In the typical hospital setting, the Risk Manager wears many hats – and not all of them fit that well. They are usually the first line of defense when a medical malpractice lawsuit is filed, and often have no option but to ship the suit to outside counsel and then wait to see what happens. This allows no time to review the facts or develop the proper response to the allegations, and certainly no opportunity to see if earlier action might have avoided the lawsuit all together.
Prior to coming in house to oversee claims and litigation strategy with Stanford Health Care, I spent 25 years as a defense attorney specializing in representing hospitals and medical providers related to claims for medical malpractice. My usual first contact with a file was when the risk manager of a particular institution would call me and state that they’d received the notice of impending litigation, or had been served with the actual complaint filed with the court. The typical Risk Manager has neither the time nor resources to actively investigate claims before they went into litigation.
This invariably left both the medical provider, and its legal counsel, playing catch up. The patient’s attorney had up to one year to review his or her client’s claims, obtain and review the medical records, and determine a strategy to follow in pursuing the case. Also, after a year, key witnesses may have moved away, passed away, or had their memories fade over that time, leaving the medical provider trying to re-create the circumstances related to the care.
Avoid the Stumbling Blocks
All of these potential stumbling blocks might be avoided if the medical provider dedicates the resources and time, and has the institutional desire to review potential claims early, before lawyers became involved. This requires most importantly, that all physicians, nurses, staff and others within the institution be encouraged to bring medical treatment concerns to the attention of risk management at a very early stage.
A thorough and timely review of the medical issues can often lead to discussions with the patient that result in a better understanding of the risks and realities of medical care, and a reduction in a patient finding fault and bringing suit. Early review can lead to better institutional patient and safety practices, and, therefore, help increase the quality of care not only for the specific patient, but for other patients as well. Early assessment can lead the medical provider to consider, if appropriate, early settlement discussions with the patient and/or their representative.
Early Assessment is Best
Regardless of the question of merit in a particular claim, early review of the medicine and facts can help document witness memories and provide for proper written notations in both the medical records and legal files. If the matter is likely to proceed to litigation regardless of any other action by the medical provider, the early assessment, and, if needed, retention of legal counsel, can result in the medical provider’s counsel being fully prepared which can positively impact the resolution of the suit.
In summary, early acknowledgment and investigation of medical claims can result in better quality of both patient care and legal defense. Simply shipping the matter out to an attorney long after the actual events took place is not the best way to respond to a medical/legal issue. A few hours or days of early review and intervention in such an issue could save the medical provider months or years of painful litigation.
Brad currently serves as the Vice President of Claims and Litigation Strategy for The Risk Authority and as Sr. Director of Claims and Litigation Strategy for the Stanford University Medical Network. He has over 32 years of medical malpractice litigation and claims management experience representing hospitals, doctors and nurses both as an in-house attorney and trial lawyer. Brad is a graduate of California State University, Hayward, with a degree in Psychology and from Pepperdine University School of Law where he graduated cum laude.