Lee J. Johnson, JD

Many doctors are reluctant to notify their insurance companies under such conditions because they are afraid their rates will increase. Several good reasons to notify an insurer exist, however: 

• You can ensure that all relevant records will be secured. 

Once you suspect a lawsuit, keep your records in a locked, fireproof file to which only you have the key, so that they won't be lost, damaged, altered, or destroyed. When you report a claim, your carrier probably will request that you take such action. If you do not do so and a lawsuit commences two or three years after the incident, it might be impossible to find the all of the records. 

• It also looks bad if the whole record can't be found.

 A fire destroyed all of one doctor's records. When a lawsuit commenced, the plaintiff's attorney filed a charge of spoliation of evidence. The charge was not upheld, but the jury could not have been favorably impressed by the argument being made. 

• You can ensure that all vital testimony will be conserved. 

You will not remember much about a particular patient you see today when you go to trial in five to 10 years, and neither will your colleagues, the nurses, or the staff at the hospital.

Once you report a request for records to your insurer, the company will evaluate it and will send an investigator if it deems that a lawsuit is probable. The investigator will talk to you and other witnesses while your memory is fresh. The investigator will take your statement, which can be corrected, notarized, and saved. Your testimony, and that of key witnesses, can be preserved should litigation occur later. 

Most policies contain a notice provision stating that the insurer may deny coverage if a physician fails to notify the carrier of a request for records in a timely manner. This clause aims to prevent the insurer from being surprised by litigation and also aims to prevent the defense from being compromised.

For example, a doctor could settle a claim with a patient, obtain a release, and never notify his insurer because he does not want his rates to increase. If the patient sues later and the court allows the lawsuit despite the release, the insurer would have the right to refuse representation and indemnification. Sometimes the insurer will include a defense and reserve the right to evaluate the judgment.

A few disadvantages are associated with notifying your insurer, however. Doing so may induce the insurer to create another file, which could factor into an adjustment of your premiums later. Also, your settlement of the matter may be slowed as you wait for the insurer to ascertain liability and authorize payment. Lastly, your settlement could end up being reported to the National Practitioner Data Bank.

If you think questions could be raised about the quality of your care, if the patient has had a bad result or is unhappy, or if you're unsure of the lawyer's intentions, however, report the request. It benefits you and your insurer to get an early jump on a potential lawsuit. The insurer is unlikely to penalize you for reporting a request for records.

The author is a healthcare attorney in Mt. Kisco, New York, and a

Malpractice Consult deals with questions on common professional liability issues. Unfortunately, we cannot offer specific legal advice. If you have a general question or a topic you'd like to see covered here, please send it to 

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Inform your malpractice insurance carrier any time you have suspicion that a patient is considering a lawsuit.

Don't be afraid to contact your insurer when you smell a suit at your doorstep

Patient A has lost his job and benefits, including his health insurance. He's complaining of stress-related headaches and GI problems that so far have not been treatable. You have suggested therapy, but the patient says he can't afford it. Now he's complaining about his care. 

Patient B, meanwhile, has undergone Botox treatments, removal of a skin growth for cosmetic reasons, and other services not covered by insurance. Now this patient is dissatisfied with the results. You suspect that he simply doesn't want to pay his bill. Moreover, you're afraid that he is going to file a claim unless you waive your fee. 

In these difficult economic times, you may find that more patients are refusing to pay for services rendered and others are complaining more about their care. If you have a patient who matches one of the examples above, it is critical that you maintain communication with him.  

Perhaps you could suggest an additional treatment that might remedy the problem, and you might consider offering that treatment for no charge.  

Defusing patient complaints by writing off all or part of a bill can be a good legal strategy under certain circumstances. If the bill is small and there are liability issues in the chart, a write-off may be the best decision you can make: Losing a little money now could end up saving you a lot in the future. 

That's not to say waiving a bill is the best course of action in all situations. If the bill is substantial, but you're convinced that your care cannot be legitimately questioned, billing the patient may be worth the risk of a lawsuit. In either case, make the decision yourself and never allow the bill to automatically go to a collection agency. 

Some practices follow a procedure in which the office manager will occasionally reduce a bill or waive the copay or deductible if a patient has a legitimate complaint or is otherwise unhappy. If you waive a bill with insurance, make sure you are consistent with the rules of that third-party payer. If there is any question about whether there was a deviation from the standard of care, review the chart.  

If you decide to waive a bill, make sure that you and your staff stress that you want all your patients to be happy with their care. Never intimate that there could be anything less than the appropriate standard of care. 

Of course, waiving a bill doesn't automatically immunize you from potential litigation. While a written-off bill can be introduced into court as evidence, it can cut both ways: Your lawyer will use it to portray you to the jury as a gracious physician who didn't want to burden a dissatisfied patient. The plaintiff's lawyer will use it to depict you as a guilty doctor trying to buy your way out of trouble. 

There is a chance, however, that you can head off potential liability if the patient feels like you're working together as a team to solve the problem. Waiving the bill might be a good place to start. 

The author is a healthcare attorney in Mt. Kisco, New York, and a 


. Malpractice Consult deals with questions on common professional liability issues. Unfortunately, we cannot offer specific legal advice. If you have a general question or a topic you'd like to see covered here, please send it to 

In these difficult economic times, you may find that more patients are refusing to pay for services rendered and others are complaining more about their care.

Free care now could mean big savings later

But these arrangements should be formally established-preferably written and reviewed by an attorney-between physicians who cover for each other's patients.  

The main liability danger in a cross-coverage arrangement is "abandonment." One definition of abandonment is "to withdraw one's support or help from, especially in spite of duty, allegiance, or responsibility." If a patient is in the middle of treatment and there is a lapse in the continuity of care, the patient could sue both his doctor and the covering doctor, claiming abandonment and malpractice.  

You must make sure the doctor covering is in the correct specialty to handle your patients. For example, a two-person general surgery practice arranged coverage with a primary care physician. The stated rationale was that the competing surgery group in town would not agree to any coverage arrangements. But treatment by a primary care physician opens the surgery practice to a claim of breach of duty in its choice of covering doctor, and it opens the primary care physician to a claim of falling below the standard of care of a reasonable surgeon. In malpractice cases, the defendant-doctors are held to the standard of care in the specialty in which treatment is rendered. (To learn more about referrals and liability, go to 

									http://memag.com/referralliability

If you agree to cover for another doctor, insist on getting access to records and/or conversations with the primary treating physician, and report back in writing any problems that arose while you were covering. 

Most physicians have informal oral agreements with covering physicians. But a written contract that anticipates and spells out in detail all potential problems could be advantageous in the event of litigation-or help avoid litigation altogether. A formal agreement gives everyone the chance to suggest terms and raise objections. 

Any coverage arrangement should be as specific as possible, especially about the times to start and end cross coverage. Consider the following scenario: A solo practitioner in a three-doctor call group that covers for each other on alternate weekends and major holidays expresses concern that one doctor is abusing the system. The problem doctor either closes her office early on non-holidays or directs her patients to the complaining doctor's practice without first asking him to cover. He wonders if he could communicate to her patients that his practice is not liable if the other doctor's patients continue to direct their calls to his office during non-weekend or non-holiday hours. 

Of course, the complaining doctor cannot limit his liability simply by writing a letter to his colleague's patients. He will have to solve the problem with the other doctor or discontinue the coverage arrangement. 

Clear cross-coverage arrangements result in better care for your patients and for the patients you are called to cover. They also result in less likelihood of future litigation. 

Frank Weinstock, MD, contributed to this column.

The author is a healthcare attorney in Mt. Kisco, New York, specializing in risk-management issues. She can be reached at 

For a solo practitioner or a small group practice, cross-coverage arrangements are like oxygen: Without them, there is no life-that is, no weekends, no evenings, no vacations, and no holidays.

How to avoid malpractice liability in cross-coverage arrangements

Let's say you're driving in your car and pass an accident on the side of the road. Or you're in a restaurant when the man at the next table begins to choke. What should you do? Can you be held liable if something goes wrong? 

Public policy in every state encourages health professionals to render aid in an emergency situation, and Good Samaritan laws typically apply to physicians who voluntarily provide service outside the routine practice of medicine. 

In some states, Good Samaritans are immune from lawsuits; in others, they face liability only for gross negligence. The usual standard of negligence in a malpractice lawsuit is falling short of what a "reasonable" practitioner in the same specialty would have done in similar circumstances at the time of the event. 

To qualify for Good Samaritan protection, treatment must be rendered in a true emergency situation, such as the above examples of passing a car wreck or rendering aid to someone in a restaurant; the medical care must be "voluntary"-i.e., the doctor must not seek remuneration; and payment cannot be sought or accepted. If you bill a patient after treatment, you lose the legal protection and would be held to the standard of ordinary negligence, even if the situation was an emergency.  

These qualifications are exemplified in one New York case: A doctor was stopped in the lobby of his apartment building by the superintendent's wife, who begged him to look at her husband. After checking the man's pulse and heart rate, the doctor called for an ambulance. Later, the man died at the hospital. The widow sued the physician for wrongful death, but a judge dismissed the case against him. The situation was a true emergency, took place outside a hospital, and the doctor didn't seek payment. 

Informed consent conversations are often impossible in emergencies, especially if the patient is unconscious or disoriented, and most state laws allow for this contingency. You aren't required to secure the patient's consent if any delay in treatment would increase the risk to his life or health, but you should document your medical judgments at the earliest possible moment. 

Malpractice insurance policies cover medical treatment in Good Samaritan situations. Usually, the defense attorney is able to make a motion to have the doctor-defendant dropped from the case or will argue at trial for the doctor's immunity from liability on the basis of the standard of gross negligence. There's nothing to prevent the patient from suing you, but liability is extremely rare. 

So, should you volunteer to help? If you think you can be of assistance and you would likely be covered by the Good Samaritan laws, absolutely. A Good Samaritan will be exonerated as long as he acts in good faith. Fear of liability shouldn't deter you if you want to help out. 

. Malpractice Consult deals with questions on common professional liability issues. Unfortunately, we cannot offer specific legal advice. If you have a general question or a topic you'd like to see covered here, please send it to 

A Good Samaritan will be exonerated as long as he acts in good faith.

Author | Lee J. Johnson, JD

Articles

Don't be afraid to contact your insurer when you smell a suit at your doorstep

Free care now could mean big savings later

How to avoid malpractice liability in cross-coverage arrangements

Don't let fear of liability deter you from being a Good Samaritan