By Alex Stein
Georgia’s Court of Appeals recently categorized a clinic’s front-desk person’s failure to communicate a patient’s complaints to the doctors as ordinary negligence rather than medical malpractice. Wong v. Chappell, 773 S.E.2d 496 (Ga.App. 2015).
This categorization has four important implications:
First, it allows an aggrieved patient to file her suit and proceed to trial without obtaining expert testimony and a preliminary affidavit (or certificate of merit) from a qualified physician.
Second, it frees plaintiffs from the stringent limitations and repose rules that apply in medical malpractice actions.
Third, it exempts an aggrieved patient’s suit from statutory caps for medical-malpractice damages and allows the patient to recover full jury-assessed compensation for her injuries.
Fourth and equally important, it entitles the plaintiff to a broad jury instruction that speaks about ordinary negligence, as opposed to an extremely narrow definition of “medical malpractice” (see Alex Stein, Toward a Theory of Medical Malpractice, 97 Iowa L. Rev. 1201, 1209-10 (2012)).
In the case at bar, an unlicensed medical assistant employed by the defendants’ clinic had a phone conversation with a patient after answering her call. During that conversation, the patient told the assistant that “she was experiencing pain radiating from her flank and back, bleeding, and changes in her bowel movement.” The assistant estimated that the patient was having a urinary tract infection and inquired about the typical symptoms. Remarkably, the assistant “did not talk to any doctor, nurse practitioner, or physician’s assistant about the back and flank pain or the bleeding because she did not think [that the patient’s] complaints were sufficiently serious.” The patient consequently was denied the medical attention she needed and developed a life-threatening complication, from which she died.
The Court of Appeals ruled that the plaintiff’s complaint sounded in ordinary negligence, rather than medical malpractice, and that the jurors that decided the case should have been instructed accordingly.
Importantly, the Court also decided that the plaintiff could sue the clinic and the assistant for statutory violation. By acting as she did, the assistant violated Georgia’s statute (OCGA § 43–34–22) that prohibits the practice of medicine without a license. The Court held in this connection that the statute’s violation amounted to negligence per se.
This decision is unquestionably correct. Special rules that protect physicians and other healthcare providers against unmeritorious suits (characterized as “narrow entries” into medical malpractice liability: see Stein, id., at 1208-16) should not benefit administrative front-desk personnel and unlicensed assistants. Moreover, clinics, hospitals and doctors need to have a strong incentive to train their administrative stuff properly and prevent communication failures that compromise patients’ treatment.
In addition to serving as first-line barriers for patients inquiring about a medical problem, front office personnel, (schedulers, receptionists), have been dispensing medical advice, to the extent of offering up medical diagnoses, for decades, especially in the, (now few), smaller practices. Forty years ago, I wrote a paper which I hoped word serve to stop these practices; to no avail.
It is no news that most of the office personnel are women, and they protect their physicians as a lioness protects her cub. Ironically, in 2019, with so much, alleged, renewed focus on the power of women, and empowering women, this negligent practice continues.
It would seem there is little point in documenting and reporting every instance of personnel, however, when, quality assurance departments rarely take direction action; State medical boards rarely do; and State statutes provide few protections. But shouldn’t this be done.
Indeed, it becomes a legislative issue when, for example, ‘medical assistants’ are not required to have any formal medical training whatsoever, can be trained within the office, and wear the medical assistant designation. I ask what medical offices are so equipped to provide a quality paraprofessional training for non-educated medical assistants.
In the case cited here, I have not yet discerned how this was not malpractice, Is it not malpractice for a medical provider to abdicate him or herself from responsibility of proper staff supervision. And what of the hospital system itself, to which most providers now belong, dictating practice procedures that allow for receptionists, for example, to discuss patient concerns with a patient, and offer medical opinions?
With all this, four-year+ RNs, are not given the lead in patient interactions over front desk personnel or medical assistants. (I am solely a consumer). Medical assistants, whether certified, or off-the-street-trained, have often told patients, “I am the doctor’s nurse.” Space does not allow for discussion of the inherent ramifications in such cases.
I have not yet read the entire case, but doubt that the medical assistant cited was prohibited from working as a medical assistant, (or medical front office personnel), until such time as it was proven that there was documented medical training, and strenuous supervision. Since the latter would not occur, life prohibition from working in such powerful capacities should have been secured.
I believe that all medical office interactions should be recorded. Patients must be permitted to record office visits, and are rarely permitted to do so. The latter, beneficial to patients/consumers, far more so than the risk of malpractice and negligence lawsuits. Indeed, medical practitioners benefit from verbatim recordings.
It would be remiss to exclude dental practices from this note.