Occupational Medicine Physicians and Their Medical Malpractice Risk Occupational physicians are as likely as other physicians to face medical malpractice lawsuits.
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Occupational physicians are as likely as other physicians to face medical malpractice lawsuits. One of the three subspecialties certified by the Board of Preventive Medicine, occupational medicine is a subspecialty of preventive medicine as these physicians must practice primary prevention, evaluating the short-term as well as long term hazards of the workplace in connection with people and disease. They are expected to be proficient in general medicine, minor emergency care, environmental medicine, ergonomics, toxicology and fitness evaluations. They also routinely perform medical records review to evaluate the fitness of the worker, and function as expert witnesses as well. Performing Pre-employment/Annual Employment Physicals for Employees The workers’ compensation industry utilizes the service of occupational medicine physicians to evaluate the degree of disability suffered by an injured employee so that they can calculate the benefits. Other insurers and employers also make use of their services. The service of these physicians is usually utilized for pre-employment and annual employment physicals, or for performing workers ‘compensation impairment ratings. Analysis of earlier and current medical records is an essential component in such exams and occupational medicine physicians find medical review services very useful to arrive at the correct inference. Though the services of these physicians are indispensable in the workers’ compensation industry, the nature of a physician-patient relationship is rather ambiguous in the occupational medicine setting. When it comes to medical negligence, the elements of duty to the patient, breach of the standard of care by the physician, causation and damages are vital. A well-defined physician – patient relationship is required to establish “duty to the patient.” Moreover, this “duty” is established by mutual consent of the physician and patient. Rulings on some U.S cases demonstrate that courts still honor the consensual nature (mutual consent) of the physician-patient relationship, recognizing the fact that such a relationship is required to establish the necessary “duty” for medical malpractice purposes. For instance, when an occupational medicine physician performs a pre-employment /annual employment physical for an employee, that examination itself creates a physician-patient relationship to the extent of tests conducted. This imposes a duty on the physician to discover and disclose known findings. Even so, courts may find an “exception” that makes allowances for imposition of duty to the occupational physician.
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The Malpractice Risk The malpractice risk occupational medicine physicians face depends on how they are employed.
Physicians who are employed by the company stand the risk of being sued as independent contractors or under the dual capacity doctrine (the law prevalent in some states that allows workers of a company to bring a lawsuit against their fellow workers who have independent professional licenses on the grounds that the employer does not control the licensed professional).
A physician commits malpractice when his/her treatment does not meet the established standard of care. In occupational medicine, o
This constitutes the failure to warn a worker about an adverse condition/risk of a future adverse condition
o
Sending an employee back to work too early, without the appropriate safety measures. A New Jersey case of the year 2001 extended the liability of occupational physicians, maintaining that these physicians have a duty to inform examinees of potentially serious medical conditions and also that such duty may not be delegated.
What is the best way to avoid such risks?
It is important that occupational physicians take a comprehensive and cautious view when examining patients to avoid the risk of “failing to warn a worker”. For instance, they should go beyond focusing on the reported injury alone in a workplace accident. When checking a chest X-ray for a broken rib, they have also the obligation to check for signs of a tumor or other conditions that may be present.
To avoid the risk of sending the employees back to work too early, they should use careful documentation and make sure to include the grounds for all decisions taken. It is also advisable to get a second opinion, ideally from a physician not affiliated with the employer, if the patient seems defiant, or questions the decision to send them back to work.
Staying Guarded Occupational medicine physicians are often caught in a difficult situation sandwiched between employers who want their workers back to work soon and patients who wish to
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make optimal use of their disability compensation. Occupational medicine physicians should not offer services they are not qualified to perform.
In certain situations, federal/state regulations make special training/certification compulsory for physicians performing a regulated activity. For instance, consider the Department of Transport regulations that mandate that only a Federal Aviation Administration-approved flight surgeon can perform physical examinations of licensed pilots.
OSHA (Occupational Safety and Health Administration) regulations stipulate that only specially certified physicians can read chest X-rays of industrial workers. In specific cases, these regulations require occupational medicine physicians to refer such workers to specialists.
Occupational medicine physicians must exercise remarkable discretion and should have in place solid risk management procedures that will help them get through the challenging situations they often find themselves in. Understanding the various areas for liability will help to minimize the physician’s exposure to medical malpractice risk.
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