Montana Dental Association
Medical-Legal Issues
garlington|lohn|robinson
Larry E. Riley, JD
A. Craig Eddy, MD, JD, FACS
4/30/2010
(406) 523-2500
aceddy@garlington.com
leriley@garlington.com
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Type of Suits or Issues
Medical Office Might See
Employee / HR Suits
Wrongful Discharge from Employment Act
Employment Discrimination
Malpractice
Regulatory Issues
Montana Board of Dentistry
Slip and Fall / General Liability
2
Ounce of Prevention
Best Insurance is not for Sale
 Communication with patient and staff
 Rapport
 Listening
 Attitude
 Not Rude and Rushing
 Good Charting - Medical and HR
3
They may not remember what you said
They will remember how
you made them feel
4
Human Resources
- For Office Practices
 Montana is Employee Friendly
– Employer Unfriendly
 It is not an employment at will state
– After Probationary period can only fire for
good cause
 Employment cases are very expensive
5
Prevention - HR
 Good Office Policies
– Make sure handbook is available
– Follow your policies
• Under WDEA – otherwise lawful termination is
wrongful if you don’t follow your own policies on
discharge and termination
 Good Communication
 Fair and Even Handed
 Address Workplace Issues Promptly
– Hostile work environment
– Harassment – gender and otherwise
 Use Checklists
– Termination
– Discipline
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Job Descriptions
Business reason why the job exists
Qualifications
Primary duties/essential functions
Review on an annual basis
Use as measuring stick for annual
evaluations
Exempt or Non-exempt
Probationary period - 6 months
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Employee Policies
 No Discrimination/Harassment
 Grievance Procedure
 Workweek defined
 Payment of final wages: next payroll
day or within 2 weeks of last day,
whichever is sooner
 No expectation of employee personal
privacy when using practice
computers/phone/fax
 Acknowledgement of Understanding
 Ability to extend probationary period if
necessary
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Wage and Hour Issues
Wage and Hour / FLSA
Exempt—Administrative, Executive,
Professional (with special rules for
IT employees)|
Employee v. Independent
Contractor
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Wrongful Discharge
 What Constitutes a Wrongful Discharge?
– Discharging an employee for refusing to violate public
policy or in retaliation for reporting a violation of public
policy
– Discharging an employee
without good cause
– Discharging an employee in violation of the employer’s
written personnel policies
 What Constitutes a Legitimate Discharge?
– Legitimate economic reasons
– Disciplinary / Performance concerns
– During a probationary period of employment, the
employment may be terminated at the will of either the
employer or the employee on notice to the other for any
reason or for no reason
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Wrongful Discharge Damages
 Up to 4 years lost wages & fringe benefits + interest, calculated
from the date of discharge
 Fringe benefits
–
–
–
–
Employer-paid vacation leave & sick pay
Medical insurance
Disability & life insurance benefits
Any pension plan pay
 Award is discretionary
 NO emotional distress, pain & suffering, or other compensatory
damages
 Employee has a statutory duty to mitigate his or her damages
– Employee’s earnings or earnings an employee could have made
may be deducted
 IF employee was discharged for refusing to violate public policy
or in retaliation for reporting a violation of public policy
–
the employee may seek punitive damages.
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Discrimination:
1. The act of discriminating.
2. The power to recognize or draw fine
distinctions.
3. Treatment or consideration based on class
or category rather than individual merit;
partiality or prejudice.
Am. Heritage College Dictionary (3d ed. 1997)
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Why should employers be
concerned about discrimination?
Exposure to liability
– Damages for front pay and back pay
– Damages for emotional stress
– Punitive damages (federal claims only)
– Attorney’s fees
– Transaction costs high
Bad Publicity
Lost Productivity
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THE PROTECTED CLASS
AGE
RACE/
COLOR
GENDER
DISABILITY
NATIONAL
ORIGIN/
CITIZENSHIP
RELIGION/
CREED
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How does discrimination
occur?
DISPARATE TREATMENT
DISPARATE IMPACT
FAILURE TO ACCOMMODATE
RETALIATION
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Age Discrimination
 Age Discrimination in Employment Act 1967
 40 years or older
 The Older Workers Benefit Protection Act of
1990 (OWBPA) amended the ADEA to
specifically prohibit employers from denying
benefits to older employees.
 Employers are permitted to coordinate retiree
health benefit plans with eligibility for
Medicare or a comparable state-sponsored
health benefit.
16
What constitutes Sexual
Harassment?
Unwelcome sexual advances,
requests for sexual favors and
other verbal or physical contact of
a sexual nature constitutes sexual
harassment when:
• it is a condition of employment;
• it is a consequence of employment;
or
• it is an offensive job interference.
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HARASSMENT FACTS
 The victim or harasser may be a man or a woman and
does not have to be of the opposite sex (or a different
protected status)
 The harasser may be a supervisor, a co-worker or
even a non-employee.
 The victim does not have to be the person harassed,
but could be anyone affected by the conduct.
|
 Actionable harassment may occur without economic
injury.
 The harasser’s conduct must be unwelcome to the
victim.
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When is the employer liable for
discriminatory harassment?
Was conduct based on a
protected status?
Was conduct objectionable
to the victim?
Was conduct severe or
pervasive?
HARASSER ACTED AS AGENT FOR
EMPLOYER = LIABILITY
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AGENCY LIABILITY
For actionable harassment, there is no
liability if:
For actionable harassment, there is
no liability if:
The employer exercised reasonable
care in preventing the harassment
The employee failed to take
advantage of corrective
opportunities.
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Reasonable Care =
ANTI-HARASSMENT POLICY
 Make it clear that discrimination or harassment is not
tolerated.
 Define prohibited conduct broadly/ plainly.
 Simple and direct complaint procedure- include
alternative complaint paths.
 Measures that instill confidence and candor.
 Make it flexible.
 Enforce it!!!!
HANDLING SEXUAL HARASSMENT
COMPLAINTS
Follow your Anti-harassment Policy.
Do a reasonable investigation- Document!
Involve the alleged harasser and victim.
Take proportionate action, but don’t make
promises you can’t keep.
Remember: You must have “good cause” to terminate a
non-probationary employee!
22
SIMPLE TIPS FOR AVOIDING
HARASSMENT CLAIMS
 Do a thorough job hiring
employees.
 Think before you hit the
“send” key.
 Separate “work” and “play”
 Avoid idle time.
 Create a positive work
environment.
23
Malpractice Issues
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General principles of liability
 Good News
– Non-physicians have minimal personal risk
• Generally Employees
– Respondeat Superior
• Captain of the Ship Doctrine
– Now somewhat in question
• Deeper Pockets Available
• Generally have good family relationships
 Bad News
– Ticket to deep pockets of hospital
– Captain of Ship Doctrine Eroding
25
General principles of liability
 Duty: Arises in 4 main ways
–
–
–
–
Common Law
Legislation
Regulatory (CMS, JCAHO)
Hospital and Nursing Policy
 Breach (Negligence)
 Causation (Connects Breach and Damages)
 Damages
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Duty, Breach, Causation,
Damages
Plaintiff has Burden of Proof
Preponderance of Evidence
All Elements must be proved
27
Montana Medical-Legal Process
 Filed and Heard by Medical Legal Panel
 Filed State or Federal District Court
 Discovery
 Expert Witnesses
 Mediation
 Trial
28
Truth – Facts – Justice
Illusive - Not Black and White
People see, perceive and remember
the same event differently
29
Potential Problems Causing Litigation
 Criticizing other health care providers
 Altered Records
 Different people have different perceptions
 Dentistry is not an exact science
 Dentistry constantly improving (changing)
 Jury’s view – through the retrospectoscope
 What is reasonable in an unusual event?
 Battle of Experts
 Watch out for the “ordinary” task
– The kind you do without thinking
30
Other Issues
What is a “bad outcome”?
– Unrealistic Expectations
• Miracle outcomes
• Television Society
Sympathetic Patient
Undesirable Nurse or Doctor
31
Dental Malpractice Claims Will
Always Exist
 To err is human
 Bad Providers
 Unpredictable events
 Catastrophic Outcomes
 Interpretation of Standard of Care
 Provider Impairment
 Systems Fail
 Money involved
32
Points of View in a Malpractice Claim
 Patient
 Incident report
 Dentist
 Peer Review
 Administration
 Insurance
Company
 Plaintiff Lawyer
 Defense Lawyer
 Experts
 Med Mal Panel
Members (6)
 Judge
 Jury (12)
 Supreme Court
 Board of Dentistry
 Criminal
Investigator
33
Medical Record Introduction
34
Medical Record
Your Best Friend or Worst Enemy
Technical definition
Written evidence of:
– The interactions between and among health
care professionals, patients, their families,
and health care organizations.
– The administration of tests, procedures,
treatments, and patient education.
– The results of, or patient’s response to,
diagnostic tests and interventions
35
Medical Record
Purpose
 Accountability
 Communication to other providers
– Sequential picture of patient
 Memory of facts – 5-10 years later
 Research
 Satisfaction of Legal and Practice
standards
 Reimbursement
 Education
36
How Bad Charting Hurts

What poor documentation allows the
plaintiff to do
–
–
Your word against theirs
Patient Recall Generally Poor
•
They can confabulate, you cannot refute
–
–
–
Duke Study in 2003
Australia Study in Radiology 2003
If they have had any poor result jury may
be sympathetic
37
How Good Charting Helps
Never any question of facts or
times
Demonstrates to jury
– Expertness
– Trustworthiness
– Professionalism
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Elements of Effective Documentation
Medical Record Mandatories
 Use a common
vocabulary.
 Write legibly and
neatly.
 Use only authorized
abbreviations and
symbols.
 Employ factual and
time-sequenced
organization.
 Document precisely,
accurately and
completely,
including any errors.
 Dated and Timed
 Explain Late Entries
 Objective and
without editorials
 Unaltered
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What if Medical Record
Incomplete??
3 File Drawers of Information
– What is Written Down
– What You Actually Remember
– Usual Custom or Practice
40
Medical Record Pitfalls
41
Medical Record Pitfalls
Non-Standard Abbreviations
Erasures, Overwrites or
Whiteouts
Unexplained Late Entries
Ink that does not photocopy
Negative Editorial Comments
42
Example of a Poor Medical Record
43
Example of a Poor Medical Record
44
Example of a Poor Medical Record
45
Electronic Medical Record
Pointers
– Don’t depend on drop down menus
• Use the comment section liberally
– Be sure to have somewhere to scan or
somehow capture extra pieces of
paper
– Be sure to justify late documentation
46
Lawsuit Triggers
Providers who are sued the most
– Rude
– Rushing
– Failed to answer questions
Providers sued the least
– Concerned
– Accessible
– Willing to communicate
47
Apology and Montana Law
 The Montana law
 Understanding the
difference between
an expression
sympathy and an
apology.
 An effective and well
done apology is
powerful medicine.
 The lack of an
apology generates
incredible anger.
48
What to do in case of Lawsuit
House of God:
Take your own pulse first
 Get Help
– Talk to your employer immediately
 Seek good counsel
– You are out of your element
 Do not admit anything immediately
 Never talk alone
 Don’t sign anything
49
Requests from the Audience
Patient Dismissal
What to do in a Medical Emergency
50
Questions?
51
Conclusion
 The Hard Things in Life
The Trauma of Being Sued
 Options if you don’t like something
– Change the thing
– Change your attitude
 Happiness
–
–
–
–
Belong to people
Accept pain
Know you make a difference
Don’t pursue happiness: do the things that create it
52
Conclusion
Joy comes from our
inside and its
ours if we have
the will to find it
Life is mostly
froth and bubble
but two things
stand like stone
Tragedy is a human
legacy
Kindness in
another’s trouble
Joy is a human
creation
Courage in your
own
Leon Uris
– Adam Landsay
Gordon
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Three Poems to Share
People Who Take Care
Hippocrates Child
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