dealing with federal and state taxing authorities.

Medical Entity Formation

Depending on the state you live in, you may have a choice of business entities for your practice, such as corporations, partnerships, limited liability partnerships (LLP), and professional corporations. In choosing and structuring a business entity, you should consult with an attorney who has experience in representing health care professionals. State and federal regulations may affect your choice of an entity. A good attorney also can help clients anticipate and avoid potential dissolution issues, such as disputes over non-compete provisions, distribution of accounts receivable, and transfer of patient files.

Real Property

When attorneys refer to “real property,” they are describing the purchase and development of land, which can raise complex legal issues related to zoning, easements, assessments, restrictive covenants, and leasing.

Intellectual Property

When lawyers refer to “intellectual property,” they are describing the protections provided to a person’s creative efforts, such as copyright, trademarks and patents. Attorneys can earn a formal advanced degree in this area through an LLM program. If you develop an invention or write a book, intellectual property attorneys are best suited to make sure you receive the benefits of your creative efforts.

Trust and Estate

When people die, they leave an estate, which can be the subject of extensive probate proceedings to determine the heirs’ rights. Even if there are no disputes between heirs, there can be probate proceedings to determine the value of the estate and the taxes that might be assessed against it. TH

Patrick O’Rourke works in the Office of University Counsel, Department of Litigation, University of Colorado, Denver.

Physicians are no strangers to specialized careers. In narrowing the scope of their practice, specialists develop the expertise and experience to benefit patients and colleagues alike.

Specialization is common in the legal profession, as well, and some legal issues present the need to obtain specialized legal assistance. Just as a patient needing an appendectomy shouldn’t visit a psychiatrist, a medical malpractice client shouldn’t visit a tax attorney.

Before working with an attorney, pose the following questions:

• How many times have you represented clients with my particular legal problem?
• How many of those cases have gone to trial?
• Have you received any specialized training in the area of my legal problem?
• Have you written any articles or taught any courses in the area of my legal problem?
• And, most importantly, what is your philosophy towards handling legal matters?

Some legal issues will require an aggressive attorney; others may need a softer touch, an attorney who will work toward resolving a matter amicably. You should feel comfortable your attorney has the experience to handle the claim and the right philosophy toward litigation. If you want confirmation, feel free to ask for the name of a prior client.

Here are some brief descriptions of the different types of specialized legal services available. Choosing the right attorney will save you time, money and should maximize the possibility that you will have a successful outcome.

Medical Malpractice Defense Counsel

In the unfortunate event you are sued for medical malpractice, you want to make sure your insurance company assigns you an attorney who has substantial experience in defending medical malpractice. These lawsuits are very complex and require defense attorneys to understand not only the legal requirements of the claim, but also the medical conditions and interventions undertaken on the patients’ behalf.

Professional Licensure Defense Counsel

Some attorneys focus on defending health care professionals before licensing agencies, such as the Board of Medical Examiners or the Drug Enforcement Agency. These proceedings often involve issues that are non-medical in nature, such as fraud, sexual misconduct and substance abuse. Attorneys specialized in representing clients before licensing agencies will have a better understanding of how the agency views the issues and will be able to recommend prospective courses of action, such as peer assistance or continuing education programs, making formal disciplinary proceedings less likely.

Labor and Employment Litigator

There are numerous laws governing the workplace, so when an employment issue surfaces, it’s important to work with an experienced labor and employment attorney. Most attorneys further specialize and represent plaintiffs or defendants, so make sure that you consult with an attorney on the right side of your issue.

Personal Injury Litigator

Some personal injury attorneys work on a volume basis and defer much of the process to paralegals and staff members. Other counselors take on a smaller volume of cases and give each case more individual attention. If you are injured in the workplace and need to find a personal injury attorney, you might want to ask a medical malpractice defense lawyer or your insurance company for a referral.

Matrimonial

One of the most common reasons a physician needs to hire counsel is the dissolution of a marriage. These cases raise intense, personal issues dealing with the division of assets, sale of property, and the allocation of parental responsibilities. Many of these issues are the subject of state laws, which attempt to compel an equitable determination. Working with an experienced matrimonial attorney will keep the focus on the legal merits of the case.

Tax Counsel

Tax law is one of the areas in which law schools offer an advanced degree, known as an LLM. It is the equivalent of a post-doctoral training program. These professionals have tremendous experience in representing individuals and businesses in the formation of business entities and in dealing with federal and state taxing authorities.

Medical Entity Formation

Depending on the state you live in, you may have a choice of business entities for your practice, such as corporations, partnerships, limited liability partnerships (LLP), and professional corporations. In choosing and structuring a business entity, you should consult with an attorney who has experience in representing health care professionals. State and federal regulations may affect your choice of an entity. A good attorney also can help clients anticipate and avoid potential dissolution issues, such as disputes over non-compete provisions, distribution of accounts receivable, and transfer of patient files.

Real Property

When attorneys refer to “real property,” they are describing the purchase and development of land, which can raise complex legal issues related to zoning, easements, assessments, restrictive covenants, and leasing.

Intellectual Property

When lawyers refer to “intellectual property,” they are describing the protections provided to a person’s creative efforts, such as copyright, trademarks and patents. Attorneys can earn a formal advanced degree in this area through an LLM program. If you develop an invention or write a book, intellectual property attorneys are best suited to make sure you receive the benefits of your creative efforts.

Trust and Estate

When people die, they leave an estate, which can be the subject of extensive probate proceedings to determine the heirs’ rights. Even if there are no disputes between heirs, there can be probate proceedings to determine the value of the estate and the taxes that might be assessed against it. TH

Patrick O’Rourke works in the Office of University Counsel, Department of Litigation, University of Colorado, Denver.

Even following the best practices, some patients will suffer adverse outcomes—and some of those patients will bring a lawsuit. Knowing that some of you either are defending claims against you or that you may have to defend a claim in the future, we wanted to provide you with a bit of practical advice that may ease the burden of litigation.

1) Engage: Many physicians want to put a lawsuit out of their mind and “let the lawyer handle it.” Just as a patient can’t cure a cancer by ignoring it, avoiding a lawsuit is not going to make it go away.

While much of the legal work takes place on a day-to-day basis without your participation, you need to remember that this is your lawsuit, not your lawyer’s lawsuit. If you do not engage with your lawyer and help the lawyer shape the defense, your lawyer may end up presenting the wrong theories. More importantly, spending time with your lawyer will help them understand your personality and the way you interact with your patients. If your lawyer doesn’t know you very well, it’s very difficult for the lawyer to build rapport between you and the jurors, who ultimately will determine the outcome of the lawsuit.

2) Teach: Many defense lawyers have picked up a fair amount of medical knowledge during our careers, but few of us have practiced medicine. As you certainly know, the fact that your lawyer has read surgical textbooks doesn’t make them qualified to perform surgery.

Because you have cared for thousands of patients, you know more about your area of medical expertise than we can ever hope to gain in the course of defending a lawsuit. Teach us the medicine that will enable us to understand how and why you made important decisions while caring for the plaintiff. Ultimately, our success at trial depends on our ability to convince juries that your decisions were thoughtful and reasonable, but we can’t do that without your help.

3) Select: In almost every medical malpractice case, the parties will endorse physicians to provide the jury with expert testimony about the medical issues. These experts become important witnesses because they help the jury understand the relevant standards of care and determine whether an allegedly negligent act caused the plaintiff to suffer an injury.

You probably know the well-respected practitioners in your field who would make credible and persuasive witnesses. Help us identify them and persuade them to serve as experts on your behalf.

4) Prepare: During the course of a lawsuit, one of the most critical events is your deposition. During your deposition, the opposing lawyer will attempt to “lock you in” on the key issues in the case and prevent you from changing your testimony at the time of trial. Consequently, you have to be well prepared for your deposition, both in terms of knowing the facts of the plaintiff’s care (which may have been rendered several years earlier) and in knowing the medical principles that applied to the plaintiff’s care.

You must demand your lawyer adequately prepare you for the deposition by reviewing these matters and preparing you for the deposition process. You need to understand how lawyers frame questions in the hopes of obtaining responses that will come back to haunt you. If you haven’t devoted the time and energy necessary for you to understand and feel comfortable with the process before sitting down for the deposition, you’re in trouble.

5) Attend: Your deposition is the only event before trial that you legally are required to attend. As a defendant, however, you have a right to attend any other deposition that takes place before trial, including the deposition of the plaintiffs and the opposing experts.

If you attend the plaintiff’s deposition, you will have the firsthand ability to hear that person’s story, and you then have the ability to suggest areas where your lawyer can challenge the plaintiff’s recollection. If you attend the opposing expert’s deposition, you similarly have the ability to hear that person’s criticisms, and you can suggest areas where your lawyer can challenge the factual or medical basis for the opinions.

6) Demonstrate: Contrary to television depictions, a trial can be a long and boring process, particularly when there’s nothing to capture the jury’s attention. Jurors have a hard time following a witness’s testimony when it consists solely of questions and answers.

This problem can be compounded when the testimony consists of technical medical information. To prevent boredom and inattention, we want to engage the jurors—and you can help us do it. Give us props, whether in the form of anatomic models, instruments used during the procedure, photographs, charts, or animations that will allow us to capture the jury’s imagination.

7) Communicate: Lawyers and doctors work in different environments. For example, you have the ability to order a test and receive the results within hours, but lawyers generally have weeks to respond to an opposing party’s requests for information. Doctors often receive results that are quantifiable and measurable—but ambiguity and nuance are a lawyer’s stock in trade.

You will be frustrated as you go through the litigation, and you need to have clear and open channels of communication with your lawyer.

Just as your patients depend upon you to orient them within an unfamiliar and frightening environment, your lawyer should help you understand what’s happening in your case. If you don’t have enough information to make intelligent decisions, you should ask for more.

8) Trust: While it’s vital to engage in the process and understand how the lawsuit is proceeding, you need to remember you are not a lawyer. There will be times when your lawyer will have to make judgment calls, and you need to give your lawyer the ability to make those decisions.

Please don’t misunderstand: You have a right to make informed decisions, but a lawyer will make hundreds of judgment calls in the course of a trial, such as whether to dismiss a potential juror, pursue a certain line of questioning with a witness, or introduce a particular exhibit. Some of your lawyer’s recommendations may seem counterintuitive to you, but the courtroom is our operating room.

9) Defend: Most jurors come to the courtroom with some skepticism of medical malpractice claims. One of the reasons for this skepticism is jurors generally like their own physicians and want to believe the medical system functions properly. When they hear a plaintiff’s claim that they were injured through medical negligence, they want the physicians involved in the care to explain how the injury occurred and why it wasn’t the physicians’ fault.

You need to be able to stand up, look the jurors in the eye, explain that your care was appropriate, and withstand an attorney’s attempts to impeach your credibility. If you are unwilling to stand up and fight for yourself and your care, there’s little reason to expect the jurors will fight on your behalf once they begin their deliberations.

10) Relax: This may be the most important tip of all. Lawsuits impose a tremendous amount of stress upon all of the participants, but especially upon a physician whose care is under fire.

We’ve represented physicians who have become so stressed and frustrated by the litigation process that it has overwhelmed them and harmed their ability to provide high-quality care for their ongoing patients.

Some physicians resort to alcohol or other substances to cope with stress. This is the worst possible scenario because it increases the likelihood that you will face another lawsuit in the future.

You need to recognize the stress imposed by a lawsuit, take care of yourself, take care of your practice, and seek help when appropriate. Almost every state has a peer-counseling program for physicians that offers specialized and confidential assistance for physicians. Contact your local medical association for a referral to one of these organizations. TH

Patrick O’Rourke works in the Office of University Counsel, Department of Litigation, University of Colorado, Denver.

Even following the best practices, some patients will suffer adverse outcomes—and some of those patients will bring a lawsuit. Knowing that some of you either are defending claims against you or that you may have to defend a claim in the future, we wanted to provide you with a bit of practical advice that may ease the burden of litigation.

1) Engage: Many physicians want to put a lawsuit out of their mind and “let the lawyer handle it.” Just as a patient can’t cure a cancer by ignoring it, avoiding a lawsuit is not going to make it go away.

While much of the legal work takes place on a day-to-day basis without your participation, you need to remember that this is your lawsuit, not your lawyer’s lawsuit. If you do not engage with your lawyer and help the lawyer shape the defense, your lawyer may end up presenting the wrong theories. More importantly, spending time with your lawyer will help them understand your personality and the way you interact with your patients. If your lawyer doesn’t know you very well, it’s very difficult for the lawyer to build rapport between you and the jurors, who ultimately will determine the outcome of the lawsuit.

2) Teach: Many defense lawyers have picked up a fair amount of medical knowledge during our careers, but few of us have practiced medicine. As you certainly know, the fact that your lawyer has read surgical textbooks doesn’t make them qualified to perform surgery.

Because you have cared for thousands of patients, you know more about your area of medical expertise than we can ever hope to gain in the course of defending a lawsuit. Teach us the medicine that will enable us to understand how and why you made important decisions while caring for the plaintiff. Ultimately, our success at trial depends on our ability to convince juries that your decisions were thoughtful and reasonable, but we can’t do that without your help.

3) Select: In almost every medical malpractice case, the parties will endorse physicians to provide the jury with expert testimony about the medical issues. These experts become important witnesses because they help the jury understand the relevant standards of care and determine whether an allegedly negligent act caused the plaintiff to suffer an injury.

You probably know the well-respected practitioners in your field who would make credible and persuasive witnesses. Help us identify them and persuade them to serve as experts on your behalf.

4) Prepare: During the course of a lawsuit, one of the most critical events is your deposition. During your deposition, the opposing lawyer will attempt to “lock you in” on the key issues in the case and prevent you from changing your testimony at the time of trial. Consequently, you have to be well prepared for your deposition, both in terms of knowing the facts of the plaintiff’s care (which may have been rendered several years earlier) and in knowing the medical principles that applied to the plaintiff’s care.

You must demand your lawyer adequately prepare you for the deposition by reviewing these matters and preparing you for the deposition process. You need to understand how lawyers frame questions in the hopes of obtaining responses that will come back to haunt you. If you haven’t devoted the time and energy necessary for you to understand and feel comfortable with the process before sitting down for the deposition, you’re in trouble.

5) Attend: Your deposition is the only event before trial that you legally are required to attend. As a defendant, however, you have a right to attend any other deposition that takes place before trial, including the deposition of the plaintiffs and the opposing experts.

If you attend the plaintiff’s deposition, you will have the firsthand ability to hear that person’s story, and you then have the ability to suggest areas where your lawyer can challenge the plaintiff’s recollection. If you attend the opposing expert’s deposition, you similarly have the ability to hear that person’s criticisms, and you can suggest areas where your lawyer can challenge the factual or medical basis for the opinions.

6) Demonstrate: Contrary to television depictions, a trial can be a long and boring process, particularly when there’s nothing to capture the jury’s attention. Jurors have a hard time following a witness’s testimony when it consists solely of questions and answers.

This problem can be compounded when the testimony consists of technical medical information. To prevent boredom and inattention, we want to engage the jurors—and you can help us do it. Give us props, whether in the form of anatomic models, instruments used during the procedure, photographs, charts, or animations that will allow us to capture the jury’s imagination.

7) Communicate: Lawyers and doctors work in different environments. For example, you have the ability to order a test and receive the results within hours, but lawyers generally have weeks to respond to an opposing party’s requests for information. Doctors often receive results that are quantifiable and measurable—but ambiguity and nuance are a lawyer’s stock in trade.

You will be frustrated as you go through the litigation, and you need to have clear and open channels of communication with your lawyer.

Just as your patients depend upon you to orient them within an unfamiliar and frightening environment, your lawyer should help you understand what’s happening in your case. If you don’t have enough information to make intelligent decisions, you should ask for more.

8) Trust: While it’s vital to engage in the process and understand how the lawsuit is proceeding, you need to remember you are not a lawyer. There will be times when your lawyer will have to make judgment calls, and you need to give your lawyer the ability to make those decisions.

Please don’t misunderstand: You have a right to make informed decisions, but a lawyer will make hundreds of judgment calls in the course of a trial, such as whether to dismiss a potential juror, pursue a certain line of questioning with a witness, or introduce a particular exhibit. Some of your lawyer’s recommendations may seem counterintuitive to you, but the courtroom is our operating room.

9) Defend: Most jurors come to the courtroom with some skepticism of medical malpractice claims. One of the reasons for this skepticism is jurors generally like their own physicians and want to believe the medical system functions properly. When they hear a plaintiff’s claim that they were injured through medical negligence, they want the physicians involved in the care to explain how the injury occurred and why it wasn’t the physicians’ fault.

You need to be able to stand up, look the jurors in the eye, explain that your care was appropriate, and withstand an attorney’s attempts to impeach your credibility. If you are unwilling to stand up and fight for yourself and your care, there’s little reason to expect the jurors will fight on your behalf once they begin their deliberations.

10) Relax: This may be the most important tip of all. Lawsuits impose a tremendous amount of stress upon all of the participants, but especially upon a physician whose care is under fire.

We’ve represented physicians who have become so stressed and frustrated by the litigation process that it has overwhelmed them and harmed their ability to provide high-quality care for their ongoing patients.

Some physicians resort to alcohol or other substances to cope with stress. This is the worst possible scenario because it increases the likelihood that you will face another lawsuit in the future.

You need to recognize the stress imposed by a lawsuit, take care of yourself, take care of your practice, and seek help when appropriate. Almost every state has a peer-counseling program for physicians that offers specialized and confidential assistance for physicians. Contact your local medical association for a referral to one of these organizations. TH

Patrick O’Rourke works in the Office of University Counsel, Department of Litigation, University of Colorado, Denver.

Even following the best practices, some patients will suffer adverse outcomes—and some of those patients will bring a lawsuit. Knowing that some of you either are defending claims against you or that you may have to defend a claim in the future, we wanted to provide you with a bit of practical advice that may ease the burden of litigation.

1) Engage: Many physicians want to put a lawsuit out of their mind and “let the lawyer handle it.” Just as a patient can’t cure a cancer by ignoring it, avoiding a lawsuit is not going to make it go away.

While much of the legal work takes place on a day-to-day basis without your participation, you need to remember that this is your lawsuit, not your lawyer’s lawsuit. If you do not engage with your lawyer and help the lawyer shape the defense, your lawyer may end up presenting the wrong theories. More importantly, spending time with your lawyer will help them understand your personality and the way you interact with your patients. If your lawyer doesn’t know you very well, it’s very difficult for the lawyer to build rapport between you and the jurors, who ultimately will determine the outcome of the lawsuit.

2) Teach: Many defense lawyers have picked up a fair amount of medical knowledge during our careers, but few of us have practiced medicine. As you certainly know, the fact that your lawyer has read surgical textbooks doesn’t make them qualified to perform surgery.

Because you have cared for thousands of patients, you know more about your area of medical expertise than we can ever hope to gain in the course of defending a lawsuit. Teach us the medicine that will enable us to understand how and why you made important decisions while caring for the plaintiff. Ultimately, our success at trial depends on our ability to convince juries that your decisions were thoughtful and reasonable, but we can’t do that without your help.

3) Select: In almost every medical malpractice case, the parties will endorse physicians to provide the jury with expert testimony about the medical issues. These experts become important witnesses because they help the jury understand the relevant standards of care and determine whether an allegedly negligent act caused the plaintiff to suffer an injury.

You probably know the well-respected practitioners in your field who would make credible and persuasive witnesses. Help us identify them and persuade them to serve as experts on your behalf.

4) Prepare: During the course of a lawsuit, one of the most critical events is your deposition. During your deposition, the opposing lawyer will attempt to “lock you in” on the key issues in the case and prevent you from changing your testimony at the time of trial. Consequently, you have to be well prepared for your deposition, both in terms of knowing the facts of the plaintiff’s care (which may have been rendered several years earlier) and in knowing the medical principles that applied to the plaintiff’s care.

You must demand your lawyer adequately prepare you for the deposition by reviewing these matters and preparing you for the deposition process. You need to understand how lawyers frame questions in the hopes of obtaining responses that will come back to haunt you. If you haven’t devoted the time and energy necessary for you to understand and feel comfortable with the process before sitting down for the deposition, you’re in trouble.

5) Attend: Your deposition is the only event before trial that you legally are required to attend. As a defendant, however, you have a right to attend any other deposition that takes place before trial, including the deposition of the plaintiffs and the opposing experts.

If you attend the plaintiff’s deposition, you will have the firsthand ability to hear that person’s story, and you then have the ability to suggest areas where your lawyer can challenge the plaintiff’s recollection. If you attend the opposing expert’s deposition, you similarly have the ability to hear that person’s criticisms, and you can suggest areas where your lawyer can challenge the factual or medical basis for the opinions.

6) Demonstrate: Contrary to television depictions, a trial can be a long and boring process, particularly when there’s nothing to capture the jury’s attention. Jurors have a hard time following a witness’s testimony when it consists solely of questions and answers.

This problem can be compounded when the testimony consists of technical medical information. To prevent boredom and inattention, we want to engage the jurors—and you can help us do it. Give us props, whether in the form of anatomic models, instruments used during the procedure, photographs, charts, or animations that will allow us to capture the jury’s imagination.

7) Communicate: Lawyers and doctors work in different environments. For example, you have the ability to order a test and receive the results within hours, but lawyers generally have weeks to respond to an opposing party’s requests for information. Doctors often receive results that are quantifiable and measurable—but ambiguity and nuance are a lawyer’s stock in trade.

You will be frustrated as you go through the litigation, and you need to have clear and open channels of communication with your lawyer.

Just as your patients depend upon you to orient them within an unfamiliar and frightening environment, your lawyer should help you understand what’s happening in your case. If you don’t have enough information to make intelligent decisions, you should ask for more.

8) Trust: While it’s vital to engage in the process and understand how the lawsuit is proceeding, you need to remember you are not a lawyer. There will be times when your lawyer will have to make judgment calls, and you need to give your lawyer the ability to make those decisions.

Please don’t misunderstand: You have a right to make informed decisions, but a lawyer will make hundreds of judgment calls in the course of a trial, such as whether to dismiss a potential juror, pursue a certain line of questioning with a witness, or introduce a particular exhibit. Some of your lawyer’s recommendations may seem counterintuitive to you, but the courtroom is our operating room.

9) Defend: Most jurors come to the courtroom with some skepticism of medical malpractice claims. One of the reasons for this skepticism is jurors generally like their own physicians and want to believe the medical system functions properly. When they hear a plaintiff’s claim that they were injured through medical negligence, they want the physicians involved in the care to explain how the injury occurred and why it wasn’t the physicians’ fault.

You need to be able to stand up, look the jurors in the eye, explain that your care was appropriate, and withstand an attorney’s attempts to impeach your credibility. If you are unwilling to stand up and fight for yourself and your care, there’s little reason to expect the jurors will fight on your behalf once they begin their deliberations.

10) Relax: This may be the most important tip of all. Lawsuits impose a tremendous amount of stress upon all of the participants, but especially upon a physician whose care is under fire.

We’ve represented physicians who have become so stressed and frustrated by the litigation process that it has overwhelmed them and harmed their ability to provide high-quality care for their ongoing patients.

Some physicians resort to alcohol or other substances to cope with stress. This is the worst possible scenario because it increases the likelihood that you will face another lawsuit in the future.

You need to recognize the stress imposed by a lawsuit, take care of yourself, take care of your practice, and seek help when appropriate. Almost every state has a peer-counseling program for physicians that offers specialized and confidential assistance for physicians. Contact your local medical association for a referral to one of these organizations. TH

Patrick O’Rourke works in the Office of University Counsel, Department of Litigation, University of Colorado, Denver.

How many times have you been asked a medical question outside the hospital? Undoubtedly, it happens too many times to count.

An acquaintance asks about a strange pain; you look at a rash on your neighbor’s son; you guide a nurse when she can’t reach a patient’s physician; a colleague asks for a curbside consult; or you provide medical advice over the phone to another provider while on-call at the hospital. When do any of the people in these situations become your patient?

Unfortunately, there is no easy answer. Legally, the question of whether a physician-patient relationship is created is determined on a case-by-case basis. As a general rule, if a physician undertakes to treat or provide medical care, a physician-patient relationship exists and the physician contracts to exercise reasonable skill in providing the care.

Implied Relationships

Absent an express agreement to enter a physician-patient relationship, the law may imply a relationship based on conduct that demonstrates consent to a relationship. A patient demonstrates consent by seeking medical services. Consent may also be implied when, for example, a patient needs emergency care, services are provided at the request of a treating physician, or treatment is mandated by a court.

Physicians consent to a relationship by diagnosing, treating, or otherwise providing care. A physician can also consent simply because of a working arrangement with a hospital or other entity—such as an agreement to accept assignment of patients.

In determining whether a physician-patient relationship has been created, consider the absence or existence of affirmative acts by a physician. For example, when a physician receives a call from a patient’s treating physician and the two physicians discuss the patient, the conversation might not create a physician-patient relationship if the consulting physician does not expressly provide an opinion. This is because there is no affirmative action upon which a court can imply a duty. Likewise, an on-call doctor does not create a physician-patient relationship simply by being on-call when she does not see, treat, or participate in the care of a patient.

Conversely, acts sufficient to create a physician-patient relationship exist when an on-call or consulting physician offers advice, provides treatment, or discharges a patient. Notably, an implied duty can be inferred even if the physician has not had direct contact with a patient if the court determines the physician’s conduct has interfered with a patient’s interests—thereby entitling the patient to legal protection.

Duties of Physicians

Even absent a physician-patient relationship, the law can impose general duties on physicians. Physicians have a duty to use reasonable care in regard to affirmative conduct when it is foreseeable that another might be injured.

For example, the Colorado Supreme Court found that an anesthesiologist owed a general duty to hospital patients who were not his patients when the physician’s failure to properly dispose of medication exposed patients to a foreseeable risk of harm.

The court has also found that a physician retained by defendants in a personal injury lawsuit owed a duty of reasonable care when subjecting the plaintiff to medical examinations. Similarly, the court concluded that an independent medical examiner could be liable for any injury the examiner causes during an examination, even though the examiner does not owe a duty to accurately diagnose the patient.

Is That Your Patient?

Ultimately, a physician-patient relationship and its corresponding duties arise when reasonable people would recognize a duty and agree that it exists. You must analyze your conduct and interactions, including your:

• Communication with patients or nonpatients (including e-mail or conversations in passing);
• On-call status;
• Agreements with facilities, a service, or other providers to accept patients;
• Degree of responsibility for a given patient’s care;
• Charges or fee discussion;
• Affirmative acts of care or treatment as distinguished from examination solely for the benefit of a third party;
• Initiation of contact with the patient or patient’s family;
• Referral from another physician or non-physician; and
• Consultations with other physicians, either formal or informal and whether different areas of expertise are involved or specific care or advise is given.

Ultimate determination of whether a physician-patient relationship exists is fact-specific—and no single fact is definitive. The above factors may guide you in assessing the nature of your interactions with patients and your attendant responsibilities. TH

Patrick O’Rourke works in the Office of University Counsel, Department of Litigation, University of Colorado, Denver.

How many times have you been asked a medical question outside the hospital? Undoubtedly, it happens too many times to count.

An acquaintance asks about a strange pain; you look at a rash on your neighbor’s son; you guide a nurse when she can’t reach a patient’s physician; a colleague asks for a curbside consult; or you provide medical advice over the phone to another provider while on-call at the hospital. When do any of the people in these situations become your patient?

Unfortunately, there is no easy answer. Legally, the question of whether a physician-patient relationship is created is determined on a case-by-case basis. As a general rule, if a physician undertakes to treat or provide medical care, a physician-patient relationship exists and the physician contracts to exercise reasonable skill in providing the care.

Implied Relationships

Absent an express agreement to enter a physician-patient relationship, the law may imply a relationship based on conduct that demonstrates consent to a relationship. A patient demonstrates consent by seeking medical services. Consent may also be implied when, for example, a patient needs emergency care, services are provided at the request of a treating physician, or treatment is mandated by a court.

Physicians consent to a relationship by diagnosing, treating, or otherwise providing care. A physician can also consent simply because of a working arrangement with a hospital or other entity—such as an agreement to accept assignment of patients.

In determining whether a physician-patient relationship has been created, consider the absence or existence of affirmative acts by a physician. For example, when a physician receives a call from a patient’s treating physician and the two physicians discuss the patient, the conversation might not create a physician-patient relationship if the consulting physician does not expressly provide an opinion. This is because there is no affirmative action upon which a court can imply a duty. Likewise, an on-call doctor does not create a physician-patient relationship simply by being on-call when she does not see, treat, or participate in the care of a patient.

Conversely, acts sufficient to create a physician-patient relationship exist when an on-call or consulting physician offers advice, provides treatment, or discharges a patient. Notably, an implied duty can be inferred even if the physician has not had direct contact with a patient if the court determines the physician’s conduct has interfered with a patient’s interests—thereby entitling the patient to legal protection.

Duties of Physicians

Even absent a physician-patient relationship, the law can impose general duties on physicians. Physicians have a duty to use reasonable care in regard to affirmative conduct when it is foreseeable that another might be injured.

For example, the Colorado Supreme Court found that an anesthesiologist owed a general duty to hospital patients who were not his patients when the physician’s failure to properly dispose of medication exposed patients to a foreseeable risk of harm.

The court has also found that a physician retained by defendants in a personal injury lawsuit owed a duty of reasonable care when subjecting the plaintiff to medical examinations. Similarly, the court concluded that an independent medical examiner could be liable for any injury the examiner causes during an examination, even though the examiner does not owe a duty to accurately diagnose the patient.

Is That Your Patient?

Ultimately, a physician-patient relationship and its corresponding duties arise when reasonable people would recognize a duty and agree that it exists. You must analyze your conduct and interactions, including your:

• Communication with patients or nonpatients (including e-mail or conversations in passing);
• On-call status;
• Agreements with facilities, a service, or other providers to accept patients;
• Degree of responsibility for a given patient’s care;
• Charges or fee discussion;
• Affirmative acts of care or treatment as distinguished from examination solely for the benefit of a third party;
• Initiation of contact with the patient or patient’s family;
• Referral from another physician or non-physician; and
• Consultations with other physicians, either formal or informal and whether different areas of expertise are involved or specific care or advise is given.

Ultimate determination of whether a physician-patient relationship exists is fact-specific—and no single fact is definitive. The above factors may guide you in assessing the nature of your interactions with patients and your attendant responsibilities. TH

Patrick O’Rourke works in the Office of University Counsel, Department of Litigation, University of Colorado, Denver.

How many times have you been asked a medical question outside the hospital? Undoubtedly, it happens too many times to count.

An acquaintance asks about a strange pain; you look at a rash on your neighbor’s son; you guide a nurse when she can’t reach a patient’s physician; a colleague asks for a curbside consult; or you provide medical advice over the phone to another provider while on-call at the hospital. When do any of the people in these situations become your patient?

Unfortunately, there is no easy answer. Legally, the question of whether a physician-patient relationship is created is determined on a case-by-case basis. As a general rule, if a physician undertakes to treat or provide medical care, a physician-patient relationship exists and the physician contracts to exercise reasonable skill in providing the care.

Implied Relationships

Absent an express agreement to enter a physician-patient relationship, the law may imply a relationship based on conduct that demonstrates consent to a relationship. A patient demonstrates consent by seeking medical services. Consent may also be implied when, for example, a patient needs emergency care, services are provided at the request of a treating physician, or treatment is mandated by a court.

Physicians consent to a relationship by diagnosing, treating, or otherwise providing care. A physician can also consent simply because of a working arrangement with a hospital or other entity—such as an agreement to accept assignment of patients.

In determining whether a physician-patient relationship has been created, consider the absence or existence of affirmative acts by a physician. For example, when a physician receives a call from a patient’s treating physician and the two physicians discuss the patient, the conversation might not create a physician-patient relationship if the consulting physician does not expressly provide an opinion. This is because there is no affirmative action upon which a court can imply a duty. Likewise, an on-call doctor does not create a physician-patient relationship simply by being on-call when she does not see, treat, or participate in the care of a patient.

Conversely, acts sufficient to create a physician-patient relationship exist when an on-call or consulting physician offers advice, provides treatment, or discharges a patient. Notably, an implied duty can be inferred even if the physician has not had direct contact with a patient if the court determines the physician’s conduct has interfered with a patient’s interests—thereby entitling the patient to legal protection.

Duties of Physicians

Even absent a physician-patient relationship, the law can impose general duties on physicians. Physicians have a duty to use reasonable care in regard to affirmative conduct when it is foreseeable that another might be injured.

For example, the Colorado Supreme Court found that an anesthesiologist owed a general duty to hospital patients who were not his patients when the physician’s failure to properly dispose of medication exposed patients to a foreseeable risk of harm.

The court has also found that a physician retained by defendants in a personal injury lawsuit owed a duty of reasonable care when subjecting the plaintiff to medical examinations. Similarly, the court concluded that an independent medical examiner could be liable for any injury the examiner causes during an examination, even though the examiner does not owe a duty to accurately diagnose the patient.

Is That Your Patient?

Ultimately, a physician-patient relationship and its corresponding duties arise when reasonable people would recognize a duty and agree that it exists. You must analyze your conduct and interactions, including your:

• Communication with patients or nonpatients (including e-mail or conversations in passing);
• On-call status;
• Agreements with facilities, a service, or other providers to accept patients;
• Degree of responsibility for a given patient’s care;
• Charges or fee discussion;
• Affirmative acts of care or treatment as distinguished from examination solely for the benefit of a third party;
• Initiation of contact with the patient or patient’s family;
• Referral from another physician or non-physician; and
• Consultations with other physicians, either formal or informal and whether different areas of expertise are involved or specific care or advise is given.

Ultimate determination of whether a physician-patient relationship exists is fact-specific—and no single fact is definitive. The above factors may guide you in assessing the nature of your interactions with patients and your attendant responsibilities. TH

Patrick O’Rourke works in the Office of University Counsel, Department of Litigation, University of Colorado, Denver.

One day, you’re sitting in your office when a stranger appears and asks, “Are you Dr. Smith?” When you say yes, the stranger hands you a sheaf of papers. You open the papers and see you’ve been “commanded” to attend a deposition at a lawyer’s office next week. How do you prepare?

The Basics

Black’s Law Dictionary gives a long definition of a deposition. But the shorter, more practical definition is that a deposition is a witness’s sworn out-of-court testimony. When a physician gives a deposition in a lawyer’s office, this testimony has the same legal effect as though the physician were testifying in court.

Lawyers typically view depositions as one of two types:

• Discovery depositions: These allow lawyers to discover the substance of a witness’s testimony before trial. They can touch upon a number of subjects that seem tangential to the case. A lawyer taking a discovery deposition is putting together the pieces of the case and may or may not ask the witness to testify at trial; and
• Perpetuation depositions: These let lawyers present the testimony of a witness who cannot appear at trial. Perpetuation depositions substitute for the examinations and cross-examinations that would normally occur in the courtroom. Perpetuation depositions are generally shorter and more focused than discovery depositions.

In all depositions, lawyers ask questions of the witness and can object to legally improper questions. The lawyers can ask the witness to refer to documents or other exhibits during the deposition. A court reporter will transcribe the questions and answers and condense them into a written transcript. A judge is normally not present for a deposition but can be called during the deposition to make rulings.

Know Your Role

Perhaps the most important thing you can do in preparing for a deposition is understand your role in the lawsuit. Generally, physicians serve in one of three potential roles as deponents:

Medical malpractice defendant: When a patient sues a physician for malpractice, the patient’s attorney normally will take the physician’s deposition. In this highly adversarial process, the patient’s attorney attempts to demonstrate that the physician’s negligence injured the patient. A physician being deposed as a defendant must prepare by meeting with his attorney and reviewing the issues likely to arise during the proceedings. If you are a defendant in a lawsuit, you must set aside adequate time to prepare for the deposition with your attorney;

Retained expert witness: The rules of evidence allow people with specialized knowledge to testify as experts in fields normally beyond the average juror’s experience. Because they have specialized knowledge, experts are allowed to state opinions in their testimony, such as whether a physician’s conduct complied with the applicable standards of care. Attorneys generally hire expert witnesses to present opinions in a case and will provide a summary of the expert’s testimony before the deposition; and

Treating physician: Many physicians are deposed concerning the care they provided to a patient in lawsuits that implicate the patient’s health (auto accident, work injury, disability suit). These depositions focus on the substance of treatment, the patient’s medical condition, and the patient’s prognosis. The physician normally does not have any interest in how the lawsuit is resolved. A treating physician is often compensated for his time in the deposition, even though he was not retained as an expert to testify in the lawsuit.

Golden Rules

Because depositions are stressful, lawyers ask witnesses to remember only three rules.

Tell the truth: Your only job as a witness is to tell the truth. If you follow this rule, you have discharged your obligation to the legal system.

However, keep some things in mind when telling the truth. In particular, your ability to tell the truth is subject to the limitations of your memory and the fact that your deposition may be occurring several years after you provided care. “I don’t know” and “I don’t remember” are absolutely acceptable answers in a deposition. In fact, they are preferable to inaccurate or untruthful testimony. If reviewing a document (such as the patient’s medical records) will help you provide accurate and truthful testimony, don’t be shy about asking to review them. In any situation where you are guessing or providing your best recollection, make sure the lawyer knows you are doing your best but that you can’t remember all the details.

Make sure you understand the question: This rule seems self-evident, but many lawyers ask convoluted or compound questions. Lawyers may also use language unfamiliar to you as an outsider to the legal process. For example, when lawyers use the phrase “standard of care,” it has a fairly precise definition (it is an action a reasonably careful physician would undertake under the same or similar circumstances). Ask for clarification of any question that is not clear. It’s the lawyer’s job to ask an understandable question, not the physician’s job to answer a question that doesn’t make sense. Be extra careful when the opposing lawyer objects to a question. While the lawyer’s objection does not relieve you from answering, it should signal you that the question is potentially flawed or beyond the scope of your knowledge.

Answer only what you’re asked: Invariably, physicians struggle most when they don’t focus their answers on the question posed to them.

The majority of questions in a deposition can be answered “Yes,” “No,” “I don’t know,” and “I don’t remember.” Yet many physicians tend to volunteer additional information to explain their answers. Because lawyers are trained to recognize and follow up on nonresponsive answers, the physician’s deposition becomes longer and more challenging. To provide a better answer, don’t think out loud. Ponder the question and mentally prepare your answer. Doing so lets you respond more precisely. Answer only the question you are asked. If there is an area that needs more explanation, the other party’s attorney (or your attorney) will have an opportunity to allow you to clarify the record.

To help you follow the rules, use this decision tree during your deposition (see Figure 1, left).

Regardless of the purpose of a deposition or your perceived role in it, consult with an attorney before being deposed. Even if you believe you are being deposed only as a treating provider, a deposition could lead to potential claims or raise concerns about your records. If served with a subpoena, contact your insurance company, which may retain an attorney to assist you. TH

Patrick O’Rourke works in the Office of University Counsel, Department of Litigation, University of Colorado, Denver.

One day, you’re sitting in your office when a stranger appears and asks, “Are you Dr. Smith?” When you say yes, the stranger hands you a sheaf of papers. You open the papers and see you’ve been “commanded” to attend a deposition at a lawyer’s office next week. How do you prepare?

The Basics

Black’s Law Dictionary gives a long definition of a deposition. But the shorter, more practical definition is that a deposition is a witness’s sworn out-of-court testimony. When a physician gives a deposition in a lawyer’s office, this testimony has the same legal effect as though the physician were testifying in court.

Lawyers typically view depositions as one of two types:

• Discovery depositions: These allow lawyers to discover the substance of a witness’s testimony before trial. They can touch upon a number of subjects that seem tangential to the case. A lawyer taking a discovery deposition is putting together the pieces of the case and may or may not ask the witness to testify at trial; and
• Perpetuation depositions: These let lawyers present the testimony of a witness who cannot appear at trial. Perpetuation depositions substitute for the examinations and cross-examinations that would normally occur in the courtroom. Perpetuation depositions are generally shorter and more focused than discovery depositions.

In all depositions, lawyers ask questions of the witness and can object to legally improper questions. The lawyers can ask the witness to refer to documents or other exhibits during the deposition. A court reporter will transcribe the questions and answers and condense them into a written transcript. A judge is normally not present for a deposition but can be called during the deposition to make rulings.

Know Your Role

Perhaps the most important thing you can do in preparing for a deposition is understand your role in the lawsuit. Generally, physicians serve in one of three potential roles as deponents:

Medical malpractice defendant: When a patient sues a physician for malpractice, the patient’s attorney normally will take the physician’s deposition. In this highly adversarial process, the patient’s attorney attempts to demonstrate that the physician’s negligence injured the patient. A physician being deposed as a defendant must prepare by meeting with his attorney and reviewing the issues likely to arise during the proceedings. If you are a defendant in a lawsuit, you must set aside adequate time to prepare for the deposition with your attorney;

Retained expert witness: The rules of evidence allow people with specialized knowledge to testify as experts in fields normally beyond the average juror’s experience. Because they have specialized knowledge, experts are allowed to state opinions in their testimony, such as whether a physician’s conduct complied with the applicable standards of care. Attorneys generally hire expert witnesses to present opinions in a case and will provide a summary of the expert’s testimony before the deposition; and

Treating physician: Many physicians are deposed concerning the care they provided to a patient in lawsuits that implicate the patient’s health (auto accident, work injury, disability suit). These depositions focus on the substance of treatment, the patient’s medical condition, and the patient’s prognosis. The physician normally does not have any interest in how the lawsuit is resolved. A treating physician is often compensated for his time in the deposition, even though he was not retained as an expert to testify in the lawsuit.

Golden Rules

Because depositions are stressful, lawyers ask witnesses to remember only three rules.

Tell the truth: Your only job as a witness is to tell the truth. If you follow this rule, you have discharged your obligation to the legal system.

However, keep some things in mind when telling the truth. In particular, your ability to tell the truth is subject to the limitations of your memory and the fact that your deposition may be occurring several years after you provided care. “I don’t know” and “I don’t remember” are absolutely acceptable answers in a deposition. In fact, they are preferable to inaccurate or untruthful testimony. If reviewing a document (such as the patient’s medical records) will help you provide accurate and truthful testimony, don’t be shy about asking to review them. In any situation where you are guessing or providing your best recollection, make sure the lawyer knows you are doing your best but that you can’t remember all the details.

Make sure you understand the question: This rule seems self-evident, but many lawyers ask convoluted or compound questions. Lawyers may also use language unfamiliar to you as an outsider to the legal process. For example, when lawyers use the phrase “standard of care,” it has a fairly precise definition (it is an action a reasonably careful physician would undertake under the same or similar circumstances). Ask for clarification of any question that is not clear. It’s the lawyer’s job to ask an understandable question, not the physician’s job to answer a question that doesn’t make sense. Be extra careful when the opposing lawyer objects to a question. While the lawyer’s objection does not relieve you from answering, it should signal you that the question is potentially flawed or beyond the scope of your knowledge.

Answer only what you’re asked: Invariably, physicians struggle most when they don’t focus their answers on the question posed to them.

The majority of questions in a deposition can be answered “Yes,” “No,” “I don’t know,” and “I don’t remember.” Yet many physicians tend to volunteer additional information to explain their answers. Because lawyers are trained to recognize and follow up on nonresponsive answers, the physician’s deposition becomes longer and more challenging. To provide a better answer, don’t think out loud. Ponder the question and mentally prepare your answer. Doing so lets you respond more precisely. Answer only the question you are asked. If there is an area that needs more explanation, the other party’s attorney (or your attorney) will have an opportunity to allow you to clarify the record.

To help you follow the rules, use this decision tree during your deposition (see Figure 1, left).

Regardless of the purpose of a deposition or your perceived role in it, consult with an attorney before being deposed. Even if you believe you are being deposed only as a treating provider, a deposition could lead to potential claims or raise concerns about your records. If served with a subpoena, contact your insurance company, which may retain an attorney to assist you. TH

Patrick O’Rourke works in the Office of University Counsel, Department of Litigation, University of Colorado, Denver.

One day, you’re sitting in your office when a stranger appears and asks, “Are you Dr. Smith?” When you say yes, the stranger hands you a sheaf of papers. You open the papers and see you’ve been “commanded” to attend a deposition at a lawyer’s office next week. How do you prepare?

The Basics

Black’s Law Dictionary gives a long definition of a deposition. But the shorter, more practical definition is that a deposition is a witness’s sworn out-of-court testimony. When a physician gives a deposition in a lawyer’s office, this testimony has the same legal effect as though the physician were testifying in court.

Lawyers typically view depositions as one of two types:

• Discovery depositions: These allow lawyers to discover the substance of a witness’s testimony before trial. They can touch upon a number of subjects that seem tangential to the case. A lawyer taking a discovery deposition is putting together the pieces of the case and may or may not ask the witness to testify at trial; and
• Perpetuation depositions: These let lawyers present the testimony of a witness who cannot appear at trial. Perpetuation depositions substitute for the examinations and cross-examinations that would normally occur in the courtroom. Perpetuation depositions are generally shorter and more focused than discovery depositions.

In all depositions, lawyers ask questions of the witness and can object to legally improper questions. The lawyers can ask the witness to refer to documents or other exhibits during the deposition. A court reporter will transcribe the questions and answers and condense them into a written transcript. A judge is normally not present for a deposition but can be called during the deposition to make rulings.

Know Your Role

Perhaps the most important thing you can do in preparing for a deposition is understand your role in the lawsuit. Generally, physicians serve in one of three potential roles as deponents:

Medical malpractice defendant: When a patient sues a physician for malpractice, the patient’s attorney normally will take the physician’s deposition. In this highly adversarial process, the patient’s attorney attempts to demonstrate that the physician’s negligence injured the patient. A physician being deposed as a defendant must prepare by meeting with his attorney and reviewing the issues likely to arise during the proceedings. If you are a defendant in a lawsuit, you must set aside adequate time to prepare for the deposition with your attorney;

Retained expert witness: The rules of evidence allow people with specialized knowledge to testify as experts in fields normally beyond the average juror’s experience. Because they have specialized knowledge, experts are allowed to state opinions in their testimony, such as whether a physician’s conduct complied with the applicable standards of care. Attorneys generally hire expert witnesses to present opinions in a case and will provide a summary of the expert’s testimony before the deposition; and

Treating physician: Many physicians are deposed concerning the care they provided to a patient in lawsuits that implicate the patient’s health (auto accident, work injury, disability suit). These depositions focus on the substance of treatment, the patient’s medical condition, and the patient’s prognosis. The physician normally does not have any interest in how the lawsuit is resolved. A treating physician is often compensated for his time in the deposition, even though he was not retained as an expert to testify in the lawsuit.

Golden Rules

Because depositions are stressful, lawyers ask witnesses to remember only three rules.

Tell the truth: Your only job as a witness is to tell the truth. If you follow this rule, you have discharged your obligation to the legal system.

However, keep some things in mind when telling the truth. In particular, your ability to tell the truth is subject to the limitations of your memory and the fact that your deposition may be occurring several years after you provided care. “I don’t know” and “I don’t remember” are absolutely acceptable answers in a deposition. In fact, they are preferable to inaccurate or untruthful testimony. If reviewing a document (such as the patient’s medical records) will help you provide accurate and truthful testimony, don’t be shy about asking to review them. In any situation where you are guessing or providing your best recollection, make sure the lawyer knows you are doing your best but that you can’t remember all the details.

Make sure you understand the question: This rule seems self-evident, but many lawyers ask convoluted or compound questions. Lawyers may also use language unfamiliar to you as an outsider to the legal process. For example, when lawyers use the phrase “standard of care,” it has a fairly precise definition (it is an action a reasonably careful physician would undertake under the same or similar circumstances). Ask for clarification of any question that is not clear. It’s the lawyer’s job to ask an understandable question, not the physician’s job to answer a question that doesn’t make sense. Be extra careful when the opposing lawyer objects to a question. While the lawyer’s objection does not relieve you from answering, it should signal you that the question is potentially flawed or beyond the scope of your knowledge.

Answer only what you’re asked: Invariably, physicians struggle most when they don’t focus their answers on the question posed to them.

The majority of questions in a deposition can be answered “Yes,” “No,” “I don’t know,” and “I don’t remember.” Yet many physicians tend to volunteer additional information to explain their answers. Because lawyers are trained to recognize and follow up on nonresponsive answers, the physician’s deposition becomes longer and more challenging. To provide a better answer, don’t think out loud. Ponder the question and mentally prepare your answer. Doing so lets you respond more precisely. Answer only the question you are asked. If there is an area that needs more explanation, the other party’s attorney (or your attorney) will have an opportunity to allow you to clarify the record.

To help you follow the rules, use this decision tree during your deposition (see Figure 1, left).

Regardless of the purpose of a deposition or your perceived role in it, consult with an attorney before being deposed. Even if you believe you are being deposed only as a treating provider, a deposition could lead to potential claims or raise concerns about your records. If served with a subpoena, contact your insurance company, which may retain an attorney to assist you. TH

Patrick O’Rourke works in the Office of University Counsel, Department of Litigation, University of Colorado, Denver.

It happens at least once a year. One of the physicians we represent calls and says, “I want you to look at a contract I signed.” It’s the equivalent of a patient coming to the emergency department to show the doctor the job he did with his own stitches. Although you can try to clean up trouble spots, you can’t achieve the best result.

Nonetheless, because we know some hospitalists will continue to enter employment contracts without consulting an attorney, we want to provide some basics for evaluating contracts. These can be agreements signed with a hospital or hospitalist group, or with a group practice that covers a hospital or healthcare system.

Appropriate Mindset

Parties enter contracts expecting a mutually beneficial relationship. But our job is to assume the relationship will not only fail, it will go down in flames. By assuming worst-case scenarios we can assess the risks and benefits of each contract provision.

Identify the Parties

Although this may seem self-evident, it’s not. A physician may think he’s contracting with another physician, but the agreement is with a corporation. There are various options for structuring healthcare entities, each with advantages and disadvantages. All are designed to limit liability. There are also legal limits on physician arrangements with certain types of entities. It’s important to understand how the entity with which you’re contracting is organized and operated.

The status of the contracting physician is equally important. A hospitalist can contract individually as an employee, independent contractor, member (full or limited), or through his/her own professional corporation. These options have significant implications for compensation, tax, insurance, and liability.

Define the Purpose

Many contracts begin with recitals, or introductory paragraphs that explain the reasons for the contract. Most people zoom past the recitals—but that’s a mistake. A court asked to resolve a contract dispute attempts to construe the contract in a manner that effectuates the parties’ intent. Make sure recitals accurately state the parties’ intent.

Know the Benefits

All contracts include “consideration,” which is something of value exchanged for contractual obligations. What constitutes fair consideration varies by contract. Important considerations include:

• Compensation (salaries, bonuses, payment formulas, and profit distributions);
• Insurance (health, dental, vision, life, and disability);
• Paid time off (illness, vacation, and professional meetings);
• Retirement plans (401k and profit-sharing plans);
• Professional fees (hospital privileges, professional organizations, medical license, drug enforcement, administration registration, continuing medical education, subscriptions);
• Malpractice insurance and tail coverage;
• Indemnity; and
• Services and equipment (billing, support staff, equipment, and other resources).

All benefits must be adequately described in a contract to be enforceable because most contracts include “integration” clauses stating that the written agreement is the entire agreement between the parties and “no other agreements, written or oral, exist.” Courts will not let parties claim benefits not reflected in the written contract.

Know the Obligations

For a legally binding contract, each party must incur an obligation in exchange for consideration. For example, in a services agreement, a physician can readily agree to provide medical services in exchange for compensation and other benefits. Most contracts fail to provide enough detail about how obligations must be performed. When a physician agrees to “devote their full professional attention and best efforts” to a practice, what does that mean? Who determines whether one has devoted his “best efforts?”

Provisions that impose duties or obligations as described in other documents are also troublesome. Courts enforce obligations imposed by other documents incorporated into a contract, even if a party did not possess the other document at the time he signed the contract. Never agree to obligations contained in a document you haven’t read.

Reasonable Termination

Except for duties imposed by law or contract, parties generally don’t have continuing obligations to each other. For example, most states presume employment is at-will: Either party can terminate the employment at any time, without notice, for any lawful reason. Thus, the manager at McDonald’s can terminate a cashier in the middle of a shift because he thinks the cashier is rude. The cashier can quit his position in the middle of a shift because he doesn’t like his job.

Contract obligations limiting the circumstances under which employment can terminate comprise a major exception to employment at will. For example, a physician might agree to provide 90 days’ notice before leaving his employment. While the physician might agree to this provision, certain circumstances should allow for immediate termination. This includes when the practice has financial issues (fails to pay the physician or enters bankruptcy), allows insurance to lapse, fails to provide adequate staff, improperly bills, or sells to another owner. A healthcare entity can also have legitimate reasons for immediately terminating a physician, such as loss or suspension of his medical license, hospital privileges, or DEA registration.

Provisions that allow termination for vague reasons such as “conduct detrimental to the practice” or “failure to provide services in a professional manner” are problematic. It wouldn’t be hard to manufacture an instance where a physician engaged in conduct detrimental to the practice. Being late for an appointment is detrimental to the practice but probably unavoidable in some circumstances.

Be wary of contractual provisions that give one party unilateral or unlimited discretion over a term.

Evaluate Survival Terms

Some relationships simply end, with the parties going their separate ways. But contracts often include obligations that survive termination. A party to a contract should always make sure to understand the scope and effect of any contractual provision that continues after the parties’ relationship has otherwise ended.

In physician contracts, the most prevalent survival provisions are non-compete clauses. Non-compete clauses provide a good model to discuss post-termination obligations. A standard non-compete clause might read like this:

Dr. Jones will not, in the three years immediately following termination of this agreement, practice medicine in any location within a three-mile radius of any location where he has provided services for P.C.

If Dr. Jones has performed surgery at both area hospitals while under contract, this clause could require him to pack up his stethoscope and leave town. When coupled with a provision allowing an injunction or liquidated damages, non-compete clauses are a big deal and give rise to lots of lawsuits. Even in circumstances where a non-compete clause is unenforceable, a party is unlikely to receive a favorable determination without substantial litigation. Negotiate a non-compete clause or other survival terms everyone can live with.

Understand Remedies

Lawyers use the term “remedy” to describe the recourse available when a party breaches an agreement. Remedies come in three basic forms:

• Compensatory damages;
• Liquidated damages; and
• Equitable relief.

Compensatory damages are monetary awards designed to compensate an injured party for actual loss. The party seeking compensatory damages must prove the nature of the injury and the amount of compensation that should be awarded.

Liquidated damages are monetary awards to compensate a party for an agreed-upon loss. So long as the parties agree it would be difficult to calculate an actual award of damages, that the amount of liquidated damages is reasonable, and that the award of liquidated damages is not punitive, a court would likely enforce the liquidated damages provision.

Because liquidated damage provisions relieve a party of the burden of proving actual damages, they should be carefully considered.

Equitable relief consists of non-monetary remedies, such as an injunction. If a party agrees to injunctive relief to enforce a contract term, a judge could order the party discontinue certain conduct. If the party disobeys, he/she could be held in contempt of court and jailed. Injunctive relief alters a legal presumption that breaches of contract can be remedied through monetary awards. TH

Patrick O’Rourke works in the Office of University Counsel, Department of Litigation, University of Colorado, Denver.

It happens at least once a year. One of the physicians we represent calls and says, “I want you to look at a contract I signed.” It’s the equivalent of a patient coming to the emergency department to show the doctor the job he did with his own stitches. Although you can try to clean up trouble spots, you can’t achieve the best result.

Nonetheless, because we know some hospitalists will continue to enter employment contracts without consulting an attorney, we want to provide some basics for evaluating contracts. These can be agreements signed with a hospital or hospitalist group, or with a group practice that covers a hospital or healthcare system.

Appropriate Mindset

Parties enter contracts expecting a mutually beneficial relationship. But our job is to assume the relationship will not only fail, it will go down in flames. By assuming worst-case scenarios we can assess the risks and benefits of each contract provision.

Identify the Parties

Although this may seem self-evident, it’s not. A physician may think he’s contracting with another physician, but the agreement is with a corporation. There are various options for structuring healthcare entities, each with advantages and disadvantages. All are designed to limit liability. There are also legal limits on physician arrangements with certain types of entities. It’s important to understand how the entity with which you’re contracting is organized and operated.

The status of the contracting physician is equally important. A hospitalist can contract individually as an employee, independent contractor, member (full or limited), or through his/her own professional corporation. These options have significant implications for compensation, tax, insurance, and liability.

Define the Purpose

Many contracts begin with recitals, or introductory paragraphs that explain the reasons for the contract. Most people zoom past the recitals—but that’s a mistake. A court asked to resolve a contract dispute attempts to construe the contract in a manner that effectuates the parties’ intent. Make sure recitals accurately state the parties’ intent.

Know the Benefits

All contracts include “consideration,” which is something of value exchanged for contractual obligations. What constitutes fair consideration varies by contract. Important considerations include:

• Compensation (salaries, bonuses, payment formulas, and profit distributions);
• Insurance (health, dental, vision, life, and disability);
• Paid time off (illness, vacation, and professional meetings);
• Retirement plans (401k and profit-sharing plans);
• Professional fees (hospital privileges, professional organizations, medical license, drug enforcement, administration registration, continuing medical education, subscriptions);
• Malpractice insurance and tail coverage;
• Indemnity; and
• Services and equipment (billing, support staff, equipment, and other resources).

All benefits must be adequately described in a contract to be enforceable because most contracts include “integration” clauses stating that the written agreement is the entire agreement between the parties and “no other agreements, written or oral, exist.” Courts will not let parties claim benefits not reflected in the written contract.

Know the Obligations

For a legally binding contract, each party must incur an obligation in exchange for consideration. For example, in a services agreement, a physician can readily agree to provide medical services in exchange for compensation and other benefits. Most contracts fail to provide enough detail about how obligations must be performed. When a physician agrees to “devote their full professional attention and best efforts” to a practice, what does that mean? Who determines whether one has devoted his “best efforts?”

Provisions that impose duties or obligations as described in other documents are also troublesome. Courts enforce obligations imposed by other documents incorporated into a contract, even if a party did not possess the other document at the time he signed the contract. Never agree to obligations contained in a document you haven’t read.

Reasonable Termination

Except for duties imposed by law or contract, parties generally don’t have continuing obligations to each other. For example, most states presume employment is at-will: Either party can terminate the employment at any time, without notice, for any lawful reason. Thus, the manager at McDonald’s can terminate a cashier in the middle of a shift because he thinks the cashier is rude. The cashier can quit his position in the middle of a shift because he doesn’t like his job.

Contract obligations limiting the circumstances under which employment can terminate comprise a major exception to employment at will. For example, a physician might agree to provide 90 days’ notice before leaving his employment. While the physician might agree to this provision, certain circumstances should allow for immediate termination. This includes when the practice has financial issues (fails to pay the physician or enters bankruptcy), allows insurance to lapse, fails to provide adequate staff, improperly bills, or sells to another owner. A healthcare entity can also have legitimate reasons for immediately terminating a physician, such as loss or suspension of his medical license, hospital privileges, or DEA registration.

Provisions that allow termination for vague reasons such as “conduct detrimental to the practice” or “failure to provide services in a professional manner” are problematic. It wouldn’t be hard to manufacture an instance where a physician engaged in conduct detrimental to the practice. Being late for an appointment is detrimental to the practice but probably unavoidable in some circumstances.

Be wary of contractual provisions that give one party unilateral or unlimited discretion over a term.

Evaluate Survival Terms

Some relationships simply end, with the parties going their separate ways. But contracts often include obligations that survive termination. A party to a contract should always make sure to understand the scope and effect of any contractual provision that continues after the parties’ relationship has otherwise ended.

In physician contracts, the most prevalent survival provisions are non-compete clauses. Non-compete clauses provide a good model to discuss post-termination obligations. A standard non-compete clause might read like this:

Dr. Jones will not, in the three years immediately following termination of this agreement, practice medicine in any location within a three-mile radius of any location where he has provided services for P.C.

If Dr. Jones has performed surgery at both area hospitals while under contract, this clause could require him to pack up his stethoscope and leave town. When coupled with a provision allowing an injunction or liquidated damages, non-compete clauses are a big deal and give rise to lots of lawsuits. Even in circumstances where a non-compete clause is unenforceable, a party is unlikely to receive a favorable determination without substantial litigation. Negotiate a non-compete clause or other survival terms everyone can live with.

Understand Remedies

Lawyers use the term “remedy” to describe the recourse available when a party breaches an agreement. Remedies come in three basic forms:

• Compensatory damages;
• Liquidated damages; and
• Equitable relief.

Compensatory damages are monetary awards designed to compensate an injured party for actual loss. The party seeking compensatory damages must prove the nature of the injury and the amount of compensation that should be awarded.

Liquidated damages are monetary awards to compensate a party for an agreed-upon loss. So long as the parties agree it would be difficult to calculate an actual award of damages, that the amount of liquidated damages is reasonable, and that the award of liquidated damages is not punitive, a court would likely enforce the liquidated damages provision.

Because liquidated damage provisions relieve a party of the burden of proving actual damages, they should be carefully considered.

Equitable relief consists of non-monetary remedies, such as an injunction. If a party agrees to injunctive relief to enforce a contract term, a judge could order the party discontinue certain conduct. If the party disobeys, he/she could be held in contempt of court and jailed. Injunctive relief alters a legal presumption that breaches of contract can be remedied through monetary awards. TH

Patrick O’Rourke works in the Office of University Counsel, Department of Litigation, University of Colorado, Denver.

It happens at least once a year. One of the physicians we represent calls and says, “I want you to look at a contract I signed.” It’s the equivalent of a patient coming to the emergency department to show the doctor the job he did with his own stitches. Although you can try to clean up trouble spots, you can’t achieve the best result.

Nonetheless, because we know some hospitalists will continue to enter employment contracts without consulting an attorney, we want to provide some basics for evaluating contracts. These can be agreements signed with a hospital or hospitalist group, or with a group practice that covers a hospital or healthcare system.

Appropriate Mindset

Parties enter contracts expecting a mutually beneficial relationship. But our job is to assume the relationship will not only fail, it will go down in flames. By assuming worst-case scenarios we can assess the risks and benefits of each contract provision.

Identify the Parties

Although this may seem self-evident, it’s not. A physician may think he’s contracting with another physician, but the agreement is with a corporation. There are various options for structuring healthcare entities, each with advantages and disadvantages. All are designed to limit liability. There are also legal limits on physician arrangements with certain types of entities. It’s important to understand how the entity with which you’re contracting is organized and operated.

The status of the contracting physician is equally important. A hospitalist can contract individually as an employee, independent contractor, member (full or limited), or through his/her own professional corporation. These options have significant implications for compensation, tax, insurance, and liability.

Define the Purpose

Many contracts begin with recitals, or introductory paragraphs that explain the reasons for the contract. Most people zoom past the recitals—but that’s a mistake. A court asked to resolve a contract dispute attempts to construe the contract in a manner that effectuates the parties’ intent. Make sure recitals accurately state the parties’ intent.

Know the Benefits

All contracts include “consideration,” which is something of value exchanged for contractual obligations. What constitutes fair consideration varies by contract. Important considerations include:

• Compensation (salaries, bonuses, payment formulas, and profit distributions);
• Insurance (health, dental, vision, life, and disability);
• Paid time off (illness, vacation, and professional meetings);
• Retirement plans (401k and profit-sharing plans);
• Professional fees (hospital privileges, professional organizations, medical license, drug enforcement, administration registration, continuing medical education, subscriptions);
• Malpractice insurance and tail coverage;
• Indemnity; and
• Services and equipment (billing, support staff, equipment, and other resources).

All benefits must be adequately described in a contract to be enforceable because most contracts include “integration” clauses stating that the written agreement is the entire agreement between the parties and “no other agreements, written or oral, exist.” Courts will not let parties claim benefits not reflected in the written contract.

Know the Obligations

For a legally binding contract, each party must incur an obligation in exchange for consideration. For example, in a services agreement, a physician can readily agree to provide medical services in exchange for compensation and other benefits. Most contracts fail to provide enough detail about how obligations must be performed. When a physician agrees to “devote their full professional attention and best efforts” to a practice, what does that mean? Who determines whether one has devoted his “best efforts?”

Provisions that impose duties or obligations as described in other documents are also troublesome. Courts enforce obligations imposed by other documents incorporated into a contract, even if a party did not possess the other document at the time he signed the contract. Never agree to obligations contained in a document you haven’t read.

Reasonable Termination

Except for duties imposed by law or contract, parties generally don’t have continuing obligations to each other. For example, most states presume employment is at-will: Either party can terminate the employment at any time, without notice, for any lawful reason. Thus, the manager at McDonald’s can terminate a cashier in the middle of a shift because he thinks the cashier is rude. The cashier can quit his position in the middle of a shift because he doesn’t like his job.

Contract obligations limiting the circumstances under which employment can terminate comprise a major exception to employment at will. For example, a physician might agree to provide 90 days’ notice before leaving his employment. While the physician might agree to this provision, certain circumstances should allow for immediate termination. This includes when the practice has financial issues (fails to pay the physician or enters bankruptcy), allows insurance to lapse, fails to provide adequate staff, improperly bills, or sells to another owner. A healthcare entity can also have legitimate reasons for immediately terminating a physician, such as loss or suspension of his medical license, hospital privileges, or DEA registration.

Provisions that allow termination for vague reasons such as “conduct detrimental to the practice” or “failure to provide services in a professional manner” are problematic. It wouldn’t be hard to manufacture an instance where a physician engaged in conduct detrimental to the practice. Being late for an appointment is detrimental to the practice but probably unavoidable in some circumstances.

Be wary of contractual provisions that give one party unilateral or unlimited discretion over a term.

Evaluate Survival Terms

Some relationships simply end, with the parties going their separate ways. But contracts often include obligations that survive termination. A party to a contract should always make sure to understand the scope and effect of any contractual provision that continues after the parties’ relationship has otherwise ended.

In physician contracts, the most prevalent survival provisions are non-compete clauses. Non-compete clauses provide a good model to discuss post-termination obligations. A standard non-compete clause might read like this:

Dr. Jones will not, in the three years immediately following termination of this agreement, practice medicine in any location within a three-mile radius of any location where he has provided services for P.C.

If Dr. Jones has performed surgery at both area hospitals while under contract, this clause could require him to pack up his stethoscope and leave town. When coupled with a provision allowing an injunction or liquidated damages, non-compete clauses are a big deal and give rise to lots of lawsuits. Even in circumstances where a non-compete clause is unenforceable, a party is unlikely to receive a favorable determination without substantial litigation. Negotiate a non-compete clause or other survival terms everyone can live with.

Understand Remedies

Lawyers use the term “remedy” to describe the recourse available when a party breaches an agreement. Remedies come in three basic forms:

• Compensatory damages;
• Liquidated damages; and
• Equitable relief.

Compensatory damages are monetary awards designed to compensate an injured party for actual loss. The party seeking compensatory damages must prove the nature of the injury and the amount of compensation that should be awarded.

Liquidated damages are monetary awards to compensate a party for an agreed-upon loss. So long as the parties agree it would be difficult to calculate an actual award of damages, that the amount of liquidated damages is reasonable, and that the award of liquidated damages is not punitive, a court would likely enforce the liquidated damages provision.

Because liquidated damage provisions relieve a party of the burden of proving actual damages, they should be carefully considered.

Equitable relief consists of non-monetary remedies, such as an injunction. If a party agrees to injunctive relief to enforce a contract term, a judge could order the party discontinue certain conduct. If the party disobeys, he/she could be held in contempt of court and jailed. Injunctive relief alters a legal presumption that breaches of contract can be remedied through monetary awards. TH

Patrick O’Rourke works in the Office of University Counsel, Department of Litigation, University of Colorado, Denver.

Like many people, we like to sing while secure in the anonymity of our cars. This morning, one of us was wailing along with Elton John as he sang “Sorry Seems to Be the Hardest Word”:

It’s sad, so sad

Why can’t we talk it over

Oh, it seems to me

That sorry seems to be the hardest word.

That verse frames a critical legal question physicians regularly encounter: how to communicate with patients after an unexpected outcome. More precisely, should a physician apologize to a patient who suffers complications because of that physician’s treatment?

Traditionally, after a patient suffered a complication, defense lawyers were reluctant to allow the physician to express apologies or regret. The defense lawyer feared the apology would be treated as an “admission against interest.” In other words, the defense lawyer wanted to prevent a plaintiff’s lawyer from someday arguing that the physician’s apology was an admission of negligence or wrongdoing.

But the lawyer’s strategy fails. The patient wants the physician to apologize for an error. In fact, the patient distrusts a physician who does not admit errors.

‘‘Although a physician may wish to tell a patient when he has made a mistake, lawyers often order doctors to say nothing,’’ wrote University of Florida law professor Jonathan R. Cohen in the Southern California Law Review.1 “The physician’s silence may then trigger the patient’s anger. This alienation may then prompt the patient to sue.”

These observations are consistent with studies demonstrating that patients are far less to sue when provided with a full explanation and apology.2

Certainly no physician wants to make a statement that a plaintiff’s lawyer will use against him in court. But the same physician rationally wants to take any steps that might prevent the patient from feeling as though he or she needs to consult with a plaintiff’s lawyer. So, what’s a physician to do when caught between the hospital’s lawsuit-fearing attorney and a patient who expects his doctor to communicate with her honestly and forthrightly?

Fortunately, several state legislatures have recognized this tension and passed legislation that encourages physicians to apologize without facing the prospect that a plaintiff’s lawyer will argue that the physician apologized only because he knew he did something wrong. An example best illustrates how such “I’m sorry” statutes work.

Dr. Smith is treating a 22-year-old patient, John Elway, for a fractured fibula. Dr. Smith sees no signs of neurological compromise while the patient is in a cast. After the cast is removed, it appears the patient has lost function in the leg because the cast was too tight. The patient was a star college athlete who was expected to be drafted into the NFL, but now likely won’t be drafted. Dr. Smith tells the patient: “It’s my fault this happened. I’m really sorry that I didn’t pick up on this sooner.”

Does Dr. Smith’s statement come into evidence in court? Does part of it? The answers probably depend upon which state’s apology statute is applied. Massachusetts was one of the first states to pass an apology statute. It reads:

Statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering or death of a person involved in an accident and made to the person or to the family of such a person shall be inadmissible as evidence of an admission of liability in a civil action.

Significantly, the Massachusetts statute applies to people “involved in an accident,” which might imply that it is limited to automobile accidents or workplace accidents. The Massachusetts statute prevents this limited construction by providing a broad definition of “accident,” including any “occurrence resulting in injury or death to one or more persons which is not the result of a willful action by a party.” This definition would encompass ordinary medical negligence.

It would seem clear that the statute would protect Dr. Smith if he simply stated: “I want you to know how sorry I am this happened. I feel awful that you experienced this complication.”

But if Dr. Smith said, “It’s my fault this happened,” would the Massachusetts statute protect Dr. Smith? That’s a much harder call. Saying “It’s my fault” is technically not an expression of “sympathy or a general act of benevolence.” There no clear answer under Massachusetts law. But we believe the result would probably depend on whether the judge hearing the case thought this statement occurred during an overall act of apology.

The answer is clearer in California. That state’s apology statute reads:

The portion of statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering or death of a person involved in an accident and made to that person or to the family of that person shall be inadmissible as evidence of an admission of liability in a civil action. A statement of fault, however, which is part of, or in addition to, any of the above shall not be inadmissible pursuant to this section.

California draws a clear distinction between “the portion of statements ... expressing sympathy or a general sense of benevolence” and “a statement of fault.”

In our scenario, the jury would almost certainly be able to hear Dr. Smith’s statement, “It’s my fault this happened.” Critics of California’s law believe it creates too narrow a window for physicians to believe that plaintiff’s lawyers will not use their apology against them in a lawsuit.3

While Dr. Smith’s statement is likely to come into evidence in California, it’s also clear the opposite would occur in Colorado. Colorado’s apology statute, which specifically applies to medical malpractice actions, reads:

In any civil action brought by an alleged victim of an unanticipated outcome of medical care ... any and all statements … expressing apology, fault, sympathy, commiseration, condolence, compassion or a general sense of benevolence ... shall be inadmissible as evidence of an admission of liability or as evidence of an admission against interest.

Because Colorado’s statute specifically renders statements of “fault” inadmissible, a jury would not be able to consider any of Dr. Smith’s statements made during the course of his apology. Colorado’s law provides the physician with the most protection. Critics of Colorado’s law believe it’s unfair for physicians to admit fault to their patients in the hospital, then deny liability after the patient files a lawsuit.

Twenty-six other states have passed apology statutes; each works a bit differently. The choice of words matters. Legally, there is a big difference between a physician telling a patient, “I’m sorry about your pain” or saying, “It’s my fault you’re in pain.”

While apologies are valuable and important in relationships of trust—including the relationship between physicians and patients—we suggest you consult an experienced lawyer when crafting an apology to make sure it conveys your sympathies without opening a door to liability. TH

Patrick O’Rourke works in the Office of University Counsel, Department of Litigation, Denver.

References

1. Cohen JR. Advising clients to apologize. Southern California Law Review. 1999;72:1009-1131.
2. Hickson GB, Clayton EW, Githens PB, et al. Factors that prompted families to file medical malpractice claims following perinatal injuries. JAMA. 1992 Mar;267(10):1359-1363.
3. Eisenberg D. When doctors say, “We’re sorry.” Time. 2005 Aug 15;166(7):50-52.

Like many people, we like to sing while secure in the anonymity of our cars. This morning, one of us was wailing along with Elton John as he sang “Sorry Seems to Be the Hardest Word”:

It’s sad, so sad

Why can’t we talk it over

Oh, it seems to me

That sorry seems to be the hardest word.

That verse frames a critical legal question physicians regularly encounter: how to communicate with patients after an unexpected outcome. More precisely, should a physician apologize to a patient who suffers complications because of that physician’s treatment?

Traditionally, after a patient suffered a complication, defense lawyers were reluctant to allow the physician to express apologies or regret. The defense lawyer feared the apology would be treated as an “admission against interest.” In other words, the defense lawyer wanted to prevent a plaintiff’s lawyer from someday arguing that the physician’s apology was an admission of negligence or wrongdoing.

But the lawyer’s strategy fails. The patient wants the physician to apologize for an error. In fact, the patient distrusts a physician who does not admit errors.

‘‘Although a physician may wish to tell a patient when he has made a mistake, lawyers often order doctors to say nothing,’’ wrote University of Florida law professor Jonathan R. Cohen in the Southern California Law Review.1 “The physician’s silence may then trigger the patient’s anger. This alienation may then prompt the patient to sue.”

These observations are consistent with studies demonstrating that patients are far less to sue when provided with a full explanation and apology.2

Certainly no physician wants to make a statement that a plaintiff’s lawyer will use against him in court. But the same physician rationally wants to take any steps that might prevent the patient from feeling as though he or she needs to consult with a plaintiff’s lawyer. So, what’s a physician to do when caught between the hospital’s lawsuit-fearing attorney and a patient who expects his doctor to communicate with her honestly and forthrightly?

Fortunately, several state legislatures have recognized this tension and passed legislation that encourages physicians to apologize without facing the prospect that a plaintiff’s lawyer will argue that the physician apologized only because he knew he did something wrong. An example best illustrates how such “I’m sorry” statutes work.

Dr. Smith is treating a 22-year-old patient, John Elway, for a fractured fibula. Dr. Smith sees no signs of neurological compromise while the patient is in a cast. After the cast is removed, it appears the patient has lost function in the leg because the cast was too tight. The patient was a star college athlete who was expected to be drafted into the NFL, but now likely won’t be drafted. Dr. Smith tells the patient: “It’s my fault this happened. I’m really sorry that I didn’t pick up on this sooner.”

Does Dr. Smith’s statement come into evidence in court? Does part of it? The answers probably depend upon which state’s apology statute is applied. Massachusetts was one of the first states to pass an apology statute. It reads:

Statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering or death of a person involved in an accident and made to the person or to the family of such a person shall be inadmissible as evidence of an admission of liability in a civil action.

Significantly, the Massachusetts statute applies to people “involved in an accident,” which might imply that it is limited to automobile accidents or workplace accidents. The Massachusetts statute prevents this limited construction by providing a broad definition of “accident,” including any “occurrence resulting in injury or death to one or more persons which is not the result of a willful action by a party.” This definition would encompass ordinary medical negligence.

It would seem clear that the statute would protect Dr. Smith if he simply stated: “I want you to know how sorry I am this happened. I feel awful that you experienced this complication.”

But if Dr. Smith said, “It’s my fault this happened,” would the Massachusetts statute protect Dr. Smith? That’s a much harder call. Saying “It’s my fault” is technically not an expression of “sympathy or a general act of benevolence.” There no clear answer under Massachusetts law. But we believe the result would probably depend on whether the judge hearing the case thought this statement occurred during an overall act of apology.

The answer is clearer in California. That state’s apology statute reads:

The portion of statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering or death of a person involved in an accident and made to that person or to the family of that person shall be inadmissible as evidence of an admission of liability in a civil action. A statement of fault, however, which is part of, or in addition to, any of the above shall not be inadmissible pursuant to this section.

California draws a clear distinction between “the portion of statements ... expressing sympathy or a general sense of benevolence” and “a statement of fault.”

In our scenario, the jury would almost certainly be able to hear Dr. Smith’s statement, “It’s my fault this happened.” Critics of California’s law believe it creates too narrow a window for physicians to believe that plaintiff’s lawyers will not use their apology against them in a lawsuit.3

While Dr. Smith’s statement is likely to come into evidence in California, it’s also clear the opposite would occur in Colorado. Colorado’s apology statute, which specifically applies to medical malpractice actions, reads:

In any civil action brought by an alleged victim of an unanticipated outcome of medical care ... any and all statements … expressing apology, fault, sympathy, commiseration, condolence, compassion or a general sense of benevolence ... shall be inadmissible as evidence of an admission of liability or as evidence of an admission against interest.

Because Colorado’s statute specifically renders statements of “fault” inadmissible, a jury would not be able to consider any of Dr. Smith’s statements made during the course of his apology. Colorado’s law provides the physician with the most protection. Critics of Colorado’s law believe it’s unfair for physicians to admit fault to their patients in the hospital, then deny liability after the patient files a lawsuit.

Twenty-six other states have passed apology statutes; each works a bit differently. The choice of words matters. Legally, there is a big difference between a physician telling a patient, “I’m sorry about your pain” or saying, “It’s my fault you’re in pain.”

While apologies are valuable and important in relationships of trust—including the relationship between physicians and patients—we suggest you consult an experienced lawyer when crafting an apology to make sure it conveys your sympathies without opening a door to liability. TH

Patrick O’Rourke works in the Office of University Counsel, Department of Litigation, Denver.

References

1. Cohen JR. Advising clients to apologize. Southern California Law Review. 1999;72:1009-1131.
2. Hickson GB, Clayton EW, Githens PB, et al. Factors that prompted families to file medical malpractice claims following perinatal injuries. JAMA. 1992 Mar;267(10):1359-1363.
3. Eisenberg D. When doctors say, “We’re sorry.” Time. 2005 Aug 15;166(7):50-52.

Like many people, we like to sing while secure in the anonymity of our cars. This morning, one of us was wailing along with Elton John as he sang “Sorry Seems to Be the Hardest Word”:

It’s sad, so sad

Why can’t we talk it over

Oh, it seems to me

That sorry seems to be the hardest word.

That verse frames a critical legal question physicians regularly encounter: how to communicate with patients after an unexpected outcome. More precisely, should a physician apologize to a patient who suffers complications because of that physician’s treatment?

Traditionally, after a patient suffered a complication, defense lawyers were reluctant to allow the physician to express apologies or regret. The defense lawyer feared the apology would be treated as an “admission against interest.” In other words, the defense lawyer wanted to prevent a plaintiff’s lawyer from someday arguing that the physician’s apology was an admission of negligence or wrongdoing.

But the lawyer’s strategy fails. The patient wants the physician to apologize for an error. In fact, the patient distrusts a physician who does not admit errors.

‘‘Although a physician may wish to tell a patient when he has made a mistake, lawyers often order doctors to say nothing,’’ wrote University of Florida law professor Jonathan R. Cohen in the Southern California Law Review.1 “The physician’s silence may then trigger the patient’s anger. This alienation may then prompt the patient to sue.”

These observations are consistent with studies demonstrating that patients are far less to sue when provided with a full explanation and apology.2

Certainly no physician wants to make a statement that a plaintiff’s lawyer will use against him in court. But the same physician rationally wants to take any steps that might prevent the patient from feeling as though he or she needs to consult with a plaintiff’s lawyer. So, what’s a physician to do when caught between the hospital’s lawsuit-fearing attorney and a patient who expects his doctor to communicate with her honestly and forthrightly?

Fortunately, several state legislatures have recognized this tension and passed legislation that encourages physicians to apologize without facing the prospect that a plaintiff’s lawyer will argue that the physician apologized only because he knew he did something wrong. An example best illustrates how such “I’m sorry” statutes work.

Dr. Smith is treating a 22-year-old patient, John Elway, for a fractured fibula. Dr. Smith sees no signs of neurological compromise while the patient is in a cast. After the cast is removed, it appears the patient has lost function in the leg because the cast was too tight. The patient was a star college athlete who was expected to be drafted into the NFL, but now likely won’t be drafted. Dr. Smith tells the patient: “It’s my fault this happened. I’m really sorry that I didn’t pick up on this sooner.”

Does Dr. Smith’s statement come into evidence in court? Does part of it? The answers probably depend upon which state’s apology statute is applied. Massachusetts was one of the first states to pass an apology statute. It reads:

Statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering or death of a person involved in an accident and made to the person or to the family of such a person shall be inadmissible as evidence of an admission of liability in a civil action.

Significantly, the Massachusetts statute applies to people “involved in an accident,” which might imply that it is limited to automobile accidents or workplace accidents. The Massachusetts statute prevents this limited construction by providing a broad definition of “accident,” including any “occurrence resulting in injury or death to one or more persons which is not the result of a willful action by a party.” This definition would encompass ordinary medical negligence.

It would seem clear that the statute would protect Dr. Smith if he simply stated: “I want you to know how sorry I am this happened. I feel awful that you experienced this complication.”

But if Dr. Smith said, “It’s my fault this happened,” would the Massachusetts statute protect Dr. Smith? That’s a much harder call. Saying “It’s my fault” is technically not an expression of “sympathy or a general act of benevolence.” There no clear answer under Massachusetts law. But we believe the result would probably depend on whether the judge hearing the case thought this statement occurred during an overall act of apology.

The answer is clearer in California. That state’s apology statute reads:

The portion of statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering or death of a person involved in an accident and made to that person or to the family of that person shall be inadmissible as evidence of an admission of liability in a civil action. A statement of fault, however, which is part of, or in addition to, any of the above shall not be inadmissible pursuant to this section.

California draws a clear distinction between “the portion of statements ... expressing sympathy or a general sense of benevolence” and “a statement of fault.”

In our scenario, the jury would almost certainly be able to hear Dr. Smith’s statement, “It’s my fault this happened.” Critics of California’s law believe it creates too narrow a window for physicians to believe that plaintiff’s lawyers will not use their apology against them in a lawsuit.3

While Dr. Smith’s statement is likely to come into evidence in California, it’s also clear the opposite would occur in Colorado. Colorado’s apology statute, which specifically applies to medical malpractice actions, reads:

In any civil action brought by an alleged victim of an unanticipated outcome of medical care ... any and all statements … expressing apology, fault, sympathy, commiseration, condolence, compassion or a general sense of benevolence ... shall be inadmissible as evidence of an admission of liability or as evidence of an admission against interest.

Because Colorado’s statute specifically renders statements of “fault” inadmissible, a jury would not be able to consider any of Dr. Smith’s statements made during the course of his apology. Colorado’s law provides the physician with the most protection. Critics of Colorado’s law believe it’s unfair for physicians to admit fault to their patients in the hospital, then deny liability after the patient files a lawsuit.

Twenty-six other states have passed apology statutes; each works a bit differently. The choice of words matters. Legally, there is a big difference between a physician telling a patient, “I’m sorry about your pain” or saying, “It’s my fault you’re in pain.”

While apologies are valuable and important in relationships of trust—including the relationship between physicians and patients—we suggest you consult an experienced lawyer when crafting an apology to make sure it conveys your sympathies without opening a door to liability. TH

Patrick O’Rourke works in the Office of University Counsel, Department of Litigation, Denver.

References

1. Cohen JR. Advising clients to apologize. Southern California Law Review. 1999;72:1009-1131.
2. Hickson GB, Clayton EW, Githens PB, et al. Factors that prompted families to file medical malpractice claims following perinatal injuries. JAMA. 1992 Mar;267(10):1359-1363.
3. Eisenberg D. When doctors say, “We’re sorry.” Time. 2005 Aug 15;166(7):50-52.

We’ve defended physicians involved in lawsuits for more than a decade. After representing dozens of physicians, nurses, and other healthcare professionals, we can say one thing for certain: No one likes to get sued.

Good physicians struggle with the litigation process. Even when their care has been absolutely appropriate, many doctors experience great anxiety when they are accused of having negligently injured a patient. Because they have trained so hard to gain their expertise, many of our clients have found that a lawsuit strikes at them personally as well as professionally. At the end of the day, lawsuits cause stress, take physicians away from their personal lives, and often lead to serious financial and professional consequences.

Therefore, one of the questions that we most often receive is, “How can a physician avoid lawsuits?”

Top 10 Ways to Stay Out of Litigation

1) Good documentation: Often, in a lawsuit, plaintiffs’ attorneys will tell the jury the old adage, “If it’s not in the record, it didn’t happen.” What everyone who has practiced medicine knows, however, is that many things don’t make it to the chart. Physicians don’t have the time to recount their conversations with patients verbatim. What we want to see in the chart are the following:

1. A description of the information provided by the patient that factored into your diagnoses or treatment decisions;
2. A description of the physical findings or laboratory results that factored into your diagnoses and treatment decisions;
3. A discussion of why you made a particular decision;
4. A discussion of the course of treatment you selected; and
5. A discussion of your anticipated follow-up.

Of these elements, we most often fail to see a discussion of why you made a particular decision, and this is a crucial piece of the record. As you know, physicians often have a broad range of treatment choices. Including information about why you selected a particular course of treatment—in light of the available data—makes the record more understandable to the jury. A good chart lays out more than just the physician’s actions. A good chart is so complete that another physician could assume care for the patient tomorrow, easily understanding both the course of treatment and why you chose it.

2) Good communication: In his book Blink, Malcolm Gladwell describes something defense lawyers have known for many years: That the quality of the care does not determine whether or not a physician gets sued. There are many instances in which a physician who makes a mistake that causes an injury manages to avoid litigation. There are also many instances in which a physician’s care is appropriate, but the patient sues the physician after a recognized complication. What makes the difference?

More often than not, the determining factor in whether or not a physician is sued is the patient’s perception of whether or not the physician cared about her. In situations in which patients leave the physician’s office believing that the physician listened carefully to their complaints, spent the time to explain the course of treatment, and genuinely cared about them as people, we don’t see as many lawsuits. If a physician explains why a complication occurred—not just that it occurred—and appears empathetic to the patient, she has less of a motivation to sue. Conversely, if the patient feels like the physician sees her as a commodity or didn’t take the time to understand her complaints, the risk of litigation goes up.

One of the most important aspects of good communication is adequate informed consent. Remember, informed consent is a dialogue—not a lecture. It requires physicians to discuss:

1. The substantial risks of the treatment;
2. The benefits of the treatment; and
3. The alternatives to the treatment. Sometimes it’s difficult to determine the substantial risks because a patient and a physician may view the magnitude of a particular risk differently. Our rule of thumb is that any risks associated with serious long-term sequelae, such as permanent impairment, must be discussed, even if the probability of the risk occurring is remote.

3) Good consultation: Many hospitalists do not have long-term relationships with their patients. After a course of hospital treatment, the patient will return to her regular physician. A common breakdown occurs when the consultation between the hospitalist and the regular physician is inadequate.

On the front end, the hospitalist who receives a patient should take the opportunity, if possible, to consult with the regular physician about any ongoing course of treatment. Unfortunately, patients are not always accurate medical historians and may not fully appreciate their conditions or courses of treatment. Consulting with the regular physician helps to eliminate the possibility that an important aspect of the patient’s history or condition is overlooked.

On the back end, when the regular physician resumes care of the patient, he should be able to reinforce the course of hospital care and provide an additional layer of education about why the hospitalist made certain treatment decisions. Of course, the regular physician can serve in this role only if the hospitalist has taken the opportunity to inform the regular physician about the course of care.

4) Accurate representations: We are seeing more cases in which physicians are being sued for alleged misrepresentations to patients.

For example, each of you has probably seen an ad in which a Lasik provider advertises that the procedure is “20/20 or it’s free.” A patient may be able to allege that this advertisement is a guarantee that the procedure will result in 20/20 vision, but no medical provider should guarantee a successful outcome. Each human body reacts differently to treatment, and there is no physician who has not seen an unexpected outcome. Providing patients with unrealistic expectations about their outcomes can lead to lawsuits, even if a physician has obtained a signed informed consent detailing the risks involved.

The situation is even worse when the physician misrepresents his experience. We have defended cases in which physicians have told patients that they had performed a procedure hundreds of times, when that representation was not accurate. One of the greatest assets available to physicians in litigation is their advanced training and professional experience, but that asset becomes worthless if a physician gives the jury a reason to doubt his credibility. Once the jury believes that a physician has misrepresented his experience, he loses the ability to credibly explain his treatment decisions.

5) HMO-directed medicine: It’s no secret that many patients are dissatisfied with their managed care plans. In the abstract, patients understand that rising healthcare costs have caused insurers to limit care, but they are unwilling to view their own situations objectively. They believe that they are entitled to unlimited medical resources. When the HMO tells patients “no,” they have a tendency to transfer their frustrations to their physicians.

The coverage provided by the HMO is a contractual matter between the patient and the insurer. At the end of the day, the treating physician does not control the patient’s eligibility for certain types of care. What the treating physician cannot overlook, however, is that the physician-patient relationship is a personal one that exists independently of the insurance relationship. The standards of professional care require a physician to inform patients of all treatment options—even if the physician believes that the HMO is unlikely to authorize some of them. Ultimately, even if the cost of a treatment option would be prohibitive, a physician must remember that the patient has a right to be informed and to make her own decisions. Physicians should also be receptive to advocating on a patient’s behalf about the reasonableness or necessity of care.

6) Attend to the patient: Few things are harder to explain to a jury than a physician’s failure to personally attend to a patient. The reality is that physicians may receive information over the telephone or through an intermediary’s relay, and they often have to use these means of communication. The risk is that a physician will miss a detail that he would have seen if he had personally examined the patient.

Err on the side of caution. If your differential diagnosis includes a potentially serious condition and your ability to rule out that condition might be influenced by physical findings, arrange to see the patient in person. If the situation does not allow for a face-to-face appointment, instruct the patient to seek medical care through an emergency department or another provider.

Having been there, we can say that there is nothing more difficult for a physician than to have to admit, at deposition, “I wish I had seen the patient personally.”

7) Adequate discharge instructions: Another reality of modern medical practice is that patients often leave the hospital before their course of healing is complete. Patients may leave the hospital shortly after surgery or while still affected by an illness. Even when the treatment in the hospital has been appropriate, we regularly see cases arising from the physician’s discharge instructions. Patients allege that they did not receive enough information to allow them to recognize the onset of potentially serious complications. To prevent confusion, discharge instructions should address all areas of potential concern, including pain, wound care, and signs of infection. The instructions should also include information regarding whom to contact if questions arise and should instruct the patient to return if she experiences a change in condition.

8) Be prepared to deal with misinformation: Technology is wonderful. This morning, we typed the term “diabetes mellitus” into the Google search engine. It returned more than 7.3 million references. Within 30 seconds, we located the “final cure for diabetes,” which was compounded from banana, bitter melon, licorice extract, and cayenne pepper (among other things). While this might cure diabetes, we have our doubts; however, we will leave the debate to more scientific minds.

The problem is that sick people often become desperate people—particularly when fighting diseases like cancer, AIDS, and Alzheimer’s. They are likely to be vulnerable to misinformation and might be inclined to pursue courses of action that could actually harm them. Physicians must realize that they will regularly deal with patients who have unrealistic expectations of the medical system. The only way physicians can combat misinformation is by providing better information. Physicians need to be prepared to educate patients who have unsuccessfully tried to educate themselves. Part of that education can be verbal, but physicians should consider directing patients to reliable resources that they can explore after leaving the hospital.

Patients are also bombarded by advertisements for prescription medications, all of which are designed to persuade them to take an active role in requesting particular prescriptions. The problem is that the physician is responsible for selecting an appropriate medication. Physicians have to be able to explain why an advertised medication may not be the best choice under the circumstances, no matter what the TV commercial said.

9) Take responsibility: Everyone makes mistakes. No physician is perfect, nor is it fair to expect perfection from those who deal with the intricate machinery of the human body. A culture of fear, however, has caused many physicians to believe that they should not admit their mistakes. Our experience shows that recognizing and responding to mistakes is a far better course of action than trying to pretend they didn’t exist.

Taking responsibility doesn’t mean admitting that you were negligent. It does mean acknowledging a complication when it occurs and assisting the patient in minimizing the consequences. Sometimes this will result in transferring the patient to another physician. At other times, the physician may have to pay to correct the mistake. Many medical malpractice insurance carriers now have programs targeted at promptly recognizing and reacting to unexpected outcomes. These insurers realize that the best time to correct a bad situation is within hours or days of its occurrence. Enlist the help of your insurer or hospital risk manager. If patients feel like their physicians are trying to minimize a situation, hoping mistakenly that it will go away, it becomes much more difficult to avoid litigation.

10) Don’t compromise your integrity: Physicians are professionals. Whether it’s fair or not, jurors hold physicians to a higher standard of conduct. They expect more of doctors. They expect doctors to “do the right thing.” Consequently, jurors tend to punish physicians who place their personal interests above their patients’ interests. Federal law already prohibits physicians from engaging in many forms of self-dealing, such as investing in certain businesses or receiving kickbacks for medical care. But there are many lawful forms of conduct that might cause a jury to question why a physician chose a particular course of action.

Recent medical literature demonstrates that pharmaceutical manufacturers direct 90% of an estimated $21 billion annual marketing budget at physicians, including the sponsorship of an estimated 300,000 annual education events. This amounts to approximately $13,000 per physician annually. Because of concerns that even small inducements might have an unwanted effect upon physician independence, the Stanford Medical Center recently announced a new policy prohibiting physicians from accepting free drug samples or even small gifts from pharmaceutical sales representatives. Prominent newspapers have been running stories about the “free lunches” physicians receive.

We’re not suggesting that physicians spurn pharmaceutical sales representatives or that they avoid legal business opportunities. We caution you, however, that smart plaintiffs’ attorneys are sensitive to any indications that a physician has allowed his interests to influence a patient’s treatment. Don’t put yourself in a position where a jury could reasonably question whether or not you had your patient’s best interests in mind.

Unfortunately, even if a physician observes all of these precautions, a patient still might file a lawsuit. If you sense a real potential for litigation, contact your insurance company and provide notice of a potential claim. This will help ensure that your insurance coverage is available if a lawsuit is filed. It also allows the insurance company to retain an attorney to assist you. The next time we write, we’ll provide our top tips for winning a lawsuit once it occurs. TH

Patrick O’Rourke is the managing associate university counsel for the University of Colorado’s litigation office. Kari M. Hershey, JD, practices health law in Colorado.

We’ve defended physicians involved in lawsuits for more than a decade. After representing dozens of physicians, nurses, and other healthcare professionals, we can say one thing for certain: No one likes to get sued.

Good physicians struggle with the litigation process. Even when their care has been absolutely appropriate, many doctors experience great anxiety when they are accused of having negligently injured a patient. Because they have trained so hard to gain their expertise, many of our clients have found that a lawsuit strikes at them personally as well as professionally. At the end of the day, lawsuits cause stress, take physicians away from their personal lives, and often lead to serious financial and professional consequences.

Therefore, one of the questions that we most often receive is, “How can a physician avoid lawsuits?”

Top 10 Ways to Stay Out of Litigation

1) Good documentation: Often, in a lawsuit, plaintiffs’ attorneys will tell the jury the old adage, “If it’s not in the record, it didn’t happen.” What everyone who has practiced medicine knows, however, is that many things don’t make it to the chart. Physicians don’t have the time to recount their conversations with patients verbatim. What we want to see in the chart are the following:

1. A description of the information provided by the patient that factored into your diagnoses or treatment decisions;
2. A description of the physical findings or laboratory results that factored into your diagnoses and treatment decisions;
3. A discussion of why you made a particular decision;
4. A discussion of the course of treatment you selected; and
5. A discussion of your anticipated follow-up.

Of these elements, we most often fail to see a discussion of why you made a particular decision, and this is a crucial piece of the record. As you know, physicians often have a broad range of treatment choices. Including information about why you selected a particular course of treatment—in light of the available data—makes the record more understandable to the jury. A good chart lays out more than just the physician’s actions. A good chart is so complete that another physician could assume care for the patient tomorrow, easily understanding both the course of treatment and why you chose it.

2) Good communication: In his book Blink, Malcolm Gladwell describes something defense lawyers have known for many years: That the quality of the care does not determine whether or not a physician gets sued. There are many instances in which a physician who makes a mistake that causes an injury manages to avoid litigation. There are also many instances in which a physician’s care is appropriate, but the patient sues the physician after a recognized complication. What makes the difference?

More often than not, the determining factor in whether or not a physician is sued is the patient’s perception of whether or not the physician cared about her. In situations in which patients leave the physician’s office believing that the physician listened carefully to their complaints, spent the time to explain the course of treatment, and genuinely cared about them as people, we don’t see as many lawsuits. If a physician explains why a complication occurred—not just that it occurred—and appears empathetic to the patient, she has less of a motivation to sue. Conversely, if the patient feels like the physician sees her as a commodity or didn’t take the time to understand her complaints, the risk of litigation goes up.

One of the most important aspects of good communication is adequate informed consent. Remember, informed consent is a dialogue—not a lecture. It requires physicians to discuss:

1. The substantial risks of the treatment;
2. The benefits of the treatment; and
3. The alternatives to the treatment. Sometimes it’s difficult to determine the substantial risks because a patient and a physician may view the magnitude of a particular risk differently. Our rule of thumb is that any risks associated with serious long-term sequelae, such as permanent impairment, must be discussed, even if the probability of the risk occurring is remote.

3) Good consultation: Many hospitalists do not have long-term relationships with their patients. After a course of hospital treatment, the patient will return to her regular physician. A common breakdown occurs when the consultation between the hospitalist and the regular physician is inadequate.

On the front end, the hospitalist who receives a patient should take the opportunity, if possible, to consult with the regular physician about any ongoing course of treatment. Unfortunately, patients are not always accurate medical historians and may not fully appreciate their conditions or courses of treatment. Consulting with the regular physician helps to eliminate the possibility that an important aspect of the patient’s history or condition is overlooked.

On the back end, when the regular physician resumes care of the patient, he should be able to reinforce the course of hospital care and provide an additional layer of education about why the hospitalist made certain treatment decisions. Of course, the regular physician can serve in this role only if the hospitalist has taken the opportunity to inform the regular physician about the course of care.

4) Accurate representations: We are seeing more cases in which physicians are being sued for alleged misrepresentations to patients.

For example, each of you has probably seen an ad in which a Lasik provider advertises that the procedure is “20/20 or it’s free.” A patient may be able to allege that this advertisement is a guarantee that the procedure will result in 20/20 vision, but no medical provider should guarantee a successful outcome. Each human body reacts differently to treatment, and there is no physician who has not seen an unexpected outcome. Providing patients with unrealistic expectations about their outcomes can lead to lawsuits, even if a physician has obtained a signed informed consent detailing the risks involved.

The situation is even worse when the physician misrepresents his experience. We have defended cases in which physicians have told patients that they had performed a procedure hundreds of times, when that representation was not accurate. One of the greatest assets available to physicians in litigation is their advanced training and professional experience, but that asset becomes worthless if a physician gives the jury a reason to doubt his credibility. Once the jury believes that a physician has misrepresented his experience, he loses the ability to credibly explain his treatment decisions.

5) HMO-directed medicine: It’s no secret that many patients are dissatisfied with their managed care plans. In the abstract, patients understand that rising healthcare costs have caused insurers to limit care, but they are unwilling to view their own situations objectively. They believe that they are entitled to unlimited medical resources. When the HMO tells patients “no,” they have a tendency to transfer their frustrations to their physicians.

The coverage provided by the HMO is a contractual matter between the patient and the insurer. At the end of the day, the treating physician does not control the patient’s eligibility for certain types of care. What the treating physician cannot overlook, however, is that the physician-patient relationship is a personal one that exists independently of the insurance relationship. The standards of professional care require a physician to inform patients of all treatment options—even if the physician believes that the HMO is unlikely to authorize some of them. Ultimately, even if the cost of a treatment option would be prohibitive, a physician must remember that the patient has a right to be informed and to make her own decisions. Physicians should also be receptive to advocating on a patient’s behalf about the reasonableness or necessity of care.

6) Attend to the patient: Few things are harder to explain to a jury than a physician’s failure to personally attend to a patient. The reality is that physicians may receive information over the telephone or through an intermediary’s relay, and they often have to use these means of communication. The risk is that a physician will miss a detail that he would have seen if he had personally examined the patient.

Err on the side of caution. If your differential diagnosis includes a potentially serious condition and your ability to rule out that condition might be influenced by physical findings, arrange to see the patient in person. If the situation does not allow for a face-to-face appointment, instruct the patient to seek medical care through an emergency department or another provider.

Having been there, we can say that there is nothing more difficult for a physician than to have to admit, at deposition, “I wish I had seen the patient personally.”

7) Adequate discharge instructions: Another reality of modern medical practice is that patients often leave the hospital before their course of healing is complete. Patients may leave the hospital shortly after surgery or while still affected by an illness. Even when the treatment in the hospital has been appropriate, we regularly see cases arising from the physician’s discharge instructions. Patients allege that they did not receive enough information to allow them to recognize the onset of potentially serious complications. To prevent confusion, discharge instructions should address all areas of potential concern, including pain, wound care, and signs of infection. The instructions should also include information regarding whom to contact if questions arise and should instruct the patient to return if she experiences a change in condition.

8) Be prepared to deal with misinformation: Technology is wonderful. This morning, we typed the term “diabetes mellitus” into the Google search engine. It returned more than 7.3 million references. Within 30 seconds, we located the “final cure for diabetes,” which was compounded from banana, bitter melon, licorice extract, and cayenne pepper (among other things). While this might cure diabetes, we have our doubts; however, we will leave the debate to more scientific minds.

The problem is that sick people often become desperate people—particularly when fighting diseases like cancer, AIDS, and Alzheimer’s. They are likely to be vulnerable to misinformation and might be inclined to pursue courses of action that could actually harm them. Physicians must realize that they will regularly deal with patients who have unrealistic expectations of the medical system. The only way physicians can combat misinformation is by providing better information. Physicians need to be prepared to educate patients who have unsuccessfully tried to educate themselves. Part of that education can be verbal, but physicians should consider directing patients to reliable resources that they can explore after leaving the hospital.

Patients are also bombarded by advertisements for prescription medications, all of which are designed to persuade them to take an active role in requesting particular prescriptions. The problem is that the physician is responsible for selecting an appropriate medication. Physicians have to be able to explain why an advertised medication may not be the best choice under the circumstances, no matter what the TV commercial said.

9) Take responsibility: Everyone makes mistakes. No physician is perfect, nor is it fair to expect perfection from those who deal with the intricate machinery of the human body. A culture of fear, however, has caused many physicians to believe that they should not admit their mistakes. Our experience shows that recognizing and responding to mistakes is a far better course of action than trying to pretend they didn’t exist.

Taking responsibility doesn’t mean admitting that you were negligent. It does mean acknowledging a complication when it occurs and assisting the patient in minimizing the consequences. Sometimes this will result in transferring the patient to another physician. At other times, the physician may have to pay to correct the mistake. Many medical malpractice insurance carriers now have programs targeted at promptly recognizing and reacting to unexpected outcomes. These insurers realize that the best time to correct a bad situation is within hours or days of its occurrence. Enlist the help of your insurer or hospital risk manager. If patients feel like their physicians are trying to minimize a situation, hoping mistakenly that it will go away, it becomes much more difficult to avoid litigation.

10) Don’t compromise your integrity: Physicians are professionals. Whether it’s fair or not, jurors hold physicians to a higher standard of conduct. They expect more of doctors. They expect doctors to “do the right thing.” Consequently, jurors tend to punish physicians who place their personal interests above their patients’ interests. Federal law already prohibits physicians from engaging in many forms of self-dealing, such as investing in certain businesses or receiving kickbacks for medical care. But there are many lawful forms of conduct that might cause a jury to question why a physician chose a particular course of action.

Recent medical literature demonstrates that pharmaceutical manufacturers direct 90% of an estimated $21 billion annual marketing budget at physicians, including the sponsorship of an estimated 300,000 annual education events. This amounts to approximately $13,000 per physician annually. Because of concerns that even small inducements might have an unwanted effect upon physician independence, the Stanford Medical Center recently announced a new policy prohibiting physicians from accepting free drug samples or even small gifts from pharmaceutical sales representatives. Prominent newspapers have been running stories about the “free lunches” physicians receive.

We’re not suggesting that physicians spurn pharmaceutical sales representatives or that they avoid legal business opportunities. We caution you, however, that smart plaintiffs’ attorneys are sensitive to any indications that a physician has allowed his interests to influence a patient’s treatment. Don’t put yourself in a position where a jury could reasonably question whether or not you had your patient’s best interests in mind.

Unfortunately, even if a physician observes all of these precautions, a patient still might file a lawsuit. If you sense a real potential for litigation, contact your insurance company and provide notice of a potential claim. This will help ensure that your insurance coverage is available if a lawsuit is filed. It also allows the insurance company to retain an attorney to assist you. The next time we write, we’ll provide our top tips for winning a lawsuit once it occurs. TH

Patrick O’Rourke is the managing associate university counsel for the University of Colorado’s litigation office. Kari M. Hershey, JD, practices health law in Colorado.

We’ve defended physicians involved in lawsuits for more than a decade. After representing dozens of physicians, nurses, and other healthcare professionals, we can say one thing for certain: No one likes to get sued.

Good physicians struggle with the litigation process. Even when their care has been absolutely appropriate, many doctors experience great anxiety when they are accused of having negligently injured a patient. Because they have trained so hard to gain their expertise, many of our clients have found that a lawsuit strikes at them personally as well as professionally. At the end of the day, lawsuits cause stress, take physicians away from their personal lives, and often lead to serious financial and professional consequences.

Therefore, one of the questions that we most often receive is, “How can a physician avoid lawsuits?”

Top 10 Ways to Stay Out of Litigation

1) Good documentation: Often, in a lawsuit, plaintiffs’ attorneys will tell the jury the old adage, “If it’s not in the record, it didn’t happen.” What everyone who has practiced medicine knows, however, is that many things don’t make it to the chart. Physicians don’t have the time to recount their conversations with patients verbatim. What we want to see in the chart are the following:

1. A description of the information provided by the patient that factored into your diagnoses or treatment decisions;
2. A description of the physical findings or laboratory results that factored into your diagnoses and treatment decisions;
3. A discussion of why you made a particular decision;
4. A discussion of the course of treatment you selected; and
5. A discussion of your anticipated follow-up.

Of these elements, we most often fail to see a discussion of why you made a particular decision, and this is a crucial piece of the record. As you know, physicians often have a broad range of treatment choices. Including information about why you selected a particular course of treatment—in light of the available data—makes the record more understandable to the jury. A good chart lays out more than just the physician’s actions. A good chart is so complete that another physician could assume care for the patient tomorrow, easily understanding both the course of treatment and why you chose it.

2) Good communication: In his book Blink, Malcolm Gladwell describes something defense lawyers have known for many years: That the quality of the care does not determine whether or not a physician gets sued. There are many instances in which a physician who makes a mistake that causes an injury manages to avoid litigation. There are also many instances in which a physician’s care is appropriate, but the patient sues the physician after a recognized complication. What makes the difference?

More often than not, the determining factor in whether or not a physician is sued is the patient’s perception of whether or not the physician cared about her. In situations in which patients leave the physician’s office believing that the physician listened carefully to their complaints, spent the time to explain the course of treatment, and genuinely cared about them as people, we don’t see as many lawsuits. If a physician explains why a complication occurred—not just that it occurred—and appears empathetic to the patient, she has less of a motivation to sue. Conversely, if the patient feels like the physician sees her as a commodity or didn’t take the time to understand her complaints, the risk of litigation goes up.

One of the most important aspects of good communication is adequate informed consent. Remember, informed consent is a dialogue—not a lecture. It requires physicians to discuss:

1. The substantial risks of the treatment;
2. The benefits of the treatment; and
3. The alternatives to the treatment. Sometimes it’s difficult to determine the substantial risks because a patient and a physician may view the magnitude of a particular risk differently. Our rule of thumb is that any risks associated with serious long-term sequelae, such as permanent impairment, must be discussed, even if the probability of the risk occurring is remote.

3) Good consultation: Many hospitalists do not have long-term relationships with their patients. After a course of hospital treatment, the patient will return to her regular physician. A common breakdown occurs when the consultation between the hospitalist and the regular physician is inadequate.

On the front end, the hospitalist who receives a patient should take the opportunity, if possible, to consult with the regular physician about any ongoing course of treatment. Unfortunately, patients are not always accurate medical historians and may not fully appreciate their conditions or courses of treatment. Consulting with the regular physician helps to eliminate the possibility that an important aspect of the patient’s history or condition is overlooked.

On the back end, when the regular physician resumes care of the patient, he should be able to reinforce the course of hospital care and provide an additional layer of education about why the hospitalist made certain treatment decisions. Of course, the regular physician can serve in this role only if the hospitalist has taken the opportunity to inform the regular physician about the course of care.

4) Accurate representations: We are seeing more cases in which physicians are being sued for alleged misrepresentations to patients.

For example, each of you has probably seen an ad in which a Lasik provider advertises that the procedure is “20/20 or it’s free.” A patient may be able to allege that this advertisement is a guarantee that the procedure will result in 20/20 vision, but no medical provider should guarantee a successful outcome. Each human body reacts differently to treatment, and there is no physician who has not seen an unexpected outcome. Providing patients with unrealistic expectations about their outcomes can lead to lawsuits, even if a physician has obtained a signed informed consent detailing the risks involved.

The situation is even worse when the physician misrepresents his experience. We have defended cases in which physicians have told patients that they had performed a procedure hundreds of times, when that representation was not accurate. One of the greatest assets available to physicians in litigation is their advanced training and professional experience, but that asset becomes worthless if a physician gives the jury a reason to doubt his credibility. Once the jury believes that a physician has misrepresented his experience, he loses the ability to credibly explain his treatment decisions.

5) HMO-directed medicine: It’s no secret that many patients are dissatisfied with their managed care plans. In the abstract, patients understand that rising healthcare costs have caused insurers to limit care, but they are unwilling to view their own situations objectively. They believe that they are entitled to unlimited medical resources. When the HMO tells patients “no,” they have a tendency to transfer their frustrations to their physicians.

The coverage provided by the HMO is a contractual matter between the patient and the insurer. At the end of the day, the treating physician does not control the patient’s eligibility for certain types of care. What the treating physician cannot overlook, however, is that the physician-patient relationship is a personal one that exists independently of the insurance relationship. The standards of professional care require a physician to inform patients of all treatment options—even if the physician believes that the HMO is unlikely to authorize some of them. Ultimately, even if the cost of a treatment option would be prohibitive, a physician must remember that the patient has a right to be informed and to make her own decisions. Physicians should also be receptive to advocating on a patient’s behalf about the reasonableness or necessity of care.

6) Attend to the patient: Few things are harder to explain to a jury than a physician’s failure to personally attend to a patient. The reality is that physicians may receive information over the telephone or through an intermediary’s relay, and they often have to use these means of communication. The risk is that a physician will miss a detail that he would have seen if he had personally examined the patient.

Err on the side of caution. If your differential diagnosis includes a potentially serious condition and your ability to rule out that condition might be influenced by physical findings, arrange to see the patient in person. If the situation does not allow for a face-to-face appointment, instruct the patient to seek medical care through an emergency department or another provider.

Having been there, we can say that there is nothing more difficult for a physician than to have to admit, at deposition, “I wish I had seen the patient personally.”

7) Adequate discharge instructions: Another reality of modern medical practice is that patients often leave the hospital before their course of healing is complete. Patients may leave the hospital shortly after surgery or while still affected by an illness. Even when the treatment in the hospital has been appropriate, we regularly see cases arising from the physician’s discharge instructions. Patients allege that they did not receive enough information to allow them to recognize the onset of potentially serious complications. To prevent confusion, discharge instructions should address all areas of potential concern, including pain, wound care, and signs of infection. The instructions should also include information regarding whom to contact if questions arise and should instruct the patient to return if she experiences a change in condition.

8) Be prepared to deal with misinformation: Technology is wonderful. This morning, we typed the term “diabetes mellitus” into the Google search engine. It returned more than 7.3 million references. Within 30 seconds, we located the “final cure for diabetes,” which was compounded from banana, bitter melon, licorice extract, and cayenne pepper (among other things). While this might cure diabetes, we have our doubts; however, we will leave the debate to more scientific minds.

The problem is that sick people often become desperate people—particularly when fighting diseases like cancer, AIDS, and Alzheimer’s. They are likely to be vulnerable to misinformation and might be inclined to pursue courses of action that could actually harm them. Physicians must realize that they will regularly deal with patients who have unrealistic expectations of the medical system. The only way physicians can combat misinformation is by providing better information. Physicians need to be prepared to educate patients who have unsuccessfully tried to educate themselves. Part of that education can be verbal, but physicians should consider directing patients to reliable resources that they can explore after leaving the hospital.

Patients are also bombarded by advertisements for prescription medications, all of which are designed to persuade them to take an active role in requesting particular prescriptions. The problem is that the physician is responsible for selecting an appropriate medication. Physicians have to be able to explain why an advertised medication may not be the best choice under the circumstances, no matter what the TV commercial said.

9) Take responsibility: Everyone makes mistakes. No physician is perfect, nor is it fair to expect perfection from those who deal with the intricate machinery of the human body. A culture of fear, however, has caused many physicians to believe that they should not admit their mistakes. Our experience shows that recognizing and responding to mistakes is a far better course of action than trying to pretend they didn’t exist.

Taking responsibility doesn’t mean admitting that you were negligent. It does mean acknowledging a complication when it occurs and assisting the patient in minimizing the consequences. Sometimes this will result in transferring the patient to another physician. At other times, the physician may have to pay to correct the mistake. Many medical malpractice insurance carriers now have programs targeted at promptly recognizing and reacting to unexpected outcomes. These insurers realize that the best time to correct a bad situation is within hours or days of its occurrence. Enlist the help of your insurer or hospital risk manager. If patients feel like their physicians are trying to minimize a situation, hoping mistakenly that it will go away, it becomes much more difficult to avoid litigation.

10) Don’t compromise your integrity: Physicians are professionals. Whether it’s fair or not, jurors hold physicians to a higher standard of conduct. They expect more of doctors. They expect doctors to “do the right thing.” Consequently, jurors tend to punish physicians who place their personal interests above their patients’ interests. Federal law already prohibits physicians from engaging in many forms of self-dealing, such as investing in certain businesses or receiving kickbacks for medical care. But there are many lawful forms of conduct that might cause a jury to question why a physician chose a particular course of action.

Recent medical literature demonstrates that pharmaceutical manufacturers direct 90% of an estimated $21 billion annual marketing budget at physicians, including the sponsorship of an estimated 300,000 annual education events. This amounts to approximately $13,000 per physician annually. Because of concerns that even small inducements might have an unwanted effect upon physician independence, the Stanford Medical Center recently announced a new policy prohibiting physicians from accepting free drug samples or even small gifts from pharmaceutical sales representatives. Prominent newspapers have been running stories about the “free lunches” physicians receive.

We’re not suggesting that physicians spurn pharmaceutical sales representatives or that they avoid legal business opportunities. We caution you, however, that smart plaintiffs’ attorneys are sensitive to any indications that a physician has allowed his interests to influence a patient’s treatment. Don’t put yourself in a position where a jury could reasonably question whether or not you had your patient’s best interests in mind.

Unfortunately, even if a physician observes all of these precautions, a patient still might file a lawsuit. If you sense a real potential for litigation, contact your insurance company and provide notice of a potential claim. This will help ensure that your insurance coverage is available if a lawsuit is filed. It also allows the insurance company to retain an attorney to assist you. The next time we write, we’ll provide our top tips for winning a lawsuit once it occurs. TH

Patrick O’Rourke is the managing associate university counsel for the University of Colorado’s litigation office. Kari M. Hershey, JD, practices health law in Colorado.