|By: Danni R., CMA, CCMA, CMAA, FLWD|
Contrary to popular belief you don't have to cause severe injury to a patient to face a serious law suit as a consequence of your actions or failure to act. As "little" as not following standards of care, indifference (as "little" as failing to recognize a need for help), or abandonment (as "little" as failing to return a phone call) can be reason enough to be held liable in court should any damages occur as a result.
Even though medical assistants are dependent practitioners who work under the supervision of the physician and the physician is responsible for their actions, it does not exonerate them from risk of individual liability.
It Is Not True That Medical Assistants Are Not Being Sued!
Each health care provider, practitioner, and allied health professional, including the medical assistant is responsible for his or her own negligent acts, since malpractice is defined as "the negligent act of a person with specialized training and education."
Medical malpractice is a very serious offense because of the breach of trust in the patient/doctor relationship and its severe consequences to the victim's life. Doctors, nurses, paramedical, and allied health care professionals are expected to do everything they can to restore health and promote healing, not to cause harm!
Unfortunately, mistakes, oversights, accidents, slips, mix-ups, errors, or irresponsible acts do happen. They usually occur when least expected and some of these unfortunate events may cause harm to the patient! When serious "slip-ups" happen, they have profound effects on people's lives. Malpractice events place unexpected hardship on families who suddenly find themselves overwhelmed with emotional and financial burdens. Some consequences of a mistake my be temporary, but some victims may be permanently affected by their injuries. Some may have long-term medical expenses, some may never be able to return to their jobs; yet others may not survive. Nothing is more difficult and painful than losing a loved one, and when the death resulted from someone else's negligence the family's devastation over the loss is doubled.
As more patients, their friends and malpractice lawyers become aware of the role of the medical assistant, they also see a potential malpractice target if they believe they have received a poor standard of care. Injured patients, either on their own, or encouraged by family members, friends, or their attorneys, wind up taking their cases to the courts.
Situations involving injuries or damages that generations ago would have been ignored by the injured person are now regularly the basis for lawsuits. Liability has become a major risk not only for the physician but also for allied health care professionals working under their direct supervision, such as the medical assistant. As in any legal proceedings, when a medical malpractice law suit is filed as many people as possible will be named.
The Law on Tort or Negligence:
Tort or negligence law imposes a minimum level of due care on all persons in their interactions with others, including people who choose to volunteer. Negligence is generally considered failure to act with the prudence that a reasonable person would exercise under the same circumstances
Respondeat superior is a legal term that stands for "let the master answer". It is a long established doctrine that applies when a master acts through the servant to accomplish the master's task. What this is referring to is the fact that, under specific circumstances, an employer (or master) is legally liable for the actions of his or her employees (servants) while in the course of their employment. The actions of the servant are imputed to the master.
If the servant is the medical assistant, and he/she acts negligently carrying out his/her in the medical office, he/she is directly responsible for the negligence, while the master, who would be the doctor, is vicariously liable for the servant's actions.
Requirements For A Successful Suit In Negligence Include:
Negligence in a medical office is a failure in a doctor's, nurse's, paramedical, and other allied health care professional's duty to patients and it implies a standard of conduct!
Duty requiring a person to conform to a standard of conduct that protects others from unreasonable risk of harm
Breach of that duty (i.e., the person's failure to conform to the standard of conduct)
Causal connection between the breach of the duty and the resulting injury
Resulting injury or damage which results in measurable physical, emotional or economic harm
Malpractice Insurance -- Not Such a Bad Idea!
One of the most important employment benefits is good malpractice and professional liability insurance. Every medical assistant should be encouraged to make sure they have adequate insurance coverage when working in a medical office, walk in clinic, or any other treatment facility.
However, it is not enough to accept insurance under the employer’s policy as a rider and assume this is adequate protection in case of a lawsuit. Medical assistants should insist on their own personal policy, either through their employer or on their own!
Having Malpractice and Liability Insurance Means:
The reason for having a working malpractice and professional liability insurance policy is simple: protection and peace of mind! Regardless whether a medical assistant is covered under the employer’s policy, he or she may still be liable for his or her own negligence and may be responsible for all or part of a plaintiff’s award or settlement. In some cases the employee (the medical assistant) may have to compensate the employer (the doctor) who has paid damages to the claimant.
A medical assistant can either assume that liability, that is paying damages awarded to the claimant in case of a lawsuit him or herself, or buy an insurance policy to transfer that risk. Insurance companies accept the transfer of risk in exchange for the payment of premiums.
Therefore, whether as a student on externship, or as a professional working under a physician, medical assistants should get their own malpractice and professional liability insurance policy! It is really worth the cost and effort; and actually, considering the consequences of a successful lawsuit by an injured patient, malpractice insurance really doesn't cost that much at all!
Analyzing Your Employer’s Policy:
How much you pay for your insurance premium depends on your responsibilities, the location of your practice setting and the limits of liability you choose. If your employer insists that you are to be covered under their policy (rider) and you can't afford to purchase your own personal policy, ask the employer for a copy of the certificate of insurance for your analysis. Here is a checklist of items to use when analyzing your employer’s policy:
If you answered NO to any of these questions, investigate purchasing your own individual policy through one of the many malpractice and professional liability programs available.
Last but not Least: Volunteer Work!
Should you ever decide you want to volunteer, or work at a part-time position, or even do private duty, since many medical assistants also function as home health aides or CNAs in additional to their full-time position, an individual policy covers you while on duty in both positions and under the various circumstances.
If you accept a position and then decide you want to take a position somewhere else, your individual coverage follows you to your new position, even if your previous employer paid the premiums for your coverage. However, realize that your previous employer may request reimbursement!
There even is a way to eliminate gaps in coverage by requesting prior acts coverage. This gives the insured retroactive coverage to cover those events that may have already occurred but have not yet been reported, in other words, it provides coverage for all acts that occurred before the policy was issued! Did you know that???
In Closing -- Remember This:
Protect yourself and your future and strive to function within the parameters of your state licensure laws!
Document, Document, Document!
Complete and careful record keeping is critical to protect the patient, the employer, and yourself. Each aspect of the medical encounter -- personal and family histories; allergies to medications, medications administered and prescribed, physical exam findings, imaging and lab test results, discussions with patients, including specific advice given, procedures performed during course of the visit -- should go in the patient record along with the date and initialed by the provider, nurse, or medical assistant.
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