Malpractice and Liability

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	Malpractice and Liability

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Malpractice and Liability

Malpractice Insurance and Liability Insurance Policy

Every working medical assistant and staff member in the medical office who is providing direct and indirect patient cares should be encouraged to make sure they have adequate malpractice and professional liability insurance coverage, because each one is responsible for his/her own negligent acts, since malpractice is defined as "the negligent act of a person with specialized training and education."

Phony Malpractice Insurance Scam Warning

However, it is not enough to accept insurance under the employer’s policy as a rider and assume this is adequate protection in case of a lawsuit. Medical assistants should insist on their own personal policy, either through their employer or on their own!

Expectation Not to Cause Harm!

Medical malpractice is a very serious offense because it constitutes a breach of trust in the patient-doctor relationship and it causes severe consequences to the victim's life. Doctors, nurses, paramedics, allied health technicians and medical assistants alike are expected to do everything they can to promote patient health and healing and not to cause harm!

Analyze Your Employer’s Policy!

How much you pay for your insurance premium depends on your responsibilities, the location of your practice setting and the limits of liability you choose. If your employer insists that you are to be covered under their policy (rider) and you can't afford to purchase your own personal policy, ask the employer for a copy of the certificate of insurance for your analysis.

Here is a checklist of items to use when analyzing your employer’s policy:

1. Are you listed by name on your employer’s policy?

2. Are legal costs included in the limits of liability, or will they be paid in addition to policy limits?

3. If a malpractice claim is filed against you, will this professional liability policy pay legal fees and court costs in addition to your policy limit, even if you are not liable for the charges brought against you?

4. If you decide to change employers and are covered under a claims-made policy, will your former employer be responsible for paying the cost of the tail coverage?

5. Is this policy available in all 50 states?

If you answered NO to any of these questions, do your research and consider purchasing your own individual policy through one of the many malpractice and professional liability programs available! Certified medical assistants can often find such policies offered through their certification organization.

Having Your Own Professional Liability Insurance Policy

Regardless whether a medical assistant is covered under the employer’s policy, he or she may still be liable for his or her own negligence and may be responsible for all or part of a plaintiff’s award or settlement. In some cases the employee (the medical assistant) may have to compensate the employer (the doctor) who has paid damages to the claimant.

Assume and Pay?

A medical assistant can either assume that liability, that is paying damages awarded to the claimant in case of a lawsuit him or herself, or buy an insurance policy to transfer that risk. Insurance companies accept the transfer of risk in exchange for the payment of premiums.

Get Your Own Policy!

Therefore, whether as a student on externship, or as a professional working under a physician, medical assistants should get their own malpractice and professional liability insurance policy! It is really worth the cost and effort; and actually, considering the consequences of a successful lawsuit by an injured patient, malpractice insurance really doesn't cost that much at all!

Example Case

Here is an interesting case about a cytotechnologist employed at a pathology lab in a larger Knoxville, Tennessee hospital, who misread a PAP smear:

In the Estate of Shirley J. Dannenhold v Knoxville Pathology Group PC, 1998 WL 79236, a medical malpractice action was sought after the misreading of a 1993 Pap smear prevented the early discovery of cervical cancer, which then allegedly led to the terminal stages of this cancer. In this case, Shirley J. Dannenhold sued Knoxville Pathology Group, Carter Miller, Jr., M.D., and Bruce Bellomy, M.D. for inaccurately issuing a negative report that should have been positive. (Court: TCA, Attorneys: Danna Keene Holt, Edward G. White, II, and Amy V. Hollars of Knoxville).

The specimen slide involving the patient was submitted by her gynecologist, and was read by the cytotechnologist, who issued a negative reading. However, a year later the patient consulted a different physician and her Pap smear sample, obtained as a routine part of the annual gynecological examination, was submitted to a different laboratory. When the results came back, a cancer diagnosis was reported and unfortunately, the cancer was invasive at that time. The trial court sustained a motion for summary judgment for the defendants.

The appeal was filed and the plaintiff raised the issues of whether the cytotechnologist who misread the Pap smear slide was the agent and/or borrowed servant of the pathologist who issued the negative report, and whether the cytotechnologist was engaged in the business of, and under the supervision of the pathologist at the time the slide was read. The Court of Appeals found a basis for this issue, and that the theory of vicarious liability may apply.

Read: DANNENHOLD v. PATHOLOGY GROUP, 03A01-9710-CV-00443 (Tenn.App. 11-11-1998)

Volunteer Work!

Should you ever decide you want to volunteer, or work at a part-time position, or do private healthcare duty, in addition to your full-time position, an individual policy covers you while performing these jobs in both positions and under the various circumstances. If you accept a position and then decide you want to take a position somewhere else, your individual coverage follows you to your new position, even if your previous employer paid the premiums for your coverage. However, realize that your previous employer may request reimbursement!

There even is a way to eliminate gaps in coverage by requesting prior acts coverage. This gives the insured retroactive coverage to cover those events that may have already occurred but have not yet been reported, in other words, it provides coverage for all acts that occurred before the policy was issued!

Remember This:

Protect yourself and strive to function within the parameters of your scope of practice and all applicable laws; and document, document, document! Complete and careful record keeping is critical to protect yourself, the employer and the patient.

Each aspect of the medical encounter—-personal and family histories, allergies to medications and other substances, medications administered and prescribed, physical exam findings, diagnostic imaging and lab test results, discussions that were held with patients, including specific advice given and procedures that were performed during the course of the visit should go into the patient's medical record along with the date and initials of the person who performed the services, followed by the signature or initials of the ordering physician or supervising nurse.

*Although many factors can lead to a malpractice claim, in the past the major focus by malpractice insurance carriers has been on improving communication regarding services between provider and patient as well as adequately documenting these services in the patient's medical record!