The Pitfall of Practices and Procedures

Written by: Sandro Stojanovic, Esq.

In all medical malpractice cases, plaintiff(s) will request production of medical practices and procedures from the employer, which is usually the professional corporation employing the physician. Plaintiff(s) are focusing on the practices and procedures applicable to the licensed medical staff, especially practices and procedures that would somehow direct physician/patient relationship or interfere with patient treatment. Many of the smaller medical facilities may not have practices and procedures directing the treatment of patients because licensed medical professionals rely on their own professional judgment in treating their patients. The standard of care owed by the physician in care and treatment of patient is that degree of care and skill and diligence ordinarily employed by profession generally, not in accordance with the practices and procedures of his employer.

For example, the law in Georgia prohibits pharmacists to engage in professional pharmaceutical services under any conditions that tend to interfere with or impair the free and complete exercise of professional judgment and skill of a pharmacist. GA Admin. Code. 480-5-.03(k). In addition, it is a matter of public interest that all decisions involving or affecting the clinical dental treatment of a patient shall be left to the sole discretion of the licensed dentist providing treatment to the patient. See O.C.G.A. § 43-11-44. Also, professional corporations are able to avoid liability under the “joint venture” theory if the agreement between the professional corporation and the physician demonstrates that there is no right to control the physician in the treatment of his/her patients. See Kelleher v. Pain Care of Georgia, Inc., 246 Ga. App. 619 (2000); see also Thomas v. Tenet Healthsystem GB, Inc., 340 Ga. App. 78 (2017).

These laws protect the patient-physician relationship and further prevent interference of non-licensed entities with that relationship. What they also do is provide an avenue for plaintiff(s) to allege that employers (i.e. professional corporations) do not exercise enough control over their employees (i.e. licensed physicians). In other words, the allegations are that employers let their employees treat patients without supervision, thus failing to ensure that the treatment is performed safely and in accordance with the standard of care. It all sure sounds like “damned if you do, damned if you don’t” scenario.

The way to prevent these allegations is to have adequate practices and procedures in place. The law in Georgia presumes that the licensed physician complied with the standard of care in their treatment of a patient, which is the strongest argument against standing over the employee’s shoulder. And while the employer should not interfere with the professional judgment of the licensed physician, there are certain processes that the employer can implement in order to be able to properly respond to the scenario described above. Some processes can be implemented through the initial patient paperwork, consent forms, billing policies and procedures, and general office policies and procedures. Although some processes may already be in place, and just need to be pointed out during the litigation process, employers should always maintain updated paperwork and office policies and procedures in order to lower the risk of liability.