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The Less Said the Better

Risk Management and Medical Liability

A Manual for Indian Health Service and Tribal Health Care Professionals
(Second Edition)

Section Fourteen: The Less Said, the Better

Health care practitioners of all disciplines have been taught to relay to their patients abundant information about underlying disease processes, medications, prognosis, and general health promotion. The axiom is the better informed the patient, the better health choices he or she can make. When it comes to medical malpractice tort claims however, the opposite is true; the less we say in public about an alleged malpractice incident or its accompanying legal proceedings, the better. Disclosing certain protected information may raise legal problems or lead to the discovery of damaging information by the claimant’s attorney. The following bullets provide useful tips for practitioners with respect to potential or actual medical malpractice tort claims.

If an Adverse Event Occurs:

  • It is prudent to tell patients about any errors in medical management or unanticipated clinical outcomes when they occur, but not to admit fault or liability in any way, either verbally or in the chart.1
  • Prior to communicating these situations with the patient, the chief executive officer, clinical director, and risk management should be alerted. A planning meeting with these individuals should be held before discussions with the patient occur; the IHS legal counsel may need to be included under certain circumstances. However, there should not be an undue delay in communicating the event to the patient.
  • Do not try to point fingers at other providers for medical mishaps. Keep all medical records factual and to the point.
  • If you witness potentially negligent acts or incompetence by fellow practitioners, do not place this information in the chart or discuss it in earshot of patients. Bring it to the attention of the medical director. The exception, of course, would be to intervene if the life or limb of a patient is in immediate jeopardy.
  • Never encourage a patient to file a tort claim or take legal action. If a patient has concerns about the care they have received, refer them to the facility’s patient advocate, risk manager, or the medical director.
Once a Tort Claim is Filed:

  • If the allegation of negligence involves you as a practitioner, you may be more comfortable having a colleague take over the care of your patient; often this may be the most practical choice. Document the change of providers in the chart, but do not put anything about the tort claim in the medical record. If you are unclear of what your role should be in caring for the patient, discuss the situation with your medical director or call the IHS Headquarters Risk Manager.
  • Do not discuss a tort claim with the involved patient or their relatives; if the patient asks you questions about their case, politely decline to say anything.
  • If you happen to get a call from a claimant’s attorney, do not discuss the case or say anything. Be careful because occasionally an unscrupulous lawyer may try to trick you into divulging information. Refer the caller to the Government’s legal counsel or simply say you are not permitted to say anything about the situation and hang up.
  • You can confidently discuss the case with an attorney from the Office of General Counsel or an Assistant U.S. Attorney (AUSA) from the Department of Justice, as these individuals are representing “our side” and may need additional information from you to help the Government defend the case.
  • Do not send or give copies of the claimant’s medical chart or computer records to anyone. Leave the transfer of patient documents up to the medical records librarian or risk manager, who are trained to know what and with whom information can be shared.
  • Outside medical records that are not in the possession of the IHS or Tribal facility after a tort claim is filed are not necessarily discoverable by the Federal Government (at the administrative tort claim stage). The patient may appropriately decline, at the advice of their attorney, to give permission for the facility to request these records.
  • Never discuss a pending tort claim or suit with the media. Refer all such calls to the facility’s chief executive officer. Decline all requests for interviews.
  • Once a case goes into litigation (suit stage), there will be a discovery phase when you may be asked to give a deposition (see following section). This is the one and only time you will be authorized to discuss the case with the plaintiff’s attorney. A specific meeting will be scheduled for this purpose, and an AUSA will be present to assist you.
  • Finally, if you ever happen to be named to the National Practitioner Data Bank as a result of a federal malpractice tort claim or suit, your state licensing board may desire to perform their own independent investigation of the case. On occasion the board may call you directly requesting information on the case and even ask for copies of the medical record. Please do not send any copies of medical records directly to your state board as Federal Privacy Act statutes do not permit releasing these documents unless they have been properly de-identified; in most cases the requesting entity must first file a Freedom of Information Act request (see Section XIII). Refer all such calls to your facility risk manger or the IHS Risk Management Program.

1 For more guidance on this issue, an IHS circular tentatively titled Communicating Outcomes of Care to the Patient is being planned for publication during late fiscal year 2006 or early 2007.