Errors and Omissions Insurance Case Study:
Wrongful Death

By Laura McCormick
December, 2002

The following is a claim scenario involving teleservices companies, based on combining fact from actual claims made against the ATSI Professional Liability plan.  Following the scenario are some helpful suggestions on how your company can avoid such claims.

A medical telemessaging company held responsible for a patient death: A telemessaging company performed call answering and forwarding for a group of physicians.  The company had handled this account for many years and while there were originally written instructions that all calls received for a specific doctor were to be directed to either a medical center or to a designated on-call physician, whose identity was supplied each day by telephone, this documentation hadn't been seen in years, nor had it been reviewed or updated.

 A call came in one evening for a specific doctor and the company tried, without success, to get through to the medical center.  The company then paged the originally specified doctor, rather than the on-call doctor.  A delay occurred before the original doctor answered the page.  Ultimately, the patient died and a lawsuit was filed, alleging that the delay caused or contributed to the patient's death.

The telemessaging company was defended by its insurance provider.  The company could not get out of the lawsuit on a summary judgment motion, because the court found there was a question as to whether the delay was a cause or contributing factor to the patient's death.  There was also a question about whether paging the originally specified doctor was in accordance with applicable legal and contractual standards for medical telemessaging companies.  Ultimately, a settlement was reached, with the teleservices company contributing a substantial percentage of the total settlement amount.

How this claim could have been avoided or mitigated: The medical teleservices company had a written set of instructions from its client on how to deal with certain situations.  This is a good and necessary practice, which is strongly recommended.  However, perhaps because of a lack of training, inexperience, or a lack of communication to the agents on duty, these instructions were not followed by the agents.  Further, the general instructions about the on-call physician were nowhere to be found, nor had they been reviewed or updated by either the client or the telemessaging company.  This made it harder and more expensive to show what protocols the company followed or attempted to follow.

Written checklists, changed every day to meet the specific needs and instructions of each client, cannot only prevent errors from occurring, but can also furnish documentary proof that a telemessaging company performed its work in accordance with applicable standards of care.  Continued training of agents is important, and it is strongly recommended that all contracts, instructions, lists, and protocols for each client should be discussed, reviewed, and updated periodically.  Further, these reviews should be acknowledged in writing by the client, including confirmation that the instructions and procedures are correct and approved by the client. 

For more information contact Laura McCormick or Chris Jones at 866-303-4297 or visit https://atsi.haysaffinity.com.

For more E & O Case Studies, see Laura's previous and subsequent article.

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