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"Chain of Command" Becomes a New Focus for Plaintiff's Bar
As healthcare reform gathers steam, the stage is set for both government and private health plans to shift more financial risk to providers and consumers. The economics of "global payments" will require greater cost controls on the part of physicians, hospitals and Accountable Care Organizations(ACOs). Consequently, most physicians will be practicing in a world with not so subtle incentives to avoid using "excess" lab, radiology and other types of clinical testing. At the same time, Massachusetts consumers are being shifted into health plans with increasing co-pays and deductibles. Past experience has shown that when patients are confronted with higher co-pays and deductibles, they wait longer and become sicker before seeking care.
Yet physicians will continue to be on the firing line when it comes to medical malpractice claims. In fact, claim severity (the amount paid per claim) is steadily increasing. Last year, indemnity claim costs increased to $640,000 per claim for a major Massachusetts malpractice insurer, up from $605,000 the previous year.
A growing area of focus for the plaintiff's bar is so-called "Chain of Command" litigation. In a malpractice case, Chain of Command involves a much broader number of people than just the physician. It acknowledges that multiple clinical staff may be interacting with a patient. It imposes a duty on each person to pass along important patient information up the chain to the physician in charge and to document interactions in the patient record. In either a hospital or practice setting, this can include a hierarchy of nurses, physician assistants and other allied health professionals. In a malpractice case, these individuals may also be named in lawsuits and asked to testify about their interaction with the patient and those further up the Chain of Command. And as nurses begin to carry their own separate malpractice limits, this creates another pocket for the plaintiffs to go after.
Chain of Command claims place a duty on the physician in charge to act when given patient information by a nurse or PA if it indicates the patient may be at risk. The physician must document the conversation, indicating his or her response in the patient record. Conversely, if a nurse or other clinical staff person communicates a concern regarding a specific patient and documents it in the record, the physician's response or lack thereof can become a compelling factor in a future malpractice case. Can this potentially pit nurses and PAs against physicians in certain situations? Unfortunately, the answer is yes. For these reasons, more healthcare institutions are establishing Chain of Command communication guidelines to clarify how and when to convey patient health changes up and down the chain. If everyone understands how and when communication should take place among healthcare professionals, problems can be avoided.
According to noted malpractice defense attorney Dennis Anti, Esq., the benefits of a good Chain of Command in the healthcare setting include:
• Reducing confusion when dealing with possible difficult or problematic patient care
• Outlining procedures by which employees should present concerns on patient issues
• Providing a communication hierarchy individualized to a specific hospital or practice
• Reducing liability for physicians, nurses, physician assistants, residents, etc.
According to Attorney Anti, Nurses and PAs are already undergoing Chain of Command training in many healthcare institutions. Specifically, they are instructed to ask questions and document when orders are inadequate, inconsistent or unclear (medication name, dose, frequency) or when there are changes in a patient postoperatively (i.e. symptoms of acute abdominal pain, unusual bleeding or abnormal labs.)
Generally, training for nurses and PAs stresses the following when orders are unclear:
• Obtain clarification
• If prescriber cannot be reached, notify immediate supervisor
• Supervisor will contact attending physician
• If no resolution, nursing supervisor will contact Chief Medical Officer
• In most instances, nurses and nurse supervisors will document their activities in the patient record
It remains to be seen whether future changes in the expanding role of nurses and PAs will affect the Chain of Command. However, as of today the "buck" in the Chain of Command stops with the physician. Physicians will need to be vigilant about documenting their responses in the patient record to questions/concerns coming from those further down the chain.
Ultimately, the convergence of healthcare reform, greater costs for consumers and more creative ways for the plaintiff's bar to seek malpractice redress for patients will only make it more challenging for physicians and other healthcare professionals.
— Jack King
Special thanks to Dennis Anti, Partner, Morris Mahoney, who contributed his time and thoughts in putting together this article.
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