NEGLIGENCE is spelled more than simply as MALPRACTICE

Avoiding Malpractice: Tips for Social Workers to Manage Risk

NEGLIGENCE is spelled more than simply as MALPRACTICE

You are an expert in your profession. As such, you are held to that specific standard of care for which you are licensed. This is the practitioner’s therapy side of the delivery service model. As a provider of services, you are also held accountable for a series of non-therapeutic responsibilities associated with your practice. Examples include liability for patient and landlord property, patient information, and physical safety with whom you interact.

Negligence includes malpractice and many other liability perils. Malpractice is the most common among practitioners. The elements of negligence are Duty, Breach, Proximate Cause, and Damage.

The overall malpractice characteristics include:

  • Failure to provide the required standard of care commensurate with your particular licensed professional occupation;
  • This failure results in damage, injury, or death.
  • Any healthcare professional can be sued for malpractice, no matter how trivial the lawsuit complaint appears.

A patient’s lawyer can define malpractice subjectively. A lawsuit can merely refer to the patient’s perception of wrongdoing without supporting factual evidence. If the patient merely feels anything relating to the scope of treatment or interaction with the healthcare professional provider was carried out incorrectly or not carried out at all, it is sufficient grounds to support a lawsuit.

The following are the required elements of negligence and are described in the context of treatment that festers into a malpractice lawsuit. The plaintiff (patient who brings the lawsuit against you through counsel) must prove each element in the lawsuit. In any event and regardless of culpability, the defendant (you or your insurance carrier insuring you), must pay the legal fees to dispute the charges and defend you until the lawsuit ends, either at trial or through a settlement.

DUTY

This is created when the healthcare professional agrees to accept the patient and establishes the course of treatment with the professional relationship between the two parties. The duty is to create, maintain, and deliver professional services within the occupationally defined Standard of Care commensurate with that specific healthcare professional’s occupation.

BREACH

This is the healthcare professional’s failure, or as often referred to in lawsuits as dereliction of duty, to meet the standard of care and to apply the appropriate diagnostic, preventative, and therapeutic measures.

PROXIMATE CAUSE

This specifically links wrongful actions and/or non-actions arising from the healthcare professional that were directly connected to the outcome or resulting change. The key element is causation, whereby the damage arose directly from the professional’s practice behavior. In other words, “But For” the action or inaction of the healthcare professional, there would not have been damage. There is a distinction with the word cause. “Proximate Cause” is a legal connection of blame whereby the professional has some probability of contributory negligence to the damage arising from the duty breach. This is debatable throughout the lawsuit and is subjective. Often times when indemnity settlements are reached, a portion of the damage is blamed on the healthcare professional, and damage claims are paid in that proportion plus legal fees. “Cause in Fact” is a stricter measure and factually links the duty breach committed by the healthcare professional to the patient damage. This is the “smoking gun” analogy where there is absolutely no doubt of cause, and who is responsible for the damages.

DAMAGE

This is the list of harms to the patient. These include economic (hard) and non-economic (soft) categories. They can by physical, emotional, and/or financial. The main categories are Medical such as lost wages, treatment costs, and even other losses including first party and third party costs; and Pain & Suffering causing social and psychological harm.

Negligence lawsuits have two expensive components: indemnity and legal fees to defend. They do not have to be practice or therapy related. Damages arising from negligence can be your patient’s stolen handbag in your office or in a hotel conference room in which you are conducting a session, or a stolen laptop or cell phone that has your patient phone numbers. Even a fire in your office causing property damage to your landlord, a slip & fall by a visitor to your office, or a dog bite in your office makes you potentially negligent.

It is important to inventory your practice’s risk management safeguards. Think of it as concentric circles where at the center is your practice is your therapy practice model. This is focused on malpractice coverage such as Professional Liability insurance. Next consider the venue of practice. This is when General Liability insurance is very important to protect you from a variety of liability perils. Third, consider your risks arising from lost or stolen patient information and Cyber Liability arising from your third party data service providers, your warehouse or mover holding your records, and your computer devices and phones containing patient phone numbers and other information.

The NASW RRG insurance plans provide insurance protection solutions for you in all of these areas … Professional Liability, General Liability, Cyber Liability, and Cyber Device Liability.

There is no doubt that social work is a noble profession with implicit values of service, social justice, human dignity, integrity, and clinical competence. Despite all of the sincere devotion provided by social workers, and whether or not they are employed with an Agency, government, by a company, or as an individual, they must thoroughly evaluate their risks.

You must review your own insurance policies and assess your risks to properly identify the gaps existing in your insurance coverage. The social worker is a target when a lawsuit is filed. If you do not have the proper insurance coverage, you are responsible for the legal defense costs, regardless of damages, and of course, all proven damages linked to you.

Published February 2016

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