How to Mitigate Frivolous Malpractice Suits Before They Start

According to a recent study, complementary and alternative medicine (CAM), which includes such practices as massage therapy, yoga, herbal medicine and meditation, has been increasing in popularity for many years. More than 80 million Americans turn to complementary and/or alternative medicine (CAM) every year, according to the Institute for Health and Healing at California Pacific Medical Center.

With the increased acceptance of such treatments as massage for medical purposes, an increase in malpractice claims is inevitable. Practitioners who offer alternative therapies may be particularly vulnerable to malpractice claims, since in many cases the clients who seek them suffer from conditions that are not amenable to orthodox therapies. Treatments considered outside the norm of Western medicine “standard of care” often come with a disconnect between client expectations and what can be delivered.

Risks can be mitigated by proper planning and clear judgment. Consider establishing crystal-clear rules for clients by contract before treatment is initiated, particularly for the following three key issues.

Expert witnesses

If a suit is brought against any physician, it’s critical to ensure an expert witness in the same field of medicine. The same is true for massage therapists. If the plaintiff’s expert does not understand massage therapy, it’s unlikely he will view the therapist’s position favorably.

Using contracts can ensure, when suits do rise, that proper expert witnesses are used on the stand. The contract states should there be a legitimate dispute, each side will use a board-certified or credentialed expert in the same specialty who is a member of and follows the code of ethics for that specialty. Just using these contracts can deter unwarranted litigation.

Demand for refunds

Another issue is the demand for refunds. Many massage therapists are on a cash-pay system with clients. It’s true, however, that patients who pay out of pocket are more likely to demand a refund when the results they were hoping for were not, in their opinion, achieved. In addition, there’s often the implicit threat of lawsuit if a refund is not given.

This type of problem is unique to practitioners in the cash-pay business. On first blush, it might seem reasonable to give the client her money back in exchange for assurances that the matter is closed. However, a refund can be improperly construed as a tacit admission of guilt and can be manipulated by a clever plaintiff’s attorney to support the argument that the therapist would never have given the refund unless he was guilty of malpractice.

For this reason, if a therapist chooses to give money back to an unhappy client, he should think strongly about tying the payment to a full and complete release. The client agrees, in this release, that the exchange of money means there cannot and will not be a claim for medical malpractice. Granted, there are nuances that must be considered, such as state-by-state board rules and whether or not such a payment is reportable to the National Practitioners Database.

Internet rating sites

The third issue facing any practitioner of CAM today is the Web. The hallmark of the Internet is its ability to increase the free exchange of ideas. However, the ease with which information is proliferated increases the damage caused by false or harmful information, stretching the bounds of defamation. Online erroneous statements may linger for months, or even years, almost impossible to recover, amend and remove.

Historically, if a client was dissatisfied with care, he or she could tell his or her friends and family. The criticism was limited to a small circle of people. With the Internet, clients need to do little more than access a growing number of Internet healthcare physician rating sites. In 2010, there were more than 40 such sites—and this criticism can be given anonymously. Those with an axe to grind, such as competitors or disgruntled staff, can pose as clients. Another facet of the issue lies with the rating sites themselves. While transparency in medicine is a laudable goal, such sites generally lack accountability.

To make matters worse, physicians of all kinds are prevented from responding to negative posts because of state and federal privacy laws. In most cases, a practitioner cannot even confirm or deny the poster is a patient. Even if a massage therapist is not required to be HIPAA compliant under the confines of his or her practice, privacy considerations under HIPAA still apply. When you maintain client records, gather information from a client, engage in oral communication or transmit records (whether electronic or not), you are considered a covered entity.

To counter this issue, it is recommended to consider a client agreement to level the playing field. These agreements do not forbid postings online, but instead transfers copyright of any online patient commentary to the therapist. The therapist is then free to enforce his copyright under what is known as the Digital Millennium Copyright Act, allowing him to control any egregious content. Most patients sign this agreement with no concern because the contract is patient-friendly, balancing the legitimate rights of patients with the reasonable concern of physicians.

In summary, practitioners of massage therapy must be cognizant of the new risks they face. These risks can be mitigated by proper planning and clear judgment in three key areas:

  1. Expert witnesses: Establish clear rules for clients in the form of a contract before treatment is given. In particular, such an agreement should detail which class of properly credentialed individuals can serve as expert witnesses should there be litigation.
  2. Refunds: As practitioners who accept cash payment for services rendered, attention must be paid to details regarding refunds.
  3. Web postings: Signed agreements with clients in advance of treatment can provide a viable solution if a client takes to the Web with egregious grievances.

Jeffrey Segal, M.D., J.D., is the founder and chief executive officer of Medical Justice, a membership-based organization in Greensboro, North Carolina, that offers services to deter frivolous medical malpractice lawsuits, prevent Internet defamation and provide physicians with strategies for counterclaim prosecution. He is a board-certified neurosurgeon, a fellow of the American College of Surgeons, and a member of the American Association of Neurological Surgeons as well as the North American Spine Society. For more information, visit www.medicaljustice.com or call 877-633-5878.

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