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Beachin’, Cruisin’, or Just Restin’?

Avoiding Malpractice: Tips for Social Workers to Manage Risk

Beachin’, Cruisin’, or Just Restin’?

Well, it’s that time again here in sunny June, where we go on vacation to enjoy life, get together with friends and loved ones, see the many wonders in our world, and maybe just simply recharge our batteries from our exhaustive work lives.

BUT, leaving work behind is not that simple. Here’s something to ask.

While I am away, am I required to provide client coverage during my absence? If I arranged for client coverage, what may I tell my covering provider about one of my clients who have been in crisis recently?

Top of mind, make sure that you comply with the laws in your state regarding the preservation of the standard of care and transfer of responsibility to another practitioner, notwithstanding being a common associate in the same practice. Ask your attorney for advice and a procedure to follow.

Disclosure of client information, even within the practice, may involve certain written requirements in connection with the disclosure of client information. For example, some states require written consent to release confidences in circumstances where there are more than one client conjointly where each client must execute the waiver, or their respective personal representative executes the waiver if competency issues arise.

Across the Allied Health industry in general, practitioners must refrain from abandoning or neglecting clients. Arrangements for treatment continuation and preservation of therapy standards must be maintained such as when the practitioner is absent for a vacation, training, or sickness. Your attorney can outline your obligations and flexibility. The important point from a litigation defense tactic, which is also an ethical standard of practice, is that you establish acceptable protocols and maintain records that document your preservation of therapy in accordance with your state law. You can point to these records which prove that you fulfilled your duty to treat, in the unfortunate event that State Licensing Board inquiries are filed against you, or a negligence lawsuit is filed against you.

From a legal standpoint, the preservation of the standard of care in your state by arranging continued therapy coverage is critical. If your client is damaged because of a lack of treatment coverage, then the malpractice elements of a negligence lawsuit arise such as duty, breach, and damage. In a lawsuit, both plaintiff and defendant will introduce evidence and testimony, together with expert witness testimony and case law interpretation, to plead their respective case regarding the circumstance of your absence and efforts to implement continued treatment coverage.

We have experienced some claims cases where the practitioner left a recorded voice mail message on the telephone to direct clients to a hospital when away. Is this really sufficient? Probably not in most cases.

As an integral part of good treatment practice, you should arrange for another practitioner to cover your practice while you are away, but make sure that you comply with your state’s disclosure laws. As part of the established protocol, you should also notify your clients a few weeks before you depart, and provide coverage information through your informed consent process. Again consult your state’s laws regarding any timing notice requirements.

Contractual obligations are a more stringent matter to consider and could create liability traps for you. For example, managed care contracts require providers to be available or provide coverage during certain time periods, such as 24 hours/day, 7 days per week. Simply leaving a voice mail message does not suffice because, in virtually all instances, contracts are thoroughly concise in this regard with defined required actions.

You should review any managed care contracts in which you participate along with the provider manuals which are typically made a part thereto, with your attorney. You need to identify your obligations to the other contracting party. If one of your clients is harmed by the lack of therapy coverage, there could also be a breach of contract claim against you from the managed care organization in addition to a malpractice negligence claim.

While HIPAA usually permits discussions between health care providers, it is recommended that you inform your clients regarding who your substitute providers are, and as previously stated, request authorization in writing to speak with them about your treatment. State confidentiality laws vary. However, they outweigh HIPAA’s privacy provisions if they are deemed to be more protective of a client.

The preparation protocol key here works on two locks:

  1. To preserve your peace of mind while on vacation by staying ahead on the negligence mitigation claim curve; and
  2. Ethically and morally, to make sure that your client has continuity of treatment alternatives.

This proactive preparatory action will reduce complaints against you, reduce claims, reduce potential Licensing Board inquiries, and probably most important of all, continue to heal your clients while keeping them happy and engaged.

Published June 2019

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