Malpractice: How to avoid liability associated with after-hours phone calls

Key Points

Dealing with patient phone calls after hours is no easy task. Protecting yourself from liability in these cases takes good communication skills and thorough documentation.

The best evidence for a defense is a progress note or message pad note entered into the chart, explaining the nature of the patient's complaint in the telephone call, as well as the advice given by the doctor.

Suppose a patient's wife calls and reports that her husband has a severe headache, and the patient later has a cerebral vascular accident (CVA) with residual physical disability. The patient's wife will claim that she told you there was left-sided weakness and that you told her to give her husband an aspirin. You will claim that she only mentioned a severe headache and that you remember it well.

Your note should include the following information: date and time, caller's name and patient's name, complaint, recommendation (action taken, advice given, medication advised or prescribed), and your signature.

COMPLAINT

Your note must describe the complaint. Studies show that it will take the patient an average of 90 seconds to explain, and you should resist the temptation to interrupt with a directed question.

Follow-up questions and answers should be documented, i.e., if you asked about weakness, dizziness, speech, etc. You could prove that the wife did not tell you there was left-sided weakness if you include an accurate description in your note about the patient's complaint.

RECOMMENDATIONS

Suppose the patient did report left-sided weakness, and you directed the wife to call EMS stat. Your note would reflect that.

Your note must explain your directions in simple terms. Remember that patients understand only a percentage of what the doctor says, and frantic and frightened patients or family members may not be the best listeners. Be clear about your immediate recommendations and what to do if a problem develops. Ask the caller to repeat your instructions if you doubt their comprehension.

DATE AND TIME

Every minute counts in the treatment of CVA and administration of tPA, so an important liability question will be the time of the patient's call. For this reason, make sure your note is timed and dated.

If you returned a patient's call and there was no answer, or it went to voice mail, you should document that you did call. The patient may claim he waited for your return call before calling EMS or going to the ER.

When the note is relevant to treatment, enter it in the chart. If it is relevant to a patient admitted to the hospital, enter a copy in the hospital record.

You don't have to make a note for every call, but you will protect yourself if you do it for the serious calls. Make sure you and your partners document phone conversations, and train your staff to do the same.

The author is a health-care 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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