Liability issues with patient complaints
Dear medical staff leader:
You know that responding to patient complaints is of the utmost importance. You also know that you should communicate with the patient about his or her complaint and the action, if any, taken by the hospital.
But it is important to consider potential legal issues when responding to a patient's complaint-whether the response is in writing or face-to-face. You should have legal guidance or a training program in place so you know whether the hospital's response could later be used as evidence in a lawsuit against the hospital.
A hospital's written statement to a patient, payer, or other person (including a patient's attorney) admitting liability for a patient's incident or complication could have far-reaching consequences. For example, the person who receives a copy of such a letter could initiate a lawsuit or forward the statement to a newspaper. A copy of the statement could also find its way to government payers, such as Medicare and Medicaid, which paid for services the hospital may have admittedly provided negligently or otherwise improperly.
For purposes of evidence at trial, a court could admit the hospital's written statement as what is called an "admission against interest." Generally, for a statement to constitute an admission of liability against a party to a lawsuit, the statement must be made by a party or an agent or employee of the party.
However, the statements or admissions of some agents or employees may not legally bind the hospital if those persons did not have authority to bind the hospital.
If an unhappy or injured patient later files a lawsuit arising from a particular incident at a hospital, and if the hospital previously wrote the patient a letter admitting the incident was the hospital's fault, the hospital's written statement could be used as evidence against the hospital at trial.
If the hospital had already admitted responsibility for the incident, a judge might find the jury only has to decide damages (how much money the hospital should pay) because the issue of who is responsible has already been decided.
Consider these nine issues when thinking about openly admitting liability:
1. Did an error really happen?
2. Was the error the cause of any harm?
3. Does everyone at the hospital agree with making an admission?
4. What are the chances a lawsuit could be filed by the patient or family?
5. Who is the best person to deliver news to the patient or family?
6. Does the hospital have a written policy on meetings between a patient or his or her family?
7. Have you consulted the hospital's insurance company before making an admission of responsibility?
8. Are you admitting the error out of benevolence/sympathy or as an attempt to negotiate a settlement or compromise?
9. When admitting the error, are you risking disclosure of confidential peer review information?