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| Miscommunications: Recognizing Liability-prone Encounters—Beware of Them |
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by Marcos A. Vargas, MSHA, PA-C - January 31, 2011
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You never saw it coming…as a matter of fact the thought of being sued never even crossed your mind. Now your world comes crumbling down after being subpoenaed by the attorney of one of your newest patients in the practice. After several minutes later your initial state of shock begins to dissipate slowly, while an avalanche of thoughts and emotions assault you inner being ferociously. You begin feeling nauseous, weak to your knees, and angry, betrayed, confused all while trying to find and oasis in the midst of this bewildering state of mind. Like a Russian roulette your mind begins to slow down after several minutes which it seemed like an eternity after reading the subpoena heading.
After your pulse returns to normal & after sitting down and having survived the barrage of racy thoughts and conflicting emotions your brief acute state of catatonia is lifted from your shoulders. Now you begin backtracking.
As much as you try to recall any specific incidents with this new patient, your mind seems to go blank. Then slowly you begin to recall on one of your very first encounters, the picture becomes clearer as you have that flashback in time and remember him asking all those questions (more like your professional opinion) about the “lack” of care and “indifference” to his medical ailment by another recent past medical provider.
You begin recalling this day & encounter were all he wanted was “an honest opinion” of his medical mismanagement. “Shouldn’t my doctor have prescribed drug A, drug B or at least drug C”? “Shouldn’t my doctor have ordered a CAT Scan or @ least gotten some X-rays?” “Shouldn’t my doctor have done this…done that…etc?”
It quickly dawns on you that for a split second (back then) you tried to remain noncritical of your peer in your answers. Unfortunately, you were set up by a coning litigious patient. One who recognizes that many clinicians like to explain and educate their patients even when the care has been questionable.
Unknowingly, your responses were all he needed to use as an indictment & cast aspersion on this particular past provider all because indirectly you played “clinical judge”. And with great sadness you come to realize what a costly mistake that was even though your short-sightedness and unguarded talk that day was meant to be helpful.
You were clarifying things, but inadvertently your subjective comments served as the basis of this unforeseen high-jacking of your views, but more so your comments to use against another peer.
To protect yourself legally you must be mindful of these all too common clinical scenarios. Here’s what you must do if you are to avoid potential lawsuits down the line:
1. Be reserved: Watch what you say…how you say it...when you say it. While it is always best to have an open, communicative patient-provider relationship, this is one of those instances that is best not to be to forthcoming with your personal critical remarks about someone else’s past medical care provided even though you want to be helpful. Or you feel it’s your duty to rid the world of mediocre medical care-givers, because otherwise you may be inviting and/or facing a potential defamation-of-character lawsuit.
2. Avoid Promises: This is another scenario that could potentially be costly, particularly when a patient asks you about your technical proficiency in a specific procedure. Instinctively we affirm our results with assurances even though we know darn well that medical procedural results or diagnostic outcomes are not always guaranteed.
So why would you give your patients unconditional assurances, particularly when some patient’s expectations may be unreasonable to begin with? Inadvertently you may be heightening a very unrealistic expectation even though you’re aiming for your patient’s confidence and trust. Remember, it is not your clinical confidence or skill level in question, it is the unequivocal assurance given to a patient whose medical outcome was less than what they felt it was a “guaranteed promise”. Those very same assurances could turn up as evidence against you in your own breach of contract lawsuit.
Be forewarned; be especially cautious when faced with these queries or volatile situations in your career.
Final Point: unguarded communication can be another area of potential legal nightmarish consequences even for the best intentioned provider when relating, educating or explaining the patient their care-giving options or treatments.
 Marcos A. Vargas, MSHA, PA-C is a Boston born and Puerto Rican bred individual who has an extensive healthcare industry background, both industry-related as a Pharmacy Technician during his undergraduate years, and industry-specific as a dually N.C.C.P.A. certified Physician Assistant in Surgery and Primary care after graduating from the University of Alabama—Birmingham Physician/Surgeon’s Assistant Program. He has held clinical positions in Cardiothoracic, General Surgery, & Emergency Medicine over the past twenty years. He holds a Master’s in Science Administration from Central Michigan University and a Healthcare Risk Management graduate certificate. He has been retained and consulted regularly by both plaintiff & defense law firms over the past 14 years. During this time, he has served as both a consulting medical reviewer and a PA expert. Marcos has lectured on Clinical Risk Management (PA) issues throughout the years to various Michigan-based PA Training Programs. He has done the same for lay audiences, covering a wide range of “Wellness” topics. He has been a supporter and associate member of numerous professional clinical and non-clinical organizations. Currently he is employed as an orthopedic PA at HMC.
The viewpoint expressed in this article is the opinion of the author and is not necessarily the viewpoint of the owners or employees at Healthcare Staffing Innovations, LLC.
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