Patient Adverse Events: Negotiate or Face a Malpractice Suit?

I was contacted by a physician client last week with regard to a sensitive patient matter. She had performed a procedure on a long-time patient which, unfortunately, led to the patient being hospitalized as a result of a known risk factor associated with the procedure. The patient spent several days at the hospital and then returned to work. Although there was no permanent physical harm, the patient did incur medical fees and missed work.  

During the patient’s medical emergency, the physician and her partners regularly visited the patient, continued to provide care to other family members of the patient and maintained a caring and supportive relationship with the patient and his family. Although they were unhappy that such an outcome had occurred, the physician and her partners did not feel that she had done anything wrong in her care of the patient.  In her career, she had never had such a complication in performing the procedure, although it was a known risk which had been explained to the patient and acknowledged in a signed consent.

During a subsequent patient follow-up visit, the patient thanked the physician for her ongoing support and care. She then produced a chart which detailed the costs she had incurred as a result of the hospitalization: lost accrued vacation, lost work time, out-of-pocket medical costs, etc. The patient hinted he was looking for payment to cover the listed costs. The insinuation, of course, was that failure to make payment could lead to a more expensive outcome.

My client immediately contacted her insurance carrier who responded that should there be a malpractice claim, it would be handled by the carrier. The carrier further suggested that the physician speak with her business lawyer.

What is the correct way for a physician to handle such a situation? Although I am not a malpractice lawyer, I do make the following recommendations:

1. Contact your malpractice carrier and your private attorney immediately. Know what your options are and what counsel recommends. Do not rush to action out of fear, but take time to think through the issues. Malpractice carriers usually have free hotlines for these kinds of questions so do not let fear of legal fees stop you from getting good advice.

2. Always be careful about paying any money to a patient. From a physician perspective, payment to a patient can be misinterpreted as a bribe or kickback. Additionally, even if a decision is made (with advice of counsel) to make some sort of payment, it would need to be accompanied by a release of claims and consideration of other legal issues. Never pay anything to a patient without legal advice!

3. Consider not responding to the patient demand at all. Talk to your carrier about the likelihood of success on a claim by the patient and then let your carrier do its job if a claim is filed. In most states, physician certification is needed to determine if a case has merit before a lawsuit can be filed. This is exactly the type of situation that such requirements were intended to address.

4. Be prepared for the patient to be angry if you refuse to make payment. This could include negative comments on online sites about your office or other disparagement. Whether or not a payment is made, it is likely that the physician-patient relationship should be terminated, as it will be difficult to continue to care for the patient (and possibly the patient’s family). Be sure to terminate any patient in a proper manner. See my previous blog for steps on terminating a relationship properly.

Most physicians will be sued at least one time during their career. Many more other potential cases are settled and negotiated without the need for litigation. Be aware that if a patient approaches you regarding any type of adverse event, it’s important to seek legal counsel before choosing any course of action. As always, make sure you have the correct policies in place in your practice to inform patients of potential risk, and obtain informed consent for all treatment and procedures. A fully informed patient hopefully will help decrease your risk of liability.