How to avoid malpractice liability in cross-coverage arrangements

August 21, 2009

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.

Key Points

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 lj@bestweb.net
. 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 memalp@advanstar.com
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