Medical Malpractice FAQs

FREQUENTLY ASKED QUESTIONS
For Practicing Physicians

Medical Liabilities handle many questions
concerning professional liability, risk management, and
health care law. Below are some of those most frequently
asked by these health care professionals, as well as our lawyerss’ responses.

INFORMED CONSENT
Q. What is informed consent and who is responsible
for procuring it?
A. Informed consent is the legal doctrine affirming a
patient’s right to determine and control his/her own
medical treatment. In essence, it is the discussion that
takes place between the physician who is rendering
care and the patient. It may not be delegated to any
staff member. It is the responsibility of the treating
physician to provide information and explanations
that will assist patients in their decision-making
process. In other words, the patient must be afforded
the opportunity to evaluate adequate information
before making a decision. The treating physician must
advise the patient of the usual risks, benefits, and
alternatives of the proposed treatment or procedure,
including the option of no treatment and, specifically,
the most severe and most frequent risks. Failure to
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procure an adequate informed consent from the
patient can lead both to malpractice and professional
misconduct charges and may also be an indication of
inadequate communication.
The patient’s consent must be voluntary, competent,
and informed. The patient must have capacity, i.e.
the ability to understand the nature and consequences
of the treatment. Although a signed consent form is
helpful in defense, a patient’s signature is not conclusive
evidence of an informed consent discussion. The
signed consent document merely confirms that such
a discussion took place. If there is a witness to the
consent document, he/she only confirms that the
patient has read and understood the document,
appeared to be competent for the purpose of
consent, and has signed the form.
Q. For what procedures should an informed consent
be obtained?
A. Although it is always good practice and important
for a physician to explain to a patient the treatment
he/she is rendering, obtaining an informed consent in
New York State is only statutorily necessary if there is
non-emergency treatment, procedure, or surgery, or,
if the diagnostic procedure involves an invasion or
disruption of the integrity of the body. A physician
is not required to procure an informed consent if the
procedure is an emergency. If a physician is in doubt
as to whether a diagnostic procedure falls into the
second category, it is a good idea to err on the side
of obtaining an informed consent.
Q. What is the legal definition of a minor, and can
minors give informed consent?
A. Generally, the New York statute states that children
under the age of eighteen are minors. And, when
the patient is a minor, consent for his/her medical
treatment must be obtained from the parent or legal
guardian. There are some exceptions: (1) if there is
an emergency and the person is in need of medical
attention, and an attempt to secure consent would
result in delay of treatment which would increase the
risk to a person’s life or health, parental consent is not
necessary; (2) if a person is married or has borne a
child, he/she can give consent for his/her self as well
as for the child; (3) if a person is pregnant or sexually
active, or has questions relating to sexual behavior, the
person can give his/her own consent to the care and
treatment rendered, i.e. abortion, contraception or
treatment of STDs; (4) any person in a parental
relationship to the child (as defined by the statute)
may give consent for the immunization of a child,
unless this person knows the child’s parent objects to
the immunization; (5) a minor may also consent for
treatment or testing in other limited situations, i.e.
for HIV testing and treatment, voluntary out-patient
mental health assessment and treatment under certain
circumstances, and a 17-year old may consent to give
blood; and (6) any medical provider who acts in
good faith, based on the representation by a person
that he/she is eligible to consent, shall be deemed to
have received effective consent.
Q. In addition to having the consent formed signed,
should I write a note in the chart after I have an
informed consent discussion with a patient?
A. Absolutely, yes. The note should be dated and
should state the following, “the risks, benefits, and
alternatives, including no treatment, were discussed
with the patient. The risks discussed included, but
were not limited to . . .” and you list a few of the
most severe and a few of the most frequent risks or
complications. “The patient understood, had all
his/her questions answered, and consented to the
treatment or procedure.” This type of documentation
will confirm and be evidence that a discussion
actually took place with the patient.
by the patient or a family member you may state a
reason for discharge, i.e. there has been a disruption
in the doctor/patient relationship. You should document
if the patient is being discharged for non-compliance,
i.e. “you have been non-compliant with my recommendations
for care and treatment.” If you have
received a request for records from an attorney, have
been sued by the patient, or are merely uncomfortable
in continuing to treat the patient, a reason does not
have to be stated or you may use the relationship
disruption as the reason. Do give the patient a reasonable
amount of time to seek a new physician, e.g. 30 days
from the date of the letter, during which time you
will be available for emergencies only. The letter
should provide resources which will assist the patient
in obtaining a new physician, such as the names and
phone numbers of the county medical society and
local hospitals. We do not recommend that you list
the names of specific physicians.
If you or the patient belongs to an HMO, review
their rules regarding initiation and discontinuance
of the doctor/patient relationship.
Remember, patients in the late stages of pregnancy,
or with urgent or serious medical conditions,
should not be discharged without immediate access
to alternative care.
Q. Must I continue to see a patient whose insurance
I do not accept merely because I have seen the
patient once in the Emergency Department as
the on-call physician?
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THE DOCTOR/PATIENT RELATIONSHIP
Q. When does the doctor/patient relationship
officially begin?
A. Today, it is often unclear when the doctor/patient
relationship begins, and with the advent of managed
care, this issue has become even more complex.
Managed Care Organizations (MCOs) may deem
the doctor/patient relationship to begin when the
physician receives a list of patients who have chosen
the physician as their primary attending. Thus, physicians
must carefully review the lists received and protest
to the MCO those patients the physician does not
wish to accept. The relationship may otherwise be
determined to begin when an appointment has been
made, or when some other mechanism occurs by
which an expectation of care arises, for example when
an on-call physician treats a patient in the Emergency
Department and advises the patient to be seen for a
follow-up visit in his/her office at a defined time.
If a doctor on-call has neither been called in for a
consultation by the Emergency Department physician,
nor treated the patient in the Emergency
Department, the receipt of a courtesy copy of the
Emergency Room record does not create a doctor/
patient relationship. However, hospital bylaws may
require such a follow-up appointment.
Q. How do I discharge a patient from care?
A. To discharge a patient from care, you must notify the
patient in writing. You have the option of giving the
patient a defined reason. If the patient has been noncompliant
with treatment or appointments, or if the
doctor/patient relationship has been disturbed by litigation,
non-payment, or threats and abusive behavior
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A. The answer to this depends both on the patient’s
condition and the hospital by-law requirements. If the
patient’s immediate problem has been resolved, unless
the by-laws require you to provide a follow-up visit,
you are not obligated to see that patient in your
office. However, if the patient is in need of further
care and the problem can be resolved in one or two
office visits, you should probably see the patient and
then discharge him/her from care by letter. If the
patient continues to have an urgent or serious medical
problem which requires continued care, you must be
sure he/she has alternative and uninterrupted treatment
prior to discharging him/her. If you are unable to do
so, then you must complete the course of treatment
for that medical problem, before discharging the
patient from care.
Q. Why is the appearance of the medical record so
important in a malpractice dispute?
A. The medical record is the actual record of treatment
provided to the patient, and its appearance is
extremely important to your defense. It specifically
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describes the complete history, evaluation, diagnosis,
treatment, and care of a patient; and, therefore, it
is of maximum value in terms of its accuracy and
credibility, especially when used in legal proceedings.
Remember, if you didn’t chart it, you didn’t do it. The
medical record should be precise, neat, complete, and
DOCUMENTATION IN THE MEDICAL RECORD
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legible, and it should be written so that any other
doctor who has a reason to pick up the record knows
exactly what has been done for the patient, when it
has been done, and why.
Q. How do I appropriately document the
medical record?
A. Entries in the medical record must be contemporaneous
with treatment and should be written legibly in ink or
transcribed. Be sure to use a consistent style for your
entries. If your records are ever challenged in court,
consistency will impart credibility to your records and
will demonstrate your professionalism in maintaining
them. You must accurately record both positive and
negative findings, and enter the time and date of all
entries, signing each one. All entries should follow
sequentially; do not leave any spaces between them.
If you make an incorrect entry, cross it out by drawing
a single line through it, writing the word error, and
initialing and dating the correction. Do not, under
any circumstances, use white-out or erase an entry.
Both techniques suggest you have something to hide.
Each correction should be made as it happens with an
explanation for the correction to preserve the record’s
integrity. Be sure to record missed appointments and
any failure by the patient to accept or follow
instructions. This type of information will
be helpful in defending a future court action.
Always be sure to record your observations in
an objective and dispassionate manner. The
medical record is not the place to settle disputes,
assign blame, or write derogatory remarks. Such
superfluous entries seem to communicate a lack
of professionalism and may raise doubts about
the record’s overall credibility.
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in each authorization form. Thus, you must insure that
the authorization form is HIPAA compliant and that it
contains all of the required elements.
Although notarization is not mandated by law, you
may as a policy decision require that the signature
on the authorization be notarized. We recommend
comparing the patient’s signature on the release form
to his/her signature in the chart. If the patient is not
the person who signed the authorization, then a
copy of a legal document permitting the designee
to sign the authorization must be also obtained.
These may include, for example, healthcare proxy
documents or court papers appointing the person
as the administrator or executor of a deceased
patient’s estate. In unusual circumstances, such
as those concerning custody or divorce, patient
incompetence, or death, you should contact your
attorney to discuss how to proceed.
Q. What type of information requires specific or special
authorizations to release the medical record?
A. Any medical records containing HIV-related information,
the records from an alcohol or drug treatment
program, and/or psychiatric or mental health facility
records require a specific and special authorization.
The New York State Department of Health HIPAA
compliant HIV authorization is available on the
DOH website. Psychotherapy notes that receive
heightened protection are defined by HIPAA as notes
recorded by a mental health professional documenting
or analyzing the contents of a conversation during a
counseling session. They are particularly protected
Q. How long must I retain medical records?
A. Medical records of non-obstetrical adult patients and
mammograms should be retained for 10 years from
the date of submission of the last claim for payment.
Records of minors, that is persons under the age of
18, must be retained for at least 10 years from the
date of submission of the last claim for payment, or
when the minor reaches the age of 20-1/2, whichever
is longer. Medical records of obstetrical patients must
be retained for the same period as minors. If the birth
was viable, but the child did not survive, the records
must be retained for 10 years from the date of submission
of the last claim for payment. These time
periods are recommended in view of state and federal
statutes and regulations, pertaining to malpractice
and health care offenses.
Q. What documents do I need to release medical
records to someone other than a patient?
A. You must have an authorization or release form signed
by the patient or by an individual legally authorized to
request health care information. The authorization must
be dated and must designate the name of the party who
is releasing the record and to whom the records are to be
released. A release that states “to bearer” is not acceptable.
The authorization or release form must state the
reason for the authorization (“at my request” is sufficient)
and must specify the medical information to be
released (e.g., “all my records”). Each authorization form
must contain an expiration date or event. In addition,
the Health Insurance Portability and Accountability Act
(HIPAA) requires that certain statements be included
RETENTION AND RELEASE OF MEDICAL RECORDS
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under HIPAA only if maintained separately from the
record. Release without authorization is limited to
situations defined under the law, i.e. patient treatment
by the originator of the notes, for mental health
training in programs at the covered entity and for
defense by the covered entity in a legal proceeding
brought by the individual, government investigations
or lawful activities by a medical examiner. Patients are
not entitled to access to psychotherapy notes and may
be denied the opportunity for review of this decision.
Notes not deemed to be psychotherapy notes include
medical prescriptions and monitoring, session times,
modalities and frequency of treatment, summaries
of diagnosis, functional status, treatment plan,
symptoms, prognosis and progress to date. However,
if a physician merely writes a note in the office record
about the patient’s history of mental illness, the use
of psychotropic medications, or the addiction to or
abuse of alcohol or illegal drugs, a special consent to
release records is not required.
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HIV CONFIDENTIALITY
Q. If a patient advises me that he/she has risk factors
and/or has been tested for HIV, may I include
that in my progress notes or the history and
physical notes?
A. Yes, if the patient relays this information as part of
his/her history, or it is medically relevant to his/her
present care and treatment, it may and, in fact,
should be documented. However, that chart then
becomes a protected chart under Article 27F of the
Public Health Law, which governs the confidentiality
of HIV-related information.
Q. May I release records containing HIV information
when I receive a subpoena, particularly if it is a
judicial subpoena?
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A. The HIV law clearly requires the release of records
only with a special HIV consent form or a court
order, issued only after a hearing, at which time the
patient has had an opportunity to contest the release.
A subpoena is not sufficient.
Q. Does even a negative HIV test result require specific
protection of the chart?
A. Yes, the fact that an HIV test has been done, regardless
of the result, raises the possibility that the patient
has risk factors for HIV. The patient may sustain
harm if this information is released inappropriately.
Q. If a patient tells me in the Emergency Department
(ED) or prior to surgery that he/she is HIV positive,
may I inform the ED or the operating room staff
who will be involved in the patient’s care?
A. You may not tell the staff if the sole purpose of
informing them is infection control or having them
take extra precautions. You may only tell the staff
if the disclosure is necessary for the patient’s care
and treatment.
THE “GOOD SAMARITAN” &
“DO NOT RESUSCITATE (DNR)” LAWS
Q. Does the Good Samaritan Law protect me from
being sued?
A. No, the Good Samaritan Law does not protect you
from being sued if you are in your office or a hospital.
It provides that any licensed physician who voluntarily,
without expectations of receiving monetary compensation,
renders first aid or emergency treatment at the scene
of an accident or other emergency which occurs in
a location other than the doctor’s office, a hospital,
or other health care facility, to a person who is
unconscious, ill, or injured shall not be liable for
damages. This protection from liability, however,
does not apply if the doctor is grossly negligent.
Q. If a patient has a DNR order, must I write another
order saying “Do not intubate?”
A. A DNR order can specify what resuscitative efforts a
patient wants. For example, the patient may desire
CPR and certain medications but does not want to
be intubated. It is very important to carefully discuss
with the patient, family, surrogate, or proxy agent
exactly what a DNR order means and what the
patient wants. The competent patient and/or family
should be advised that if a DNR order is issued, the
following actions will not be taken if the patient
suffers a cardiac or respiratory arrest. They include:
● mouth-to-mouth resuscitation
● external chest compression
● electric shock
● insertion of a tube to open the patient’s airway
● injection of medication into the heart, or
● open chest heart message.
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THE NATIONAL PRACTITIONER DATA BANK
Q. I am a co-defendant in a malpractice lawsuit. If my
insurer pays money to satisfy a settlement or judgment
on behalf of my co-defendants, but does not make a
payment on my behalf, will I still be reported to the
Data Bank?
A. No, the National Practitioner Data Bank only
requires your insurer to report indemnity payments
made on your behalf as a result of a written claim.
Q. Is an incorporated solo practitioner considered to be
an entity for purposes of reporting to the Data Bank
a payment he/she made?
A. No, regardless of the form under which you practice
as a solo practitioner (for example, you may be operating
as a P.C.), individual practitioners are no longer
required to report to the Data Bank payments they
make on their own behalf personally out of pocket.
Q. Must I permit HMOs, other insurers, and hospitals
to query the National Practitioner Data Bank?
A. HMOs and group medical practices qualifying as
entities under the Data Bank plan because of their
professional and formal peer review activity may
query the Data Bank. Hospitals must query the Data
Bank when a physician, dentist, or other qualified
health care practitioner applies for a position on
the medical staff or applies for a change in clinical
privileges. Hospitals must also query the Data Bank
when re-credentialing members of its medical staff.
The initial inquiry must be done no later than two
years after the opening of the Data Bank and every
two years thereafter. An insurance carrier cannot
request information from the Data Bank.
Q. Will I be notified by the Data Bank if an inquiry
about me is made?
A. Practitioners can receive copies of their complete file
at any time, free of charge, by submitting a Request
for Information Form to the Data Bank. Health
care practitioners are not automatically notified
when a report is released on them in response to an
inquiry, but may periodically obtain this information
by requesting a copy of their Data Bank file.
Practitioners are only notified when they are the
subject of a report received by the Data Bank.
Q. Is there a minimum threshold of loss payment that
does not require a report by my carrier for a settlement
made in my behalf?
A. No. All payments made after September 1990 on behalf
of a practitioner are reportable to the Data Bank.
DIAGNOSTIC TEST FOLLOW-UP
One of the most frequent causes of medical
malpractice litigation is the failure to diagnose
life-threatening diseases, such as cancer. To avoid
malpractice litigation, it is essential that you
implement a procedure in your office to monitor
the performance of requisite laboratory tests, insure
patients’ appointments with consultants are kept, and
record that patients’ test results have been received
and reviewed by you. Unless such a procedure is
implemented, you risk liability because the patient
did not receive appropriate and necessary follow-up
care and treatment.
Q. What is my responsibility or liability if a patient fails
to have a laboratory or radiological test performed
or to keep an appointment with a specialist?
A. There is a duty imposed upon the attending doctor
to follow up on all tests and consultations he/she
has ordered. The failure to do so could lead to a
delay in diagnosis or misdiagnosis of a serious disease.
The physician should follow-up first by telephoning
the patient or the consultant’s office, and
then by writing a letter to the patient. These efforts
should be documented in the chart.
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THE HEALTH CARE PROXY LAW
Q. If an incompetent patient has a living will and a
designated proxy agent, and the agent appears to
be making decisions that are in contravention of
the patient’s stated wishes, who prevails?
A. If you feel the proxy agent is not acting in the
patient’s best interest, you may request that a court
remove the agent and/or override the agent’s decisions
which were made in bad faith. You should first
attempt to meet with the proxy agent, either alone or
with the hospital’s ethics committee, to discuss the
matter and attempt to resolve any disputes, prior to
going to court.
Q. If a patient signs an authorization solely for release
of his/her records, am I at liberty to speak to his/her
attorney or to the defense counsel?
A. One area of concern for physicians and their attorneys
involves requests from patients’ attorneys for records,
especially when the reason for the request is not made
clear. On occasion you may receive a call from an
attorney requesting an appointment to discuss your
care of a patient, or to have you interpret your notes
in the patient’s medical record, which the attorney
already has in his possession. Even if the attorney
assures you that you will not be sued, or that your
conversation is off the record, exercise caution and
immediately contact your own attorney before
agreeing to speak with him/her. Frequently these
statements are simply not true. Further, it should be
noted that an authorization to release records requires
only that you release the patient’s records. It does not
sanction discussion with any attorney. If an attorney
wishes to question you about a patient’s care, the
appropriate place to do so is at an Examination
Before Trial (EBT) or deposition, where you may
have counsel present for your protection. If you have
been retained to be an expert witness for a plaintiff ’s
attorney, you should request a specific and HIPAA
compliant release from the patient, which will permit
you to discuss all aspects of his/her care, treatment,
diagnosis, and prognosis with that attorney.

HANDLING REQUESTS FROM LAWYERS
Q. If a patient’s attorney asks me to provide a narrative
summary of my care or sends me written questions
for my response, must I agree to do so?
A. No. The best way to handle such a request is to
obtain from the patient a properly signed and
dated authorization allowing the attorney making
the request to obtain access to the patient’s medical
information. You should advise the attorney that
your records speak for themselves. In addition,
you are not obligated to be an expert witness for
a patient you have not treated.
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A. The general rule is that an addendum should be
timely and should contain information relevant and
necessary to the patient’s present and/or future care and
treatment. Never write an addendum weeks or months
after a patient has died or after an attorney has requested
records. Any addendum that does not meet these criteria
may be considered self-serving or even deemed an
alteration of the record. If it is necessary to write an
addendum to a patient’s record, be sure to indicate the
date of and reason for the supplementary information.
Remember that accurate recordkeeping is vital, not only
in the course of providing good patient care, but also
because carefully maintained records offer a credible and
accurate defense in court. Any record that appears to
have been altered for the purpose of covering up an
error, or to improve the record for litigation, completely
lacks credibility.
Q. If a physician extender (e.g. such as a nurse
practitioner), who has been hired by the hospital
or by me, injures a patient, can I be held liable
for his/her acts, even if I have not seen the patient?
A. There is a duty imposed upon you by law to provide
supervision to nurse practitioners and other physician
extenders, albeit, not necessarily on the premises. You
may also be found vicariously liable for the acts of
that individual, merely because of your employer/
employee and/or supervisory relationship. Your
professional liability policy should have specific
supervisory requirements for physician extenders
who are your employees. Consult with your attorney
regarding the legal requirements for supervision.
The information contained herein is provided to educate the reader.
It is intended for general information and risk management purposes
only and is not, nor is it intended to be, legal advice.
HOSPITAL-RELATED ISSUES
Q. Must I comply when hospital department chairpersons,
medical society grievance committees, and/or health
insurers ask me to put in writing an explanation
about a serious complication or a response to a
complaint about a patient’s care. This request may
be in addition to, or instead of, the case being
discussed at a quality assurance meeting.
A. There are two laws in New York State which protect
the testimony and minutes of quality assurance
discussions—these are Section 6527(3) of the
Education Law and Section 2805-m of the Public
Health Law. Both laws protect the discussions of
others, but exempt from protection, and, in fact,
permit disclosure of, your testimony or discussions
when you are, or become, a defendant in a suit
involving a patient’s care. Therefore, when a serious
event occurs and a patient is injured or dies, you must
be very careful about responding to such requests. We
recommend calling your attorney before you respond.
A case in the New York State Courts, Appellate
Division Fourth Department, held that a letter written
by a physician to a medical quality assurance review
committee, at the request of the hospital’s Chief of
Staff, was not protected from disclosure. In other
words, the statute was not intended to protect persons
whose care and conduct are the subject of review.
This applies to both verbal and written statements
given by you to a quality assurance committee or
other such reviewers.
Q. Should I write an addendum to hospital or office
medical records many days, weeks, or months after a
patient has been injured or died? Sometimes I have
been requested to do so by hospital personnel, or
I have forgotten to document certain important
information prior to a patient’s injury or death.