Risk Management

Risk management is a coordinated effort to:

• Identify and avoid risk.
• Reduce risk to clients.
• Contain and correct problems that affect clients and behavioral health care providers.
• Reduce and manage legal risks to you and your employer.

All health care providers are at risk for lawsuits because not all problems (negative outcomes) are preventable; they sometimes occur in spite of excellent care. However, providers can learn to protect themselves. This may include consulting with someone at your organization who coordinates risk management activities.

Legal problems can result from many things, including:

• Poor communication between a staff member or provider and client.
• Unintentional errors.
• A client's disappointment in her treatment outcomes, even if there is no error (e.g., a client’s substance abuse relapse).
• Failure of a provider to meet professional ethics, standards, or legal requirements.
• Disrespectful behaviors, such as pushing personal beliefs onto a client.
• Poor maintenance of offices, clinics, and other facilities (e.g., loose floorboards, ice build-up, or exposed wires).
• Neglecting yourself. People make more mistakes when they don’t get enough sleep or take time to care for themselves.
• Not following your organization's established policies and procedures.

Malpractice is a type of legal claim involving professional wrongdoing that results in harm or injury. Many lawsuits against health care providers are for malpractice.

Malpractice claims may arise if the health care provider:

• Crosses boundaries.
• Takes advantage of a client (e.g., dating a client, borrowing money from a client, or using knowledge of a client outside the therapeutic relationship).
• Provides poor care (e.g., negligence, errors, lack of follow-up, or inadequate education).
• Fails to protect client privacy.
• Works outside his scope of practice.
• Provides treatment without necessary consent.
• Fails to complete documentation.

Understand what your clients think is important.

• Clients and their families expect providers to be available, kind, compassionate, respectful, and tolerant at all times.
• Clients want to be heard and to be able to trust that what they say will be kept confidential.
• They may think they are receiving poor services if providers seem careless, impatient, distracted, disrespectful, irritated, or impolite.
• At the beginning, they may not have enough information about their treatment, your counseling methods, possible outcomes, and what to expect.
• They might also have unrealistic expectations based on what they’ve seen on TV, found on the internet, or heard from their families and friends.
• They may have encountered other health care providers before you who told them something different.
• They may think you should bend the rules for them.

The best protection for both the client and the BHA/P is to:

• Focus on providing good care.
• Follow organizational policies, procedures, and guidelines.
• Follow the BHAM.
• Obtain informed consent, and explain the reason for the services you will provide and your expectations for outcomes.
• Follow instructions from your supervisor.
• Only do things you have been trained and certified to do.
• Tell your supervisor if you’re having difficulty or need more training.

Call your supervisor when:

• There is something about the client or situation that is different from what the BHAM describes or does not fit the direction provided by the certification standards.
• The client responded much differently to treatment than you expected.
• You or another health care provider might have made a mistake.
• You don’t know something or are not sure what to do.
• Someone threatens to call a lawyer or sue you.
• Someone threatens to call another agency to complain.

Call the police, Alaska State Troopers, Village Police Officer (VPO), or Village Public Safety Officer (VPSO) if someone threatens to harm you or others. Also tell your supervisor.

Document what you do for and observe about the client. Below is a list of best practices for documentation that, if adhered to, will significantly reduce your legal risk. Refer to Chapter B-8: Documentation and Billing for more detailed information related to documenting client services.

• Complete the documentation as soon as you can after the care is provided. Do not save notes or forms for completion later in the week.
• Documentation should follow your organization’s policies and procedures.
• Make sure the documentation is readable, clear, accurate, and complete.
• Document carefully:
  • What the client and family says about the problem.
  • Medicines, client education, other care, and follow-up.
  • Every report made to your supervisor and the time it was made.
  • All telephone calls to doctors, hospitals, or other providers.
• In the case of an emergency, take time to document the event immediately after the situation has stabilized.
• Date, time, and sign every note in the client’s chart.
• Use additional pages if necessary.
• If you notice that there is a mistake in the chart or that you forgot to include something, do not change the chart. Make an addendum (a new page) for additions.
• Do not write things in the chart or record that blame yourself or other people.
• Avoid unnecessarily negative descriptions. Focus on facts. For example, it is usually better to say, “The client’s statement is inconsistent with other information we have" (such as a report from a parent or teacher) than to say, “The client lied.”

Treat clients respectfully. Listen to them when they share a concern.

Follow your employer’s policies for reporting incidents. Tell your supervisor about problems and concerns.

Help maintain a safe health care environment.

• Be mindful of clients traveling to and from appointments—they may need family or caregiver escorts.
• Be observant and report any risks you notice in the clinic (such as loose floorboards, exposed wires, or unsafe furniture).

Keep your skills and credentials updated (including your BHA certification).

• Learn everything you can.
• Attend classes, trainings, and supervisory meetings.
• Go to continuing education classes to keep your knowledge fresh and skills current with best practices.
• Read professional articles.
• Practice, practice, practice.

Be careful about working with children alone.

• Avoid meeting with children without another responsible adult present in the building. Make sure a parent or guardian is nearby and easily available.
• Maintain good personal and professional boundaries.

Do everything you can to build trust with clients, supervisors, and your community.

• Do not talk about clients to anyone except other providers or agencies directly involved in the client’s care and with whom you have Releases of Information. Never talk about clients with family and friends.
• If you do not know how to help a client, say so. Reassure the client that you’ll talk with other providers to develop a plan.

Practice good counseling.

• Do the best job you can for your clients.
• Be sincere and understanding about their problems.
• Listen without judgment.
• Respect and maintain privacy and confidentiality.
• Care about your clients even when it is difficult.
• Always follow up with clients. Remind clients to come back to see you if there are any problems or concerns.
• Be open and honest about the services you provide.

Practice self-care.

• People make more mistakes when they are tired and distracted.
• Be realistic about how much work you can do.
• If you are feeling burned out, take a break to engage in self-care, request a vacation, or ask for help from your supervisor.

Remember: Everyone makes mistakes. Most mistakes do not result in legal problems, especially if you address them honestly and maintain a good relationship with the client. If you make a mistake, be honest and call your supervisor immediately.

If you think there is a high-risk situation where a client or others could be harmed:

• Follow organizational policies.
• Protect yourself, the client, and others.
• Call your supervisor.
• Remember your duty to warn.
• Use deescalation techniques.

If there is an unexpected outcome:

• Write down only the facts and what you did.
• Don’t try to explain why there was a bad outcome before all the facts are known.
• Don’t blame yourself or another provider or say someone did not do a job right.
• Call your supervisor to share your concerns.

Follow your employer’s policies and procedures for responding to grievances and complaints.

Think of grievances and complaints as an opportunity; they give you a chance to address problems and learn from mistakes.

Take a positive approach to difficult situations and people:

• Think about and plan for difficult situations.
• Listen calmly when someone is expressing concerns and pay attention to the client’s statements.
• Do not make hurtful comments about the client or other providers.
• If you think a coworker is doing something wrong, talk to the coworker in private or discuss it with your supervisor (not other coworkers).
• Avoid blaming or offending your client (or the parent or guardian) even if you think the client has caused the problem or made it worse.
• Try to be solution-oriented: ask clients and their families to help you solve the problem.
• Ask your supervisor for help if you need it.
• For more, see Chapter C-5: Working with Difficult Clients.

Apologize and offer assistance if appropriate.

• Don’t say it is your fault if it is not your fault (or if you’re not sure).
• Let the client know you empathize with the situation he is experiencing.
• Offer to talk to your supervisor about how the client’s concerns can be addressed.

Thank the client for telling you about the concerns.

Try to learn something from difficult comments. Nobody is perfect and we all have room to improve, so see client feedback and complaints as opportunities to become an even better BHA/P.

Stay calm.Your organization’s risk management team will help handle this. Remember, the lawsuit is against the tribal health organization (THO) that employs you and not against you as an individual.

In most claims against the THO, the lawsuit will actually be brought against the federal government.

• The United States will take your place as the defendant.
• The Indian Health Service (IHS) will review the incident and decide if it should pay the claim.
• If the IHS elects not to pay the claim, the US Attorney’s Office will provide a lawyer to defend the lawsuit.
• If the lawsuit is lost, the federal government will pay the award.
• The BHA/P does not pay.

Limitations. In some cases of BHA/P practice, the Federal Tort Claims Act (FTCA) may provide some helpful protections and limitations for:

• Wrongful Acts: things the BHA/P should not have done.
• Omissions: things that the BHA/P should have done, but didn't do.
• Negligent Acts: things the BHA/P did accidentally or incorrectly.

Doing your job. If you were “acting within the scope of employment” (doing your job) at the time of the incident, an attorney will usually be provided by the federal government.

• Sometimes your employer will have insurance that will pay for an attorney instead. Ask if that attorney also represents you.
• You may get your own attorney, but often it will not be necessary.

Federal Tort Claims Act (FTCA) Liaison. Your employer’s FTCA liaison will work with you to get the information needed to defend the claim or lawsuit.

1. Don’t discuss the claim or lawsuit with anyone until you talk to your supervisor.
2. Call your supervisor immediately and cooperate with your employer. Your supervisor and employer are likely involved in the same lawsuit.
3. Don’t contact the client. If you do see the client, continue to act respectfully and do not discuss the case with her.
4. Maintain strict confidentiality about the claim or lawsuit. Seek guidance before sharing any information, even with family or coworkers.
5. Cooperate and help defend against the claim or lawsuit.
6. Promptly respond to requests for information from the FTCA liaison and attorney.
7. Speak directly to the attorney for your side if you:
   • Have questions about what they are really asking.
   • Are not sure how to answer.
   • Think the answer might get someone in trouble.
   • Are contacted by another attorney.
8. Do not respond if the client’s attorney tries to contact you; talk to your attorney first. The client’s attorney might try to make you angry or upset so that you say things you don’t really mean.
9. Leave contact information with your agency’s attorney and the FTCA liaison if you go on vacation, move, or change jobs.
10. Be patient. Legal claims and lawsuits sometimes take years to resolve.

Potential Outcomes. As BHA/P, you will not usually be required to pay for a malpractice claim if acting within the scope of employment (i.e., doing your job) at the time of the incident. If, however, there are significant concerns about the care provided, you could:

• Be required to make changes, get additional training, or limit the scope of practice.
• Lose your job.
• Lose your certification.