Litigation in the Immediate Care Industry

Most practitioners and ancillary staff members get into healthcare because of an interest in healthcare, not law, but as they soon learn, medicine and litigation too often go hand in hand.

Urgent care centers (UCCs) and their physicians will likely be sued for medical malpractice as frequently as emergency departments are now, which could result in higher malpractice insurance coverage rates for the facilities and the physicians, says Tricia Mueller, a defense attorney for Lashly & Baer, P.C. of St. Louis.

“The biggest legal threat to urgent care centers today is the failure of urgent care physicians to recognize that patients’ complaints may be more serious in nature now than they ever were before,” Mueller says. “If an individual normally would have gone to the emergency room on a weekend for these complaints, they may now choose to go the urgent care center closest to them.”

Unlike emergency departments (EDs), however, urgent care centers do not have much diagnostic equipment. This shortfall could make them more susceptible to lawsuits if they do not perform proper triage and transfer patients when necessary, Mueller says. “Therefore, physicians and owners of urgent care centers need to be prepared for these potential lawsuits so that they can prevent them, or at worst case, reduce the damages awarded to the patient,” she adds.

Urgent care physicians are not as likely to build relationships with patients as primary care physicians are, and that lack of rapport can also make a patient more likely to sue.

Assessing urgent care litigation risk is tricky since urgent care is an evolving industry. Some experts think UCCs are more prone to lawsuits than EDs are, and others think the opposite.

“I actually believe (UCCs) they are more prone to medical misadventures resulting in liability for the simple reason that UCs have less backup and less accessibility to diagnostic tests and consultants,” says John Shufeldt, MD, MBA, JD, founder of NextCare Urgent Care.

Overall, UCCs have a low incidence of legal problems related to treatment, says Bill Wenmark, chairman of the National Association for Ambulatory Care (NAFAC). “The ED, by contrast, is faced with many more potential legal exposure issues,” he adds. “The level of ED care and type of care — life threatening, accidents, trauma, gun shots, domestic issues, etc., always seem to bring along attorneys. It may not have anything to do with the actual care provided...but just because of the search for deep pockets associated with personal injury attorneys.”

UCCs are particularly exposed to legal threats, says Nathaniel Moore, MD, president and chief executive officer of Rocky Mountain Urgent Care, PC, which has seven urgent care centers in the Denver area. “Providers in urgent care centers can be more transient,” Moore says. “This can lead to a lack of knowledge by the providers with the systems set up by the facility. Many times, an error in communication occurs because protocol is not followed. Critical information is not relayed to the patient or to the patient’s primary care provider. This can lead to an upset patient. Hiring experienced providers who are committed to the urgent care center helps to solve this problem.”

Moore agrees with Mueller and Shufeldt that an absence of clinical tests puts UCCs at the disadvantage. “Most urgent care centers do not have ultrasound or CT capabilities,” Moore says. “Many centers do not have certain lab tests, such as troponins. Because of the lack of these tests, urgent care providers have to rely on their clinical judgment. This can lead to added exposure, especially if discharge and follow-up instructions are not clearly communicated to the patient.”

Another area of vulnerability is that some urgent care staffs provide a few primary care services, either formally or informally. “In either circumstance, the patient comes to view the urgent care center as their primary care doctor, and the urgent care may be held to the same standard a primary care office is held,” Moore says. “Is the patient being informed of all the preventative care that he/she needs to be following, such as routine aspirin, colonoscopy and mammograms?”

At Moore’s facilities, the staff specifically explains to patients in written discharge instructions that they are not their primary care provider (PCP) and that they recommend following up with a PCP. “Urgent care centers should be careful in how they hold themselves out to the public and should communicate to the patient the exact nature of the relationship between the patient and the center,” Moore says.

UCCs have less exposure than EDs in regard to the level of intensity and degree of medical complexity, says David Wood, president of The Wood Insurance Group, Inc., a national brokerage for urgent care specialists. “There are key issues that come into play with how the UC lists their services and markets themselves as an alternative for some of the services the ED provides,” Wood says. “There are other concerns in emergent transfers and follow up.”

Legal topics are rarely covered in medical school and sometimes the threat of litigation doesn’t hit home until something goes wrong, Moore notes. “Physicians and physician groups should be pro-active in learning about malpractice issues,” he adds. “Our group has annual seminars to address medical malpractice issues. We talk about communication with patients, we stress written and complete discharge instructions for patients, we discuss our systems and where breakdowns can occur. We discuss cases which could become claims.”

Wenmark agrees that the average urgent care physician is not well prepared for legal issues unless they happen to have a personal interest in healthcare law. He does, however, believe that most owners, medical directors, and other partners in urgent care are usually well versed in legal and regulatory issues.

Younger physicians may be more aware of legal threats than their predecessors were, Mueller says. Many residents have spoken with attorneys about lawsuits pertaining to their care before training is even over. Some hospitals that Lashly & Baer represent have required their residents to participate in a risk management rotation.

Some physicians think that if they do a good job and are careful, they will not be sued, but such is not the case.

“The sad reality is that a physician’s skill often has nothing to do with whether he or she will be sued,” Mueller says. “Additionally, many urgent care physicians still do not know what they should do when threats of malpractice occur. Having an attorney involved earlier rather than later will make it easier on the physicians. As such, it is imperative that they contact their insurance carrier or litigation department as soon as they are served with a lawsuit.”

Legal liability is a cost of doing business in medicine, but there are many ways physicians and practice staffs can insulate themselves against liability, Shufeldt says. Careful documentation is paramount.¹ Physicians should take the time to thoroughly chart all important aspects of the physical, as information that is not charted might be subject to jury suspicion down the line, Shufeldt adds. “Illegible, handwritten notes and checkbox or template charting often give rise to documentation that is not defensible under the retrospective scrutiny of plaintiff’s experts,”1 he writes.

Owners of urgent care centers may want to consider employing a risk manager or patient advocate who is physically present at their facility so that disgruntled patients have an outlet as events are happening. Mueller believes this can help the patient walk away feeling better about his or her experience. “People tend to be much more forgiving if they feel that their voice was heard,” she says. “These patient advocates also can be a good guide for the facility on which situations could result in a lawsuit...If the claim is legitimate, the owner may be able to offer the patient compensation or forgiveness of his or her medical bill, which could be much smaller than any settlement that may be reached after a case has been litigated.”

Communication and proper marketing can also help prevent litigation. The people who think it’s an emergency room are problematic. For instance, patients frequently think they can save money by going to urgent care with their chest pain, Moore says.

Systems failures can also lead to malpractice suits. “For instance, while most urgent care centers have plain film radiology services on site, some urgent care centers may not have relationships set up with a radiologist to provide an over-read,” Moore says. “Or, the system that is set up for a radiologist to communicate a discrepancy is not well-maintained. This can lead to a delay in diagnosis for a patient, increasing the threat of litigation.”

Knowing when to call an ambulance, versus when to have patients drive themselves or be passengers in regular vehicles is also an important consideration, Mueller says. “Depending on the situation, instructing a patient and documenting in the medical records that the patient needs to present to a hospital as soon as possible may not be enough to safeguard the urgent care center from liability, especially if the patient fails to present to the hospital in a timely fashion,” she says.

The key to an effective risk management program is for policyholders to be aware of issues that affect their level of loss exposure, according to professionals at Darwin Professional Underwriters. The policyholder needs timely information on evolving legal exposures, and access to risk identification and awareness programs.²

Avoiding in-house lawsuits is also important. Moore says that many human resources companies can be helpful with this goal, since they can provide guidance on hiring, drug testing, termination, employee handbooks, etc. His most helpful resource, however, is his malpractice insurance carrier, COPIC.

“COPIC has a system set up whereby providers can receive discounts on annual premiums by accumulating a certain amount of educational points related to malpractice education,” he says. “We make it mandatory for all of our providers to obtain all of their ‘points’ on an annual basis.”

Precaution and discretion are more important than ever. Mueller recommends the following: physicians in states which allow ex parte contact with attorneys should be hesitant to meet with a plaintiff’s attorney to discuss the care they provided unless the physician has his or her own attorney involved.

“We have seen many times where a physician agreed to meet with a plaintiff’s attorney to discuss the prognosis of his or her care of the patient only to later be brought into the lawsuit as a new defendant based upon statements made in their informal conversation,” Mueller says.

References

1. Shufeldt J. Protecting yourself against medical malpractice claims. Journal of Urgent Care Medicine. December 2006.

2. www.darwinpro.com

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