COMMENTARY

Your Malpractice Advisor: Legal Risks From Your Answering Service

Lee J. Johnson, Esq.

Disclosures

November 22, 2010

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Introduction

Hello, I'm Lee Johnson, an attorney in Westchester, New York, specializing in medical malpractice defense and prevention.

Today I'd like to talk about one aspect of a doctor's life that can create a malpractice risk -- yet most doctors are not aware of it. I'm referring to the telephone answering services that you use after hours or when you're on call.

Physicians often regard the answering service as a "necessary evil." The "necessary" part is based on the potential liability if you don't respond in a timely manner and appropriately to a patient emergency. To fully appreciate this liability, let's take a worst-case scenario. A patient calls your service complaining of left-sided numbness, blurred vision, and confusion. You contact the patient hours later; the patient has a stroke; tissue plasminogen activator is not administered within the 3 hour window, paralysis ensues, and you are sued for malpractice and abandonment. You'll have to defend your standard of care in the timeliness and appropriateness of the advice you gave the patient.

You will also have to defend the standard of care of your answering service. If a patient calls with a headache and says it is not an emergency but later is diagnosed with cerebral aneurysm, you'll have to show that the failure to call you was reasonable given the circumstances. The answering service is regarded as the agent of the doctor. Therefore you are responsible for selection, training, and monitoring the service.

A pattern of sloppy message forwarding can include not calling right away, not dating and timing the calls, calling the wrong doctor, transposing a number, or garbling a message. A plaintiff's attorney could allege that you were negligent in not correcting the problem.

The operators should first ask the patient whether it is an emergency. It's always best to select a live answering service where a human voice person picks up and talks to the patient. An answering machine is not an answering service.

Make sure the service knows who is on call and how to contact that person. Give the service complete information about on-call schedules for the hospital and practice arrangements for coverage. Provide all your contact information: cell phone, text, email address, home phone, beeper number, or alternate land line where you can be reached and for what time period.

Make sure you're available. Never let the operators feel that their primary job is to deflect all calls away from your attention. Try to arrange backup coverage with another physician in case the service can't reach you. You can contract for a service to be available 24/7 in case there is an emergency even during the day. You can also ask the service to report every morning about the previous night's activity.

Don't allow the operators to diagnose or prescribe medications or treatment. They can tell patients to call 911 or go to the hospital emergency department (ED) if you cannot get back to the patient in a reasonable time.

Malpractice Risks

Patient satisfaction is also a consideration when choosing your answering service. The answering service creates the first impression of your practice after hours. Make sure the operators speak good English and are polite to the patients. If you have a multicultural patient base, you can consider having operators who speak other languages. Make sure patients are not placed on hold for long periods of time.

How can you protect yourself? Scrutinize your answering service as carefully as if it were in your own office. Pose as a patient and call the service yourself to check efficiency and accuracy. If you're not satisfied, complain to the service. If the situation doesn't improve, find a better service.

You are, after all, the one who has a duty to reach the patient. Legally, it is no excuse if the service gives you a garbled message or fails to reach you. You must defend your standard of care, that is, that a reasonable physician would have reached the patient in the same time frame and would have given similar advice.

Proximate cause -- which is defined as the causal connection between the alleged departure from the standard of care and the patient's damages -- will probably be an issue in any claim involving an answering service. The question will be, "Did the failure to get to the patient in time and/or give reasonable advice cause the patient's injuries?" Or alternatively, "Would the progress of the disease have been the same regardless of the alleged malfeasance of the physician?"

If you deem that a patient has a serious emergency, you can tell him or her to call 911, go to the ED, or have someone drive him or her there. You can offer to dial 911 for the patient, as your call will help ensure that the patient receives prompt attention. If the problem is very serious, you can tell the patient that you will meet him in the ED. You can also contact the ED to provide any necessary history, relay special concerns, and/or arrange for a follow-up office visit.

In the event of a lawsuit, you'll need to produce documentation to support your standard of care. Use telephone message pads or write notes. Make sure that you later enter the notes in the patient's office and/or hospital record. Note the patient's complaint, your advice, and the date and time of the call. The answering service can provide call recording and time stamping. Electronic tracking is better than manual trackingbecause it minimizes the chance for error.

Remember, your telephone service is an extension of your practice, and it's important to treat it as such.

If you have legal or malpractice questions, please write to me in care of Medscape Business of Medicine.

I'm Lee Johnson, and thank you for listening.

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