Malpractice  

Professional misconduct or demonstration of an unreasonable lack of skill that results in injury, loss, or damage to the  patient is considered malpractice.  Malpractice claims are classified according to the manner  in which the wrongful act was committed. The classifications include: 

• Malfeasance—Performing a wrongful or illegal act
• Misfeasance—Performing a lawful act but not in the proper way
• Nonfeasance—Being negligent or ignoring performance of a necessary lawful act

Table 3-2 lists the types of damages that may be awarded  to patients in medical malpractice suits. 

Not every mistake or error, however, is considered malpractice. When a treatment or diagnosis does not turn out  well, the physician is not necessarily liable. The physician  would not be liable for a poor outcome if it can be shown  that he treated the patient according to the standard of care  and scope of practice for a physician and that he is not guilty  of malfeasance, misfeasance, or nonfeasance. The physicianemployer and all staff must each act within the standard of  care appropriate for their particular practice of medicine. All  health care providers are held to this same standard. 

Malpractice Insurance 

In modern times, all physicians are expected to carry malpractice insurance. The cost of malpractice insurance varies  based on the following considerations: 

• How much coverage is the physician requesting? A physician who wants a $5,000,000 coverage policy pays more than a physician who purchases a $2,500,000  policy.
• Where is the physician practicing medicine? The cost of malpractice insurance is greater in certain states or in highly populated metropolitan areas. 
• What type of medicine is practiced by the physician? A general practitioner pays less for an insurance policy than an obstetrician (a physician who specializes in  treating pregnant women and delivering babies)  because obstetrics is considered a high-risk specialty. 

 

Physicians can decide which type of insurance they would  like to carry. The type of insurance that they choose also  impacts the cost. The types of coverage include: 

• Occurrence coverage—This covers the physician for any claim for an incident that occurred while the insurance policy was in effect, even if the physician has  different coverage when the claim is filed. 
• Claims-made coverage—This covers the physician only if the company that insured the physician at the time of the incident is the same company that insures  the physician when the claim is made. If a claim is  made for an alleged incident that took place before the  physician’s claims-made coverage, the claim would not  be covered. Because of this risk, a physician may purchase additional insurance termed “tail-coverage.” 
• Tail-coverage—If a physician cancels a claims-made policy, she may choose to purchase tail-coverage, which will cover any claims that allege actions occurred during the time the physician was covered under claimsmade coverage. 
• Prior-acts coverage—This covers any claims made before the time that the physician had a claims-made policy.  To be sure that physicians are covered for occurrences before and after the insured years, complete coverage from  beginning to end of career is also available. In most cases,  employers carry insurance to cover acts of their employees while performing their duties. This is termed general liability  coverage. Employees should request to see their employer’s  certificate of insurance to determine policy coverage. 

To cover any negligence on the part of their staff, including medical assistants, some physicians carry a rider, an additional clause to their professional liability or malpractice  policy. Once again, it is important for the medical assistant  to determine the type of coverage the physician-employer  carries and to clarify coverage. Medical assistants who are  not covered by the employer’s malpractice policy may  choose to purchase professional liability coverage from an  insurance carrier who specializes in this type of coverage. By  purchasing liability coverage, the medical assistant minimizes personal liability and risk. Ultimately, the employer  is responsible for the actions of the employee (respondeat  superior). However, it is important to be sure you have insurance coverage because, as noted earlier, both the employer  and the employee may be sued for the action of the employee. 

 

Res Ipsa Loquitur 

The doctrine of res ipsa loquitur, which translated from Latin  means “the thing speaks for itself,” applies to the law of negligence. This doctrine defines a breach (neglect) of duty that is  so obvious that it does not need further explanation, or “it  speaks for itself.” For instance, leaving a sponge in the patient’s  abdomen during abdominal surgery or operating on the wrong  body part are examples of res ipsa loquitur. None of these examples would have occurred without the negligence of someone  involved in the procedure. It is difficult, if not impossible, to  defend against a suit in which res ipsa loquitur applies. 

 

Statute of Limitations 

A statute of limitations defines the period of time during  which a patient may file a lawsuit. The court will not hear a  case that is filed after the time limit has run out. Statutes of  limitations vary from state to state; the time periods within which a suit may be brought vary from one to six years in  different states. 

The time period within which a suit may be brought  does not always start when the treatment is administered. It  may begin when the problem is discovered, which may be  some time after the actual treatment. This is known as the  rule of discovery. 

Here is a true example. A physician accidentally left a  surgical sponge in a patient’s abdomen during an operation.  After 16 years of abdominal discomfort, the patient required  more surgery, but the physician who had performed the  original operation had died. Another surgeon performed  the second surgery, found the sponge, and removed it. The  patient then sued the estate of the original surgeon for malpractice and won because the allowable period of time for a  suit under the statute of limitations, which was two years in  that state, started when the sponge was discovered, not when  the original medical error was committed. 

Occasionally, a state’s statute of limitations is prevented  from coming into play. This occurs when the injury is to a  minor child. Generally, the court will appoint a guardian ad  litem, an adult who will act in court on behalf of the child.  However, the child does not have to sue through a guardian  ad litem as a minor but may wait until reaching adulthood.  In such a case, an obstetrician and the medical assistants can  be sued 21 years and 9 months (plus the statute of limitations period in that state) after a birth injury occurred. 

 

Good Samaritan Acts 

Good Samaritan acts are state laws that help to protect a  health care professional from liability while that professional  is giving emergency care to an accident victim. Such laws are  in effect in all states to encourage physicians and other health  care professionals to offer cardiopulmonary resuscitation  (CPR) and first aid, as needed, at the scene of an accident.  Persons responding in an emergency situation are only  required to act within the limits of their skill and training.  A medical assistant would be neither expected, nor advised,  to perform emergency treatment that is within the area practiced by physicians and nurses. 

Providing care at the scene of an accident is generally voluntary. No one is required to provide aid in the event of an  emergency, except in the state of Vermont, where “a person  who knows another is exposed to grave physical harm” is  required to give reasonable assistance if it is safe to do so. 

Defamation of Character 

Defamation of character is a scandalous statement about  someone that can injure the person’s reputation. Defamation  can occur even when the statement is true if malice is proven, meaning if it can be shown that the true statement was made  with the intention of causing injury to someone. 

As a medical assistant, you will have access to privileged  information about patients that may seem harmless, but in reality, the information could be very damaging to their reputations. For instance, a patient who undergoes a test for an  infectious disease, such as hepatitis or AIDS, may not wish an  employer to know the test took place, even if the test result is  negative. If you call the patient’s place of employment and leave  a message regarding a test result of this nature, the action could  be considered a breach of confidentiality and defamation. 

The simple act of a physician seeing a patient for an  appointment must also be kept confidential. The medical  assistant should not fax such information or leave messages  of this kind on answering machines unless specifically  instructed to do so in writing by the patient. Specific instructions, including what types of messages are allowed, should  be documented in the patient’s medical record. 

To protect yourself and avoid involvement in a lawsuit,  you must practice your skills with care, be concerned about  maintaining good public relations with patients and other  staff members, and understand the law. Always ask your  supervisor for guidance on the appropriate action to take.