Duties and responsibilities
Common medico-legal questions asked by members
Originally published August 2013
Physicians attending CMPA educational programs have the opportunity to speak directly with physicians and legal experts on how to manage the medico-legal difficulties in their practices. Program attendees participate in discussions, learn from experiences reported to the CMPA and from the Association's closed legal cases, and get advice on managing risk in both office and hospital practices.
The educational programs, which are evidence-based and open to all members, promote safer care and reduce medico-legal risk in practice. They are CME accredited full-day symposia and evening regional conferences and are held across Canada in both official languages.
Questions on any medico-legal topic are welcomed and encouraged during the programs.
The following sample of questions from members attending recent conferences includes questions asked at almost every education presentation. The answers, in key point form, were provided by the panel of medico-legal experts.
QUESTION: Providing care when it is difficult to transfer a patient
How would the courts or medical regulatory authority (College) likely view the care provided by an attending physician when there is a high-risk situation in a rural community, the necessary specialist is an hour or perhaps hours away (and there is significant risk associated with transferring), and the current attending physician feels the service necessary for this patient is outside of his or her skill set?
Physicians may be criticized if they knowingly provide care outside their level of expertise when alternatives are available. It is wise for physicians to ask themselves whether their personal level of skill and training is adequate for the particular clinical situation as it now exists. A physician has an obligation to refer the patient or to obtain consultation when unable to diagnose the patient's condition, when the patient is not responding to treatment, or when the required treatment is beyond the competence or experience of the physician.
However, whether in a rural or city setting, the clinical condition of any patient may evolve rapidly and in an unexpected manner. As a result, unusual or life threatening circumstances, or the lack of immediately required resources, may require physicians, on occasion, to provide emergent care for a particular patient that is beyond their usual clinical skills. There may be an opportunity to obtain some guidance on what should clinically be done by contacting an appropriate specialist by telephone or other means.
Although the CMPA cannot speak for the courts or Colleges, these bodies normally assess if a physician acted reasonably in the circumstances with the best interests of the patient in mind. The nature of the discussions with the patient and family, and careful documentation of these in the medical record, are very important.
QUESTION: Responsibility for non-compliance to recommended tests or follow-up
How much responsibility does a physician have when a patient fails to undergo further diagnostic testing or misses an appointment for follow-up? Is the physician responsible for contacting the patient?
It is important to follow up on test results, in general. Failure to follow up may result in harm to patients and also lead to medico-legal difficulties. Although this is a frequent source of frustration for physicians, the courts and Colleges have been very clear that the ordering physician is generally responsible for the timely and appropriate follow-up of the results of investigations.
A further challenge occurs when patients cancel a test, fail to show up for a test that was ordered, or do not return for follow-up. Having a discussion with patients about why an investigative test has been ordered, for example to rule out a cancer, or explaining why follow-up is needed, allows patients to appreciate the importance of the test to their personal clinical situation and should increase compliance. This discussion should be documented in the medical record.
Physicians ordering investigations should make reasonable efforts to provide closer follow-up of patients with unstable, urgent, and potentially life-threatening illnesses, in addition to those presenting with serious clinical symptoms or signs. Physicians should document their attempts to contact the patient.
QUESTION: Documentation by trainees
How should a staff (supervising) physician correct wrong information entered by a medical student or resident in a patient's medical record in a way that is defensible in a court of law?
The medical record supports the ongoing care of the patient by all providers. The record is also a legal document that can serve as evidence of that care.
In the case of incorrect entries in the medical record made by a trainee under a physician's supervision, the supervising physician should correct any misleading information. If using a paper medical record, physicians should not cross out the original entries. Instead, they should add an additional note, clearly labeled as being from the supervising staff, then date and sign it. Physicians should identify the misleading information and the reason for making changes, and insert the correct information. An asterisk or flag may be added to the original entries to alert others that better information is available in the staff note. An electronic medical record should have an audit function that will indicate who made any entries or changes and when. If the electronic record allows deletion, it should store and permit access to the deleted text.
This situation is a good opportunity to teach the trainee about documenting in the medical record.