CorrectCare

Don’t Let Outside Consultations Be a Liability Minefield

By Deana Johnson, JD

You have properly determined that your inmate patient needs an outside neurosurgical consult for a lingering arrest-related injury. You fully document the justification for the consult, the request is granted and the appointment scheduled. On the selected day, the inmate is transported by security and meets with the specialist. You are fully protected from liability, right? Not so fast.

What systems does your institution have in place to schedule any recommended follow-up, monitor to make sure the inmate is transported to any such follow-up appointments and ensure that missed appointments are rescheduled?

Also, since many practitioners in the free world have a poor understanding of realistic limitations on prison medical care, they often make treatment recommendations your department simply cannot comply with, such as metal braces that can be used as weapons or drugs that are not on your formulary. When your department cannot comply with the recommendations, the inference arises that the inmate is not receiving the care recommended by the specialist you elected to send him to.

Case in Point
Dr. V served as the medical director at a large city jail. One of his inmate patients was shot in the wrist during arrest. The result was an inability to straighten four fingers on the dominant hand (claw hand). Dr. V was relieved when the sheriff’s office granted his well-documented and detailed request for an outside consult at the large urban hospital. His optimism was sorely misplaced.

The inmate made it to the initial appointment with the neurosurgeon. The specialist recommended a brace containing metal stabilizers, daily physical therapy and a follow-up appointment in six weeks. The metal brace was not allowed by security. The inmate was approved for only half of the PT sessions. Then, on the day scheduled for the follow-up visit, too many correctional officers called in sick and the inmate missed the appointment.

Dr. V’s luck got worse. His department had systems in place to automatically schedule a new appointment when the first one was missed. When the new appointment date came up, however, the inmate was in court and missed it. The hospital never sent documents to reschedule, and the jail system did not have a mechanism to flag inmates who missed more than one scheduled outside appointment. As a result, this inmate fell through the cracks of both the hospital and jail systems.

By the time the inmate got back to the specialist, 18 months had passed and surgical repair was no longer an option. When the inevitable lawsuit was filed, the inmate’s lawyer did not sue the hospital or the specialist, just Dr. V. The doctor’s well-intentioned, well-documented consultation request forms served as the main exhibits against him at trial. After all, if the consult was so important to the inmate’s well-being, why didn’t the doctor ensure that all of the specialist’s recommendations were met and the follow-up appointments were scheduled and attended? The jury agreed and rendered a verdict for the inmate.

A Better System
As should now be apparent, obtaining permission for an outside consult is just the beginning of the steps necessary to protect yourself and your department from potential liability. Your department needs documented policies that are regularly monitored and followed.

When outside consultations have a medical necessary time parameter, this fact needs to be clearly documented not only in the medical record but in the paperwork provided to security and transport. If you send an inmate down for transport to a hospital ER for evaluation within the hour, the transport team needs to see documentation of this order or the inmate could sit around waiting far longer than you intended.

After the initial appointment with the specialist, the recommending provider from your facility needs to review and initial the specialist’s recommendations. In the likely event that your department cannot comply with all of the requests, there needs to be documented communication with the specialist as well as the resulting consensus for treatment. For instance, if your pharmacy does not stock a particular drug, document an agreement as to an alternative medication. That way, it does not appear your department ignored the recommendations of the specialist after seeking his/her opinion.

A critically important area for concern is follow-up appointments. Your department needs a well-organized system to track inmate appointments and automatically reschedule when they are missed for any reason. You cannot rely upon the consulting physician to alert your institution to the need for follow-up.

In fact, you should consider multiple systems designed to ensure compliance. In addition to automatic rescheduling by a clerk or lower-level provider, the referring provider should periodically review the inmate’s chart until the specialist releases the patient from further care. That way, if a recommendation cannot be carried out or a follow-up appointment has not been scheduled during the time parameters set by the specialist, the provider who requested the consult will be aware of the problem.

Also, lawyers always emphasize the importance of documentation. In this context, the rule applies not only to your department’s documentation of the need for the consult, but also copies of all records and recommendations from the specialist, notes about conversations with the outside provider, printouts of your system for tracking appointments and follow-up, etc. The more closely the documents demonstrate you were tracking the inmate’s care with the specialist, the better off you will be.

Finally, the closer your department can work with security/transport, the less potential for liability. How does your institution’s security staff note transports and reasons for missed transports? Whether by handwritten log or computer, your department needs a printout to place in each inmate’s medical chart. If an inmate is not transported, you will then have a written record justifying the missed appointment. You also can see if security is heeding the medical department’s advice about timing of transports.

An Alternate Ending
Returning to Dr. V, if his department had these systems in place, here is what would have happened:

1. When the neurosurgeon recommended the metal brace, Dr. V would have documented a conversation and institution-appropriate alternative.

2. When the inmate missed the first follow-up due to security officers’ illness, the handwritten page of the transport log showing same would become part of the inmate’s chart.

3. When the inmate missed the second appointment because of court, that handwritten security sheet would be part of his medical record.

4. The second follow-up appointment would be made automatically and documented in the chart.

5. The specialist’s treatment note would evidence the appointment and surgery recommendation.

Those five pieces of paper would have been Dr. V’s trial exhibits and, most likely, the key to his defense verdict.

— About the author:  Deana Johnson, JD, is a partner in the Atlanta branch of Cruser & Mitchell, LLP, Norcross, GA, and represents correctional medical companies and providers. E-mail her at djohnson@cmlawfirm.com.

[This article first appeared in the Winter 2006 issue of CorrectCare.]