Physician Liability Often Goes Beyond Treatment Delivered

Those of you who have followed the last 100 or so discussions we have had here know that the primary focus of my articles is asset protection in all its forms. Those forms include legal planning, tax planning, insurance planning, and financial planning; the four columns of wealth-preservation planning.

Given recent tragic events like the mass shootings that have dominated the media and the relentless onslaught of both plaintiff-attorney advertising and the culture of blame so prevalent in the country at the moment, physicians have more reason than ever to be concerned and act proactively to protect their businesses, assets, and families. As “deep pockets” the public and the litigation system now seek to make you liable for a wide variety of issues including child welfare, gun ownership and safety and now even what a patient may do behind the wheel of a car. These issues clearly exceed the bounds of what most of you consider to be your traditional medical malpractice “risk picture."

By now you may be aware that the psychiatrist who treated the Colorado theater shooter has been named in a lawsuit by the family of at least one victim. According to one legal analyst she had a duty to report if she felt he had a specific intent to commit an act of violence against a specific person. He had apparently told her that he had fantasies of killing mass numbers of people several weeks before the shooting. She did her duty and reported him to campus police but did not require a “72-hour hold” on him, which is at least part of the cause of action cited by the 26-year-old widow of the victim. Are psychiatrists now to be held responsible for not acting on knowledge of any and every aberrant fantasy a patient may share? If that’s the case we are certainly going to need more jails and secure mental health facilities.

In another recent case a Brooklyn doctor correctly surmised that a young woman’s white blood cell count and other conditions were symptomatic of HIV infection. As part of the course of treatment he offered to have her blood drawn for a routine blood test and discovered that she did have HIV. Now she has taken legal action against the doctor for “lack of informed consent” to be tested saying that she would rather not have known, ignoring the fact that she would have thus presented a substantial health risk to the public and her own family.

Going beyond this exposure is growing trend in the legal community to blame and sue doctors who treat elderly patients for ailments including dementia. Such is the case of Arthur Daigneault, an internist who is being sued for wrongful death by the family of a elderly gentlemen who was killed when his girlfriend, the doctor’s 85-year-old patient, wrecked her vehicle when he was a passenger, killing him. The argument against the doctor is based at least in part on the idea that California statutes require doctors to be vigilant for patients with "disorders characterized by lapses of consciousness" and creates a duty for physicians to report them to health authorities who may in turn notify the Department of Motor Vehicles. Such reportable conditions may include Alzheimer's disease and related ailments and has doctors use their clinical judgment to determine if a patient is still able to drive. This story in the Los Angeles Times has additional detail on this case and several other similar instances of death or injury caused by elderly drivers.

These are just three simple examples of the growing scope of professional liability being attributed to doctors in nearly every specialty. We could provide another dozen examples in radiology, pain management, and just about any other specialty you can imagine. The key is to understand both the scope of your professional liability and make sure you are in compliance with the required standards of care. You should also possess a good understanding of your personal exposures from an asset protection perspective. Acting today is always key, there is little effective against this exposure or any other, practice related or not, as remedial planning.