Patients may suffer unexpected outcomes, such as an adverse reaction to a medication, a surgical complication, a fall in the exam room, delayed healing, a misdiagnosis, etc., that may or may not be the result of malpractice. Regardless, physicians are at risk for being named in a lawsuit if steps are not taken to mitigate the risk. Such
steps include clear and honest communication with the patient and/or the patient’s family regarding the facts surrounding the unexpected outcome and showing compassion and concern for the patient.

A primary factor in a patient’s decision to pursue a malpractice case often is lack of communication from the physician regarding an unexpected outcome or undesirable result. Patients want answers to their questions. They want honest information about what happened, why it happened, how consequences will be mitigated and, in the
case of a medical error, what is being done to prevent reoccurrence.

A little compassion goes a long way in reducing the likelihood that a patient will sue. In many instances, prompt acknowledgement of the unexpected outcome or the patient’s dissatisfaction and an empathetic statement such as, “I’m sorry this happened to you” will be all a patient needs to hear.

But, isn’t saying “I’m sorry” an admission of liability? Not necessarily. An admission of liability occurs when a statement about the acceptance of culpability or negligence is made, for example, “It is my fault that this happened to you.”

Empathetic statements should not be about admitting fault or liability, but rather about connecting with the patient and expressing regret for the patient’s discomfort and/or predicament. Words that admit to negligence or malpractice should be avoided, unless it is a known fact that a medical error occurred, such as wrong-site surgery. Instead, the patient should be provided with an objective, factual description of the event (without accepting or placing blame), a sincere acknowledgment of regret for the unfortunate nature of the event and a plan for continued care and treatment.

You are encouraged to become familiar with your state’s law regarding apologies or benevolent gestures as the provisions vary from state to state. It is also important to become familiar with the disclosure policies and procedures at all hospitals where you have privileges.

While there are no guarantees, honestly acknowledging and addressing an unanticipated outcome and offering benevolent statements and gestures can help minimize patient anger and open lines of communication. This, in turn, may prevent the filing of a lawsuit.

You may consult with PICA’s Risk Management Department or Claims Department for guidance prior to offering benevolent statements or gestures.

Avoid collegial criticism. Many patients make the decision to sue a doctor based on the comments of another doctor, usually a subsequent treating doctor. When patients ask about the care they previously received, or when you question the treatment that was rendered to a patient, consider that many times you only have the patient’s side of the story and partial, if any, prior medical records. Therefore, you can only speculate on the other doctor’s rationale for treatment or the circumstances surrounding the care and treatment of the patient.

It is best to encourage the patient who has a question regarding another doctor to talk with that doctor directly. If you have questions regarding the care provided by another practitioner, call the doctor to discuss the care and clarify the issues, if possible, or obtain copies of all pertinent medical records.

When talking to a patient who is questioning care by another doctor, or when you question the care by another doctor, it is best to document the facts and avoid commenting on the other doctor’s care. Facts include physical examination findings, the patient’s current condition/diagnosis, the plan for continued care, etc.

Criticizing another doctor’s care can also open you up to increased liability. Criticizing another doctor’s judgment may imply that you can do a better job. If the outcome of your treatment is less than optimal, the patient may sue you as well as the prior doctor! Likewise, if the patient sues the previous treater, that doctor may decide to bring you into the case and attempt to blame you for the ultimate outcome.

Title III of the Americans with Disabilities Act (ADA) requires that places of public accommodation, including physician’s offices, eliminate any kind of discrimination against individuals with a disability. Individuals with a disability include those with hearing impairments.

The Department of Justice (DOJ) promulgated regulations to implement Title III of the ADA. These regulations state, “A public accommodation shall take those steps that may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals
because of the absence of auxiliary aids and services, unless the public accommodation can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages or accommodations being offered or would result in an undue burden, i.e. significant difficulty or expense.” (28
CFR 36.303.) The term, “auxiliary aids” is defined to include qualified interpreters, note takers, computer-aided transcription services and written materials among others. The cost of providing auxiliary aids cannot be passed along to the patient.

The DOJ’s flexibility regarding nondiscrimination requirements means that the precise requirements are not clear, especially when it comes to what is meant by an “undue burden.” In determining whether or not a particular aid or service would result in an undue burden, you should take into consideration the nature and cost of the aid or service relative to the practice’s size, overall financial resources and overall expenses.

However, the single factor of the cost of an interpreter exceeding the cost of an office visit generally has not been found by the courts to be an undue burden.

The ADA does not mandate the use of interpreters in every instance. The doctor can choose an alternative to interpreters as long as the result is effective communication. The doctor and patient should work together to mutually agree upon the type of auxiliary aid to be employed to achieve effective communication. However, there are some instances when the use of a qualified interpreter is warranted, such as:

• Obtaining medical history.
• Explaining procedures or treatment options.
• Obtaining informed consent.
• Performing treatment or surgery if the patient is conscious.
• Postoperative patient monitoring.
• Explaining medications and side effects.
• Patient education and instructions.

Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, or national origin in any program or activity that receives federal financial assistance (such as Medicare or Medicaid). The act requires that recipients, including healthcare providers, take reasonable steps to ensure meaningful access to their services,
including access by people with limited English proficiency.

The Office of Civil Rights (OCR) defines limited English proficient (LEP) individuals as “individuals who do not speak English as their primary language and who have a limited ability to read, write, speak, or understand English.”

In order to facilitate federal financial assistance recipients in complying with the law, the OCR published a policy guidance document, “Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons,” on August 4, 2003.

According to the OCR document, “Questions and Answers Regarding the Department of Health and Human Services Guidance to Federal Financial Assistance Recipients Regarding the Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons,” small practitioners and providers will have considerable flexibility in determining how to fulfill their obligations to “take reasonable steps to ensure meaningful access” for persons with LEP. This document states that the OCR will assess compliance on a case-by-case basis and will take into account the following factors:

1. The number or proportion of LEP persons eligible to be served or likely to be encountered.
2. The frequency with which LEP individuals come in contact with the service.
3. The nature and importance of the service provided by the recipient.
4. The resources available to the recipient and costs.

The document goes on to state that smaller recipients with smaller budgets will not be expected to provide the same level of language services as larger recipients with larger budgets.

If, upon application of the four factors mentioned above, the provider determines he/she is required to provide an interpreter, the provider should make the LEP person aware that he/she has the option of having the recipient provide an interpreter for him/her without charge, or of using his/her own interpreter. The LEP person may choose
to have a family member or friend interpret. However, providers may not require a LEP person to use a family member or friend as an interpreter. It is important for the doctor to consider special circumstances that may affect whether a family member or friend should serve as an interpreter, such as emergency situations and concerns over competency, confidentiality, privacy or conflict of interest (such as cases of abuse).

A major concern of social media is the constraints placed on healthcare providers by the Health Insurance Portability and Accountability Act (HIPAA). The security of patient information must always be considered in social media interactions to protect the privacy and confidentiality of protected health information. Social media networks are generally not HIPAA compliant. Therefore, individually identifiable information about a patient should not be posted on a social network site. Even if no name is explicitly stated, any information which might identify the patient (i.e., a description of a unique physical characteristic) should be avoided. Additionally, patients should not be contacted via social media regarding anything that could be considered confidential.

Office staff should be made aware of the potential for violation of patient privacy. To protect against unwitting or intentional breaches of privacy, you should institute written communication policies that clearly forbid online disclosure and discussion of patient health information. Require staff to sign confidentiality agreements and
acknowledge annually that they have read and understand the policies and agreements.

Appropriate boundaries of the patient-physician relationship should be maintained when interacting with patients online. A professional demeanor should always be maintained. Maintain separate personal and professional identities when using social media. You can create a separate account for your professional practice and allow patients to “like” or “follow” you. You can then provide your patients with information about your practice, educational information, etc.

To aid in maintaining appropriate boundaries with patients, do not become “friends” with your patients. If you receive a “friend” request from a current or former patient, politely refuse and explain to the patient that it would be inappropriate.

Use privacy settings to safeguard personal information and content to the extent possible. However, realize that privacy settings are not absolute and that once on the Internet, content is likely there permanently and could be discoverable. Refrain from unprofessional posting or comments which contain profanity, sexually explicit material
or discriminatory remarks. Be aware that your actions online and the content you post can negatively affect your reputation among patients and colleagues. Additionally, in the event you are named in a lawsuit, inappropriate or questionable social media practices could cause your character and credibility to be questioned.

It is also important to avoid the appearance of providing medical advice to someone with whom you do not have an established relationship. Doing so could open you to medical malpractice liability and the risk of practicing podiatry in jurisdictions where you are not licensed. Disclaimers should be used to state clearly that you are not giving podiatric advice and that readers should consult their own practitioners for treatment options or call your office for an appointment.