Medicolegal essentials: malpractice, NPDB, HIPAA, surrogates and impaired colleagues

Negligence needs duty, breach, causation and damages; an entity's malpractice payment for a practitioner is reportable at any amount; HIPAA allows treatment disclosures without authorization except psychotherapy notes; designated surrogates decide by substituted judgment; impaired colleagues must be stopped now.

1. Malpractice has four elements. The injured patient must prove a professional duty owed, breach of that duty, injury caused by the breach, and resulting damages ¹.
2. Payments for a practitioner are reportable. Any entity paying to settle or satisfy a written malpractice claim for a practitioner's benefit reports it to the NPDB; payments solely for an entity that name no practitioner are not reported ².
3. Treatment disclosures need no authorization. A covered entity may disclose protected health information for another provider's treatment activities without the patient's authorization ³.
4. Psychotherapy notes are protected separately. An authorization is required for most uses or disclosures of psychotherapy notes, apart from narrow exceptions such as use by the originator for treatment ⁴.
5. Designated surrogates come first. For a patient lacking capacity, identify the surrogate named in a durable power of attorney; family serve when none was designated, and decisions follow substituted judgment ⁶.
6. Stop an impaired colleague from endangering patients. Intervene with respect and compassion, ensure the colleague no longer endangers patients and receives evaluation and care, and seek help through institutional channels ⁷.

The best-interest standard applies only when a patient's preferences are unknown and cannot reasonably be inferred; otherwise the surrogate decides as the patient would have ⁶.

• The NPDB has no de minimis exception: the amount of a malpractice payment is irrelevant to reporting ².
• Malpractice payments are reported within 30 days of the payment, including a payment made before a settlement or judgment ²⁸.
• A payment a practitioner makes from personal funds is not reported; a payment made solely for a hospital or group practice is not reported either ².
• A covered entity must act on a patient's request to access records no later than 30 days after receiving it, extendable once by up to 30 days ⁵.
• An ethics committee should be consulted when no surrogate is available or disagreement about the surrogate or treatment cannot be resolved ⁶.
• Physicians should advocate for physician health programs and fair, evidence-based peer review ⁷.
• Malpractice payments for NPDB purposes are money paid on a written complaint or claim demanding payment for damages ².
• Money damages typically cover both economic loss and noneconomic loss such as pain and suffering ¹.

• Assuming a small settlement is not reported to the NPDB ².
• Withholding visit notes from another treating physician until the patient signs an authorization ³.
• Letting a closer relative override the patient's designated health care agent ⁶.
• Letting an impaired colleague proceed under observation ⁷.