Vol. 14 •Issue 5 • Page 20
Can MTs be Taken to Court?
What legal ramifications may a transcriptionist face?
Today, almost every physician has malpractice insurance; does this mean every health care professional should have insurance too?
There’s no question that a medical transcriptionist’s job is important to the entire health care system. But could a medical transcriptionist (MT) be held legally responsible for a patient’s injuries due to inaccurate reporting? Should MTs look into buying insurance to protect themselves?
Yes, according to Robert A. Zielke, attorney and counselor at law. MTs can be sued for negligent reporting, Zielke said at his American Association for Medial Transcription (AAMT) 2003 session, and therefore he feels that it’s extremely necessary for MTs to purchase insurance.
He explained that people carry insurance to “1) protect the people we may harm, and 2) to protect us, so we don’t have to come up with the finances to take care of our responsibilities.
“I predict you’re going to see a lot more MTs looked at and scrutinized, and you’re going to see a lot more claims against MTs in the future. MTs are professionals and if they cause someone harm—the law says they are to be held accountable for their negligent actions,” Zielke stated.
But will a case against an MT really go to court?
To Insure or Not to Insure, That Is the Question
Skip Conover, president and founder of CBay Systems, is also a lawyer and stated, “Sure, there’s a contract obligation to perform well and if not a written contract, there’s certainly an implicit obligation to perform to 98 on AAMT Scale of 100.”
If anyone is not performing according to their contract then they’re at risk of being civilly sued. But realistically, Conover hasn’t heard of an MT being sued.
“I’ve been in the industry for 13 years, and I’ve always taken the position that MTs are preparing a document for the physician to sign. We stand behind our work and will correct it if the doctor says something is incorrect. But when the doctor signs it, it’s the doctor’s responsibility,” Conover stated.
George B. Breen, an associate in the National Health Law Practice in Epstein, Becker and Green’s Washington, DC, office, said that he’s never seen a case in which an MT has been found liable, but it doesn’t mean there’s not one out there.
Zielke stands behind his statement in reference to negligence. “It is an unintentional failure to act as a reasonably prudent transcriptionist would act,” he said.
He wanted MTs to know that yes, they can be sued, and yes, there is the chance they can be held liable for negligent reporting. He emphasized that this is not to scare MTs, but to prepare them for what’s to come.
Michael Miller, vice president of Dolbey, pointed out that a physician is a trained and licensed professional approved by the health care insurance company to provide and document care to the patient. “They are ultimately responsible,” he stated.
“Professional liability insurance is not needed on the part of the MT, who at this time does not need any professional certification or licensure to perform transcription,” commented Carole J. Gilbert, RHIT, of Gilbert Medical Transcription Service.
Miller agrees, but also brings up another valid point. “MTs could be taken to court by the doctor, but not by the patient. The patient doesn’t have a direct line of liability to the transcriptionist; they only have it to the doctor. Certainly there are differing opinions on each side of the issue, but when it comes down to it—the transcriptionist isn’t required to sign off on his/her work, the physician is.”
So it’s pretty much understood that MTs can’t be held liable by the patient, but that doesn’t mean they’re home free. Breen stated that “there could be a case where someone is able to establish that the MT acted negligently.”
And that someone could very well be a physician.
Who’s Suing Who?
Physicians can sue MTs, and Zielke thinks that it’s going to start happening more often than usual because of blame shifting and a certain law.
“Anyone who is blamed wants to shift the blame. So doctors and allied health professionals who dictate a lot of reports–if they’re held liable for an error in their transcription report–they’re going to pass the blame down the line.”
Zielke explained a law that he feels is cause for concern.
“A lot of states have joint and several liability laws. It’s a key factor when looking at MTs. It means that if a court finds the MT 50 percent responsible, the doctor 40 percent responsible and the hospital 10 percent responsible for a patient’s injuries, the patient will collect the entire damage award. It doesn’t matter if the MT doesn’t have insurance; the victim can still collect the entire amount due to him/her through the doctor’s insurance. And then the doctor will sue the MT for contribution.”
But again, one has to take into account the probability of a court finding an MT responsible.
“There are basically no doctors without malpractice insurance. These doctor’s insurance carriers are going to look to recover money for any claims they pay for, from any source they can,” Zielke assured.
But that doesn’t mean the physicians will win their case.
Julianne Weight, CEO of AlphaBest, feels that “if a dictating physician or facility wanted to pass some of that responsibility on to transcription, mandatory dictation lessons should be instituted for physicians and a steep rate increase, as well as penalties for not meeting dictation standards. And in my opinion, it would be foolish for a doctor to try this, because it’s admitting that a legal document was signed without verifying its accuracy, which only shows further negligence—not a great position to be operating from in a medical-malpractice case.
“In my opinion, an MT buying insurance is the same as admitting that the MT has responsibility or is willing to take responsibility for the accuracy of the document—something of a red cape, if you will. So, no I don’t think MTs should get insurance.”
Factoring in Rationalism
“We need to keep things in perspective. We’ve got 350,000 MTs in the United States and I know of no case, not one,” Conover assured.
Zielke argues that although his search for appellate cases, which are cases that go up on appeal, uncovered nothing—he does know through confidential claim sources that there have been claims against MTs. “And there have been pay outs.”
But Miller perceives the entire issue as an attention getter. “If someone were to say the transcriptionist was liable, that would mean future speech products would be in the middle. Does that mean the doctor is going to start suing the speech recognition company for not checking their work?”
Zielke explains that physicians should be able to rely on other professionals to support them. Even if the document was signed, Zielke feels that the physician can explain that he or she was merely relying on a professional. “Physicians rely on MTs, especially if they’re certified, just like they rely on the lab to give accurate lab results. There’s no difference. The physician doesn’t go verify that the lab ran the test correctly.”
But Miller gave an appropriate example as well. “When the president signs a bill for a new law and if there’s a misspelling that got overlooked before he signed the bill, is someone going to go sue his secretary? No.”
Weight also makes a good point in questioning the process used to pick the transcription service. “Pay rates for transcription services and transcriptionists have been stagnant or declining since I started in this business in 1983. When cost is the most important factor in who gets contracted for medical transcription service, does anyone really expect that they’ll get 99.8 percent accuracy?” she questions.
What’s the Right Thing to Do?
What if a medical transcriptionist finds a mistake within a doctor’s dictation? What is the MT suppose to do amidst all this confusion?
Miller wonders, “Do physicians depend on transcriptionists to help pick up the slack?” The physician in some cases counts on the transcriptionist to catch things. So if the doctor dictated wrong, is the transcriptionist wrong for putting it exactly that way in the record?
“They won’t necessarily correct them; they’ll highlight things for the physician to review. But you can’t tell MTs to not completely and verbosely interpret dictation one way and then not allow any room for error. It’s hypocritical,” explained Miller.
Gilbert also agrees that it’s the MT’s responsibility to flag reports that have dictation discrepancies or have inaudible or indistinguishable sections. “But beyond that, it’s the dictator who attests to the report’s accuracy by signing off on it,” she assures.
Tricia Cassidy as an assistant editor at ADVANCE.