Occupational Malpractice Insurance
Physicians practicing occupational medicine have varying exposure to malpractice risk, depending largely on how they are employed. Even physicians who are company employees and may think themselves protected from liability by their employers can sometimes still be sued as independent contractors or under the dual capacity doctrine. The dual capacity doctrine is a law in some states that allows employees of a company to sue fellow employees who have independent professional licenses, on the grounds that the employer does not control the licensed professional. All occupational physicians should familiarize themselves with the laws in their state as well as the types of scenarios that commonly lead to malpractice claims in the specialty and take steps to protect themselves from liability.
In occupational medicine, as in other specialties, malpractice is committed when the physician’s treatment does not meet the established standard of care. In occupational medicine, this most often means either failure to notify a worker of an adverse condition or risk of a future adverse condition as well as sending an employee back to work prematurely, without adequate safety measures.
In order to avoid a failure to notify the worker of an adverse condition, occupational physicians should take a prudently broad view when examining patients. There is often a temptation to focus exclusively on the reported injury in a workplace accident, but the occupational physician has some duty to examine the patient comprehensively. For example, if a physician is examining a chest x-ray to determine whether a patient has suffered a broken rib after an accident, the physician is still obligated to check the x-ray for any signs of a tumor. However, if the patient has an injury in his or her foot, the physician has no obligation to take a chest x-ray and check for tumors.
To avoid prematurely returning employees to work, employ careful documentation, including the rationale for all decisions. Additionally, if a patient seems resistant or questions his or her return to work, it is always a good idea for the occupational physician to seek a second opinion, preferably from a physician who has no affiliation with the employer.
Physicians in occupational medicine often find themselves in a unique situation: they are caught between employers, who wish to see employees return to work as quickly as possible, and patients, who often prefer to maximize their disability compensation and to whom they have a duty of care. This duty is doubly complicated by the fact that employees typically do not have the right to refuse the occupational physician’s services, or seek alternative care. Caution and prudence, as well as sound risk management procedures, are necessary to navigate this delicate situation.
In many cases, physicians without special training or certification are asked by employers to provide occupational medicine services. Physicians should consult with experts before agreeing to provide such services, as they may be operating outside of their legally allowable scope of practice.
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