Managing Medical Liability Risks

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Managing Medical Liability Risks

Pediatricians should be aware that telephone care with patients has many of the same medical liability pitfalls as office visits, and a few additional risks unique to non–face-to-face-care. This article suggests ways to manage legal risks specific to pediatric telephone care.

Establishing a Doctor-Patient Relationship

A doctor-patient relationship is established when a physician provides medical advice to a patient (or the parent/legal guardian of a minor patient) over the telephone. With that relationship comes a legal duty, one of the foundations for a malpractice claim. 

Documentation of Calls

While there is some controversy over the degree to which telephone calls with patients must be documented, it is clear that any medically relevant information obtained or given during a call should be recorded. Referrals to other physicians, probable drug reactions, changes in medication, severe injuries, and potentially serious symptoms are examples of these.

After-hours calls are frequently taken "on the run" by physicians, and a system must be developed for ensuring that documentation reaches the patient's chart in a timely fashion. Oftentimes, physicians dictate a message into their mobile phone (if it has that feature), and others use PDAs or inscribe notations on low-tech telephone encounter forms at the time of the call that can be pasted into patient chart later. Delayed entries should include the time the note was entered into the chart as well as the time the call was received. If you plan to bill for telephone care, the documentation will need to be even more thorough.

Documenting the call-back instructions given to parents is often as important as documenting the reported symptoms. In many cases, these can be abbreviated simply as PCWAS: "Call me back if your child's symptoms Persist, if they Change or are Worsening, or if they cause you Anxiety. Also I need to know if they include any of the following symptoms that are Specific to your child's condition." (For example, vomiting, sleepiness, or severe headache after head trauma.) It is also important to document conversations with telephone triage services, emergency department physicians, and others with whom you have offered patient-management advice.​

Additional AAP Telephone Care Resources

Pediatric Telephone Protocols, 15th Edition
A go-to resource for telephone care triage, which covers a broad spectrum of caller concerns. 

Pediatric Nurse Telephone Triage
A decision-support tool that is a companion to Pediatric Telephone Protocols, and helps office staff deliver superior telephone advice. 

Breastfeeding Telephone Triage and Advice​​
Resource to help nurses, lactation professionals, and other medical staff confidently advise breastfeeding mothers by phone.​​​​​​

Advertising Disclaimer

​Avoid a Wellness Bias

When a patient has been examined by you or another physician in the recent past, and little pathology was found, there is a tendency to be overly reassured by that examination. Each call must be treated in a "stand-alone" manner to be certain that new or worsening symptoms receive prompt attention. A common source of telephone liability occurs when physicians don't respond appropriately to a patient's complaints after a recent benign examination. Be wary when the patient is reported to "look much sicker" or "has much more pain" since the prior encounter.

Watch for "Hidden Agendas"​

Whenever calls seem inappropriate for the time of day, the number of calls about a single symptom seem excessive, or the degree of anxiety exhibited by the parent is out of proportion for the problem, the real reason for the call may be different from the symptoms being presented. It is best to politely answer the parent's questions first, and then follow with a question like "You have called about this three times today. The symptoms don't sound serious to me. Is there something else I need to know?" The most important response from a parent is "I can't put my finger on what is wrong, but my child just isn't acting right and I really feel frightened by the way he looks."

Use Language that is Descriptive and Unambiguous

Because the child is not actually seen over the telephone, it is sometimes necessary to develop a specialized telephone language to evaluate the severity of illness. "Trouble breathing" can mean severe dyspnea or a stuffy nose. It is preferred to ask about "straining or working hard to breathe" or "pulling to get air in and out." Similarly, learning that a febrile child has a rash may not be helpful without knowing whether it looks like "bleeding or bruising under the skin" or whether it has the sudden appearance of "red freckles."

Protect Patient Confidentiality

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) regulations apply to telephone calls between patients and medical staff. Conversations with and about patients (with pharmacies, other physicians, therapists, etc.) should be conducted in places where names and sensitive information will remain private. Be especially wary of answering requests for patient information from individuals who represent themselves as family members, insurance representatives, and helpful friends – especially following trauma. Before sharing information, you must be certain of the caller's identity and obtain the permission of the parent or legal guardian of the minor patient. Telephone messages left with persons other than the child's parent or legal guardian or on answering machines should be purposely vague but not cause undue anxiety.

Practice Good Medicine

This is the best but not infallible protection against malpractice actions. It is also very important to remain an ally and advocate for your patients and their families. Statements like "This sounds terrible. I don't understand why you didn't call me sooner" may be intended to let parents know that a poor outcome is not your fault. Instead – you might create parental guilt, making parents want to blame someone else – and your insensitivity might place you first on that list. A much better strategy is to express empathy with anxious parents' concerns. When you do, you are more likely to be rewarded with their loyalty and gratitude.

​The recommendations in this publication do not indicate an exclusive course of treatment or serve as a standard of medical care. Variations, taking into account individual circumstances, may be appropriate. This content is for informational purposes only. It is not intended to constitute financial or legal advice. A financial advisor or attorney should be consulted if financial or legal advice is desired. 

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