Published in the October 2008 issue of Today’s Hospitalist
Q: We plan to add midlevels to our hospitalist practice, although we’re still not sure which model of midlevel care to use. We may have the midlevels work independently, either staffing our preop clinic or serving as a liaison between our group and the orthopedists. Or we may have them shadow the hospitalists during rounds.
Here’s my question: Which of those two models would have more of an impact on our liability risk?
A: Using midlevels is a great idea, but keep this figure in mind: $217-plus million. That was the medical malpractice judgment awarded in Florida in 2006 against a hospital that used a midlevel in the emergency room.
The midlevel sent a gentleman home who had had a stroke, claiming the patient had a sinus headache. The diagnosis was made without any physician supervision or exam. When the patient came back the next day, he was almost completely paralyzed.
While the award amount may have been a classic example of a runaway jury, the take-home message remains: You need to be very careful in how you supervise midlevels.
Say you decide to have midlevels staff a preoperative clinic. What are the checks and double-checks that you’ll have in place? If midlevels are simply going to be verifying that patients have had their preoperative blood work done, their blood pressure checked and their certification provided by their primary care physicians, it might be fine to have them work independently.
Or will they perform preoperative history and physicals and certify that patients are physically cleared for surgery? What level of screening will they provide, and what level of supervision will they have? If something bad happens in the operating room because a condition “such as sleep apnea “should have been detected but wasn’t, that could come back to haunt you.
Here’s another consideration when determining the right care model for midlevel employees: Midlevel training programs, as well as midlevels’ previous experience, can be all over the map. A midlevel who may have worked for a cardiology or a pain management practice would have excellent skills in that niche, while another would not have that type of focused experience.
If, however, you need that midlevel to help you cover the emergency department and the general floors, then you should plan to basically retrain that individual.
While most practices have a tendency to think, “OK, you have your license, so you’re qualified to go at it,” that’s not a smart strategy. To determine a person’s level of skills, have him or her work with your physicians for the first several weeks on the job so you can evaluate that person fully.
Use the employment contract to spell out the person’s qualifications and necessary level of supervision, but plan to invest more of yourself in terms of training and supervision than you would when hiring a physician. The more independently midlevels function in your practice, the more risk you’ll take.
Q: I’ve been subpoenaed to produce a patient chart. What should I do?
A: First, don’t panic. Next, make sure you do absolutely nothing to the chart in question. If you’re being subpoenaed to provide the chart for a malpractice case, altering the chart after the fact will likely cause you to lose the case.
Subpoenas are used to either summon you as a witness or to require you to submit evidence, usually medical and other records. Physicians receive subpoenas for a lot of reasons. You may be asked to provide a chart for a malpractice case, a workmen’s comp case for someone you treated or a personal injury case.
Regardless of the reason you’re being subpoenaed, make sure that you’re not going this alone and making independent decisions. If you’re part of a private group, alert your malpractice carrier or your personal attorney.
If you’re a hospital employee, turn the subpoena over to risk management. Use the specific chain of command, and let the commander handle it.
Don’t get personally involved in sending information, including patient charts, back and forth or in calling the attorney who issued the subpoena. You may be tempted to make that call if you’re being asked to produce records within a short timeframe. Instead, have your risk management department, malpractice attorney or personal attorney suggest a more reasonable response period.
Don’t pick up the phone to ask the attorney requesting records for more time. You have no privilege with that counsel, and you may find yourself the subject of an informal deposition.
In the case of a subpoena for a personal appearance in a non-malpractice case, recognize that the plaintiff’s attorney may be trying to get some “free” expert witness testimony out of you. All the more reason to have your personal attorney contact the lawyer who’s requesting your personal appearance and narrow the scope of your testimony.
Sometimes “and this is very specific to where you are located “if you do put in a personal appearance, you can demand a witness fee. When speaking to attorneys, I’ll mention that a subpoenaed client will be available, but only in return for a witness fee.
Even when that fee is nominal, it’s often enough to make plaintiff’s attorneys reconsider their request for a personal appearance and decide that producing documents (if those were requested) will be sufficient.
Joan M. Roediger, JD, LLM, is a partner with the Philadelphia law firm Obermayer Rebmann Maxwell & Hippel LLP. E-mail her questions you’d like to see addressed in a future column to joan.roediger@obermayer.com.
