Minute clinics: what providers can do to protect themselves from liability

March 17, 2008

Given the risks of working with the new limited-service clinics in pharmacies, health care professionals associated with them should do the following to protect themselves:

• Verify coverage for medical malpractice claims

“Any [supervising physician] would want to make sure the retailer is taking responsibility either directly or through an indemnity agreement for any negligence that may arise on their part,” says Leonard Simon, a medical-malpractice plaintiffs’ attorney in Waltham. “I’d also avoid holding myself out as an independent contractor or signing an agreement with a retailer that would allow me to be thought of as an independent contractor.”

At CVS’s MinuteClinic, while all collaborating physicians are independent contractors who maintain their own practices, the company purchases professional liability insurance for them, Ratner says.

• Ensure that protocols are in place for nurse-physician relations

It is critical for nurse practitioners to make sure there are guidelines for the relationship between them and any supervising physicians, says Heather Beattie, a med-mal defense lawyer in Springfield, who practices with Morrison Mahoney.

Under state guidelines issued by the Board of Registration in Nursing, the nurse practitioner is supposed to have written guidelines as to what kinds of findings dictate that he or she call the physician, send a patient to the emergency room or call an ambulance.

These guidelines – if well-crafted and followed – should help avoid many of the potential liability scenarios that can arise from supervision issues. Because the board has the power to discipline a nurse based on insufficient guidelines, says Beattie, he or she should have the board sign off on them before starting at the clinic.

Even if MinuteClinic or another retailer has guidelines in place, Beattie recommends that the nurse still clear them with the board. She also suggests that doctors run the guidelines by the Board of Registration in Medicine.

“This may put a stumbling block in the contractual agreement between the nurse or doctor and the company,” she says. “But I’d rather do that than put my license at risk. This is a new area that will eventually be tested and I’d want to make sure I was on sure footing before I jumped in.”

• Share information with patients’ regular providers

Limited-service clinics will want to cause as little disruption to their patients’ regular physicians as possible.

As a result, MinuteClinic, and presumably potential competitors, will be passing along records of visits to primary care providers.

But primary care doctors must also do their part to minimize disruption. This means implementing procedures to ensure that they actually see reports from the clinics and act on them.

“Keeping in good contact with other health care providers who see their patients is a problem that a lot of primary care doctors have,” says Beattie. “A report from a clinic could be important information that leads to further workup.”

Simon also urges primary caregivers to establish systems for fielding calls from clinics that may seek advice on how to proceed with one of their patients.

For one thing, the doctor should avoid giving actual treatment advice. By doing so, the doctor would be assuming joint liability with someone he does not know at a time when he has no physical access to the patient.

Karen R. McAlmon, president of the Massachusetts Chapter of the American Academy of Pediatrics, agrees.

“That’s why most [physicians] will most likely just say, ‘I need to see my patient myself.’”

-Eric Berkman