Executives of healthcare organizations regularly face problems of major social and legal magnitude. Moreover, troublesome issues faced in the healthcare setting, like the patient who refuses to leave the hospital despite the fact that further hospitalization would be of no benefit, the HIV positive patient who refuses to take precautions, as well as the difficult human issues arising out of the treatment of terminally ill patients and decisions related to withdrawal or refusal of treatment, often have no parallel outside of healthcare. Similarly, federal and state law concerning medical research and patient restraints also pose unique liability challenges for providers.
The knowledge of how patient care issues can become serious problems through litigating thousands of malpractice matters, and extensive experience in handling medical-legal problems for so many clients over the years, enables the Kitch firm to help clients avoid past mistakes of others and offer innovative solutions. In this respect, we are able to serve not only as knowledgeable advisors, but also as a guide of useful medical-legal information of others. In this regard, the Kitch firm has a data bank of hundreds of legal briefs written for clients and legal research files on healthcare issues. This means firm clients can take advantage of existing knowledge from a time and cost perspective and do not need to have "the wheel reinvented" at their expense.
With the breadth of the firm's healthcare client base, the Kitch firm has been able to achieve economies of scale to address the most compelling of provider problems. For instance, a whole team of lawyers in the firm can address intense liability and regulatory issues like Emergency Medical Treatment and Labor Act (EMTALA) compliance based on multiple experiences with EMTALA problems.
We are also able to relate this experience to the risk management process. One of the key principles of risk management is being able to predict with confidence the extent of potential loss. Contrary to a general misconception, although lawsuits and exposures cannot always be prevented, they can be reduced in both number and magnitude. Using the lessons personally learned in litigation, continued vigilance of the literature regarding developments elsewhere, and the ability to adapt the ingenuity of other capable risk managers, the firm is able to offer clients practical foresight which can help them develop risk control activities that meaningfully address current and future problems.
Using our knowledge of medical legal and risk management, we have been able to develop practical and often innovative approaches to potentially problematic issues for providers including:
- Comprehensive, plain language consent forms for virtually every type of healthcare need, including medical research
- "Do not resuscitate" documentation that anticipates the challenges of implementing the decision, including family or staff resistance
- Policies for patient searches and police investigations
- Authorizations that meet the technicalities of both state and HIPAA requirements for release of information to family, friends and the media
- EMTALA compliance policies, which blend practical operations needs with technical legal requirements
- Comprehensive analyses addressing and reconciling the conflict between attorney-client privilege, peer review protections, compliance requirements and litigation needs
- Institutional investigation policies for nursing facilities, which address federal quality assurance protections, state professional-peer review protections, and state incident report disclosure requirements
- Analyses of institutional provider obligations in the face of record alteration or theft
- Educational guidelines for draft institutional policies to minimize liability.
