Your ASC is Being Sued … What Do You Do?

Your ASC is Being Sued ... What Do You Do?

You have just been notified that your ambulatory surgery center (ASC) is being sued — now what do you do?

Fortunately, ASCs are sued infrequently, but when it does happen it can be very unnerving. The purpose of this article is to explain how lawsuits happen and to describe the things you should and should not do to avoid making a bad situation worse.

While the process of initiating a lawsuit varies from state to state, there are some basic procedures that are common in most cases. It all begins when a patient believes that he or she has been injured because of a healthcare provider’s treatment — or lack of treatment — and then seeks the advice of an attorney. If the attorney decides that there is a meritorious claim, he or she will file the paperwork (complaint) on behalf of the patient (plaintiff) with the court. After the complaint is filed, a notice (summons or writ) is sent to the healthcare provider as notification that a legal action has been filed. The healthcare provider (defendant) is then required to respond in the timeframe and manner indicated in the summons.

In order to prevail, the plaintiff must prove all the elements of the lawsuit — duty, breach, causation, and damages. First, he or she must prove that the healthcare provider had a duty to him or her, and that that duty was not met. In medical malpractice cases this means that the ASC had a responsibility to provide services within the standard of care and did not. Common allegations against ASCs include failure to appropriately monitor, lack of informed consent, or violation of the facility’s policies. The plaintiff must then prove that this breach of the standard of care caused the alleged injury. The final element is proof of the alleged damages.

If you receive a summons or complaint, immediately check with your risk manager or insurance carrier for instructions on handling the summons or complaint. Individual states have varying rules that determine the time and manner of the response that is required.

Things you should do:

• Make a written note of the date, time, and name of the individual who delivered the summons or complaint to you.
• Call your insurance company and/or notify your risk manager immediately. Be sure to have your policy number available when you call.
• Determine who your insurance company claim contact will be and be sure you have the correct contact information. Also ascertain the name and contact information of the defense attorney who will be handling the case.
• Provide the original summons and complaint to the insurer. Keep a copy for your records.
• Create a file separate from the medical record for the complaint and all correspondence regarding the lawsuit.
• Make certain that the medical record is complete and in order. Sequester the entire record to protect it from unauthorized access or disclosure.
• Ask your insurance carrier or legal counsel for advice before making copies of medical records, releasing the records, or creating any new documents.
• If copies of the record are requested, make sure that the patient has signed a medical records release form. Remember, information relating to HIV, drug and alcohol, or psychiatric treatment often requires that a separate and specific release be signed.
• Release only copies of medical records, X-rays, and other tests, never the originals.
• Discuss the case only with your insurance company or your attorney. Ask their advice about informing other healthcare providers — such as surgeons or anesthesiologists — who are named in the summons or complaint.
• Advise others involved in the case — including physicians — not to discuss the case.

Things to avoid:

• Never make any alterations to the patient’s medical record after a claim or lawsuit has been filed. This may be portrayed as a cover-up by the plaintiff’s attorney, and may also be a criminal offense.
• Don’t contact or speak with the patient or the patient’s family regarding the lawsuit.
• Don’t discuss the case with anyone, including coworkers. Such conversations may be discoverable.
• Never talk about the case with the plaintiff’s attorney; only discuss the case with your insurer’s claim representative and your defense counsel.
• Don’t exaggerate or understate the facts when you discuss the case with your insurance company or your defense counsel. Accurate, objective information is vital to a successful resolution.
• Don’t panic! The more objectively you deal with the claim, the more help you will be to your insurance carrier and defense counsel.

The best way for ASCs to avoid being sued is to provide quality, safe care and maintain open communication with patients. However, should your ASC be sued, taking proactive action and avoiding missteps is key to minimizing your risk.