At LAMMICO, we receive a broad range of questions from our insureds regarding medical and legal issues. Some of these issues are recurring and tend to be “Hot Topics.” The following are issues that have surfaced repeatedly in recent months and may be of interest to our insureds who could encounter them. Please feel free to contact your LAMMICO claim representative or attorney at 800.452.2120 with any further questions, or if you have a question or concern that you think would be helpful to include in a future publication.
Q. In treating my patients, I have to be mindful of CMS guidelines regarding what medical treatment is and is not approved for Medicare and Medicaid patients. As long as I abide by the CMS guidelines, am I protected from claims of medical malpractice from my patients?
A. Centers for Medicare & Medicare Services (CMS) is part of the federal Department of Health and Human Services. The guidelines and requirements it sets forth (including the “Core Quality Measures”) for what medical treatment is and is not indicated and approved for any situation does not substitute for the healthcare providers’ standard of care. As a matter of fact, policies or guidelines issued by any entity such as the American Medical Association, certification boards, etc., do not “create” the standard of care. In most situations, the CMS guidelines may align with the practitioners’ standard of care. However, CMS guidelines do not establish the standard of care. The standard of care is set forth in the Louisiana Medical Malpractice Act (LMMA, La. R.S. 40:1231.1 (A)(22)) which states in pertinent part:
“(22) … The standard of care required of every health care provider, except a hospital, in rendering professional services or health care to a patient, shall be to exercise that degree of skill ordinarily employed, under similar circumstances, by the members of his profession in good standing in the same community or locality, and to use reasonable care and diligence, along with his best judgment, in the application of his skill.”
This is the only legally applicable standard of care in Louisiana for purposes of the LMMA.
Q. I received a document served by the sheriff’s office this morning. It was served upon my receptionist who forwarded it to the office manager. Do I need to do anything further with it?
A. If you or your business entity (clinic, hospital, partnership, etc.) is served with any document, it is imperative that you contact LAMMICO immediately so that your interests are properly protected. When a legal document is served, particularly a Petition for Damages, LAMMICO is not necessarily notified unless LAMMICO is also named in the suit and received similar service. If the document’s service is not communicated to LAMMICO or your attorney, significant adverse actions can occur. After 21 days without a formal legal response, a plaintiff attorney can file a default against you or your business. A default essentially means that all allegations made in the Petition for Damages are not opposed, and the plaintiff can petition the court for a judgment, which may not be covered by your insurance policy. If a Patient’s Compensation Fund (PCF) complaint is served upon you or your office via certified mail, notify LAMMICO immediately. Failure to alert LAMMICO that you have received a PCF complaint can result in the plaintiff attorney unilaterally appointing an attorney chairman and proceeding with the claim without your representation or defense. In addition, failure to notify LAMMICO promptly of either a suit or a claim violates your duties under your LAMMICO insurance policy and could result in a denial of insurance coverage.
Q. I was named in a medical malpractice claim/lawsuit but was dismissed and am no longer involved in the claim/suit. I was recently contacted by the attorney for the plaintiff who wants to speak with me and/or take an “informal statement.” Am I obligated to speak with him/her?
A. A healthcare provider who was dismissed from a claim/lawsuit, whether voluntarily by the plaintiff, by action of the court, or by settlement, is not obligated to speak to plaintiff’s counsel. However, the attorney for the plaintiff can issue a subpoena to compel a formal deposition or trial testimony. If a healthcare provider chooses to speak with a plaintiff attorney, then the healthcare provider is entitled to charge reasonable rates for any conference for those professions that ordinarily can command an expert fee in court.
One thing of significant note that we are seeing is that some plaintiff attorneys are calling physicians no longer involved in the case on the eve of trial, advising that they want an “informal statement.” When the physician agrees to speak with the plaintiff attorney in these instances, they suddenly find that the “informal statement” is being recorded via videotape, and there is a court reporter present. This is a very one-sided deposition; the plaintiff attorney may ask leading questions when typically the physician has not reviewed his medical records for months, sometimes years. This deposition transcript can then be used against a defense witness if he is called to the stand. The deposition is usually inaccurate and can be used to discredit the witness or to “muddy” up what would otherwise be a straightforward issue. Further, the physician is likely not provided compensation for this videotaped deposition which he/she would otherwise be entitled.
If you are contacted in conjunction with a claim from which you have been dismissed, you likely have no further liability in connection with the case, but your testimony, if inaccurately taken and produced in court, can significantly adversely affect other defendants. If you are contacted by plaintiff’s counsel in a case, you are not required to speak with them, but if you do, you are entitled to proper compensation and reasonable advance notice if a deposition is being taken. Be prepared, and request a copy of the applicable medical records, your prior deposition, a copy of your submission to the Panel, or any other documents you feel necessary to accurately provide a statement of any type. Finally, in these situations, do not hesitate to reach out to your attorney to help guide you through the statement.
