CMSA Today - Issue 6, 2011 - (Page 27)
Case Management and the Law
Deploying Case Management Programs to Reduce Legal Risks
ith all the hoopla surrounding health care reform, including the recent focus on accountable care organizations (ACOs), health exchanges, the use of electronic health records, and other issues, something else important is happening. Anyone who has spent time in the utilization and case management ﬁelds knows that when case managers “coordinate” the care of chronically-ill patients, good things happen including improved clinical and ﬁnancial outcomes. This is why case management is now one of the centerpieces of both federal and state reform eﬀorts. But there is another advantage worth talking about – the ability of care management programs to reduce legal risk.
BY GARRY CARNEAL, JD, MA
TRADITIONAL LIABILITY EXPOSURE
When health plan administrators, providers and others make decisions impacting patient care, either from a clinical or beneﬁts perspective, liability exposure points do emerge for anybody inﬂuencing the course of a patient’s treatment plan, especially when something negative happens. This vulnerability is illustrated by two early utilization review cases. In Wickline v. State of California1 and Wilson v. Blue Cross Blue Shield of California2, health care executives and providers alike were put on notice that they could be held accountable under an array of legal theories, including negligence, breach of contract, bad faith, fraud, and other legal actions. Simply put, medical management decisions are a shared responsibility between the patient, attending provider, payer, and others. The potential exposure of any case manager to a legal claim is dependent upon a number of factors, including the nature of the care management program, where they work, what decisions they made, what other providers or other individuals were involved, what federal and state laws apply, and how evidenced-based clinical protocols were followed, for example.
caused the patient actual harm. Integrated care management programs can provide a zone of legal protection for case managers (or the program sponsors) in several meaningful ways, which include: • Advancing a continuum of care treatment approach that relies on a more comprehensive analysis of the patient’s needs and not simply on a more linear and episodic UR-style assessment process • Applying evidenced-based protocols utilizing a wider array of specialty guidelines and clinical pathways that are less dependent upon actuarial-based guidelines • Leveraging data and analytical insights that use a more dynamic information technology platform, ensuring that the right information gets to the right person at the right time
Integrated care management programs can provide a zone of legal protection for case managers (or the program sponsors) in several meaningful ways.
Case managers must do their best to exercise good judgment that supports their respective clinical and legal duties of care. However, no individual, system, or program is perfect, so vigilance and trouble-shooting will remain key attributes of a successful case manager. Of course, the standard of care for most professionals does increase over time as they have access to more knowledge and resources. The low tolerance for errors in the aviation industry is just one example. Integrated care management programs, along with other patient safety initiatives, can be an eﬀective tool to limit legal liability risks, along with optimizing patient care.
MOVING TO INTEGRATED CARE MANAGEMENT
The successful implementation of an integrated care management program should reduce certain types of legal risk when compared to more traditional utilization review (UR) programs. For instance, most negligence actions require the plaintiﬀ to establish that a “duty of care” was breached and that the “acts” or “inaction” of the defendant
About the Author
Garry Carneal, JD, MA, is president and CEO of Schooner Healthcare Services. Send comments of gcarneal@ schoonerhealth.com.
239 Cal. Rptr. 810 (Cal. App. 1986) 271 Cal. Rptr. 876 (Cal. App. 1990)
Issue 6 • 2011
Table of Contents for the Digital Edition of CMSA Today - Issue 6, 2011
PRESIDENT’S LETTER CASE MANAGEMENT WITHOUT BORDERS: Promoting a Global View and a Universal Understanding
Canadian Perspective A Systems Level Approach to Safe and Effective Care
South African Perspective Hospital to Home – Comparative View of Transitions of Care
Cuban Perspective From Cuba to Milwaukee: Community-Oriented Health Care
VIEW FROM CAPITOL HILL PPC’s Busy Schedule Equates to Changes on the Health Care Front
ETHICS CASEBOOK Advocacy in Case Management: What Are the Limits?
MENTORING MATTERS Improving the Mentorship Role through Feedback This Is a Marathon – Not a Sprint
CASE MANAGEMENT AND THE LAW Deploying Case Management Programs to Reduce Legal Risks
CMSA Today - Issue 6, 2011