It is very rare for medical secretaries, medical administrators or practice managers to be qualified healthcare professionals in their own right. Nevertheless, their roles are vital to ensuring that you as a surgeon or doctor can fulfil all your duties and obligations to your patients. Similarly, if they make an error in their work, it is possible for one of your patients to be harmed and for a negligence claim to result.
Arguably, the greatest risk arises from their role in managing patient appointments and your diary. When a patient is still in the process of being diagnosed multiple appointments might be needed over a period of time for examinations, or to discuss test results. If, by secretarial error, the right appointments are not made at the right time then this could cause a delay in diagnosis, and in turn treatment, leaving the patient with a worse overall outcome. Similarly, where treatment or surgery has already been provided, making follow up consultation appointments for the right intervals is vital to ensure that complications are identified and addressed promptly, to avoid harm being caused or exacerbated.
Other situations where an error in the medical secretarial role could lead to harm and a claim include where clinic letters or referral letters are necessary to ensure the patient receives the right treatment. Failures to send the letters at all, or failure to send letters to the correct address, or recipient, could also lead to delays that would ultimately damage the patient’s health.
Also, a medical secretary’s pivotal role in managing patient records makes them vulnerable to errors that give rise to significant problems and financial losses to you. You have a professional obligation to maintain medical records in any case, but for patients still in the course of diagnosis or treatment, those records can be vital to ensuring that they receive the right care. Surgeons and doctors often rely heavily on medical secretarial staff in relation to those records and they sometimes are accidentally damaged, destroyed or lost due to a secretarial error rather than the surgeon/doctor’s. Similarly, the patient’s confidentiality can be compromised when records are lost.
Why don’t medical secretaries get sued more often?
Even though medical secretaries have a vital role that can and does impact on patient safety, it is rare for them to be sued in their own names.
The reason for this is that medical secretaries are usually employed by a hospital or clinic, or directly by a particular surgeon or doctors. In those situations, the employer hospital, clinic or surgeon/doctor is “vicariously liable” for any negligent error by the secretary. The legal doctrine of vicarious liability means that the employer is held to be responsible for the employee’s negligent error in the course of the employee’s work, even if the employer did not know about, or cause, the error and would otherwise be innocent of any negligence.
As a result, most properly represented claimant patients who have been harmed by a medical secretarial error know that the correct defendant in that situation is really the employer hospital, clinic or surgeon/doctor. The hospital, clinic or surgeon/doctor then gets sued, rather than the medical secretary personally. For this reason, claims against medical secretaries personally are relatively rare.
When might a medical secretary get sued?
Despite this, it is absolutely possible for medical secretaries to be sued in their own name. There could be situations where a claimant patient is simply not sure who the employer of the medical secretary is and so decides to sue the secretary personally, as a tactic to obtain information to identify the ‘right’ defendant. Similarly, if the medical secretary is freelance or self-employed, it might not be clear to the claimant patient whether anyone is vicariously liable for their work, so the secretary will be sued personally.
Also, because of the very significant changes in litigation funding since 2013, it is now much more common for claimant patient to not have formal legal representation at all. Litigants in person usually lack a proper understanding of the relevant law and procedural rules, so it is common for them to sue the wrong party. A medical secretary could be personally sued by a claimant patient over alleged delayed appointments leading to a delayed diagnosis, simply because they do not know about the doctrine of vicarious liability and take a much more literal approach to their claim.
What if there is no Medical Indemnity insurance cover for the medical secretary?
For many Medical Indemnity insurance policies available to surgeons/doctors – although not the Incision policy – the only claims that are covered by the insurance are those where the surgeon or doctor personally is named as a defendant. Therefore, for surgeons and doctors holding those policies, their medical secretary will not be insured if they are sued in their own name. Even, where it should be clear that the surgeon or doctor will be vicariously liable for the secretary’s error, the claim will not be eligible for cover under the policy, because in literal terms the claim is not against the named “Insured” ie the surgeon/doctor.
The surgeon or doctor might be able to persuade the insurer to cover the claim anyway despite the medical secretary technically not being eligible for cover. But this outcome is far from guaranteed because it depends entirely on the goodwill of the insurer.
The more likely outcome would be that the surgeon or doctor would pay the secretary’s defence costs. This obligation might be a strict legal obligation arising from the terms of the employment, or other contract, between the surgeon/dcotor and secretary. Or, it could be done for ‘moral’ or practical reasons in order to maintain a good working relationship with the secretary. After all, making the secretary pay for their own legal defence would likely cause significant bad feeling. Also, if they have only limited funds to pay for legal representation then the claim might not be defended effectively, or defended without thought to the interests of the surgeon/doctor. Inappropriate admissions or statements might be made, which could lead to adverse consequences down the line for the secretary and the surgeon or doctor, including in terms of professional reputation.
Most likely, the surgeon/doctor would be or at least feel obliged to retain and pay for lawyers to represent the medical secretary. The legal work needed would depend on the precise situation.
However, it could include the costs of:
- Checking/investigating the secretary’s precise employment status to ascertain whether vicarious liability should apply and who exactly should be vicariously liable for the secretary’s actions;
- Complying with the procedural obligation to acknowledge service of the claim;
- Applying for summary judgment of the claim on the grounds that the relevant employer is the correct Defendant;
- Representing the secretary at the hearing of that application;
- If necessary applying for, or negotiating, formal directions to require the claimant patient to redirect the claim to the relevant employer, who will then be covered by the employer’s usual Medical Indemnity policy.
If the claimant patient is legally represented then this could all be a reasonably straightforward process that would only cost a few thousand pounds in legal fees. However, if the claimant patient is a litigant in person then the whole process might be much more time consuming and difficult, and the legal costs for the surgeon or doctor to fund could easily reach five figures.
Risk management and medical secretaries
Because of the vital role that medical secretaries perform in the care of patients and the discharge of a surgeon/doctor’s professional obligations it is worthwhile investing in their training and professional development in the same way as you do your own. Especially, if they are new to the role or returning to work after a career break.
You need to ensure that they have the necessary access to training and information about a variety of topics.
These could include:
- Why maintaining proper medical records is so important from a patient safety and regulatory point of view;
- How the data protection laws (particularly around health data) affect the practicalities of how they carry out their role;
- Medical developments that will affect how you want the patient pathway to operate;
- iv) The potential clinical consequences of errors in making appointments.
Ideally, you should be working with your secretary to develop robust policies and procedures for your practice that will help ensure that your patients are kept safe. Having those policies and procedures properly documented could also help avoid the sort of errors that arise when a medical secretary leaves, or has a lengthy absence, and you have to recruit a temp or a replacement.
Similarly, it is worthwhile giving your secretary access to training and information (for example Incision’s publications) about the requirements of your Medical Indemnity insurance, and particularly what sort of things have to be notified to insurers. Your secretary may well be the first one to know of a situation that will develop into a complaint or claim, particularly if they are the first to read your correspondence/emails, take calls from patients or deal with fee queries or non-payments by patients. If your secretary is trained to recognise what sort of situations have to be notified to insurers, then you will have assistance (and hopefully also a safety net) in complying with your insurance obligations.
Joanne Staphnill, Director, DW Law LLP
Benefits of your Incision medical indemnity insurance?
Your Incision Medical Indemnity insurance expressly provides cover for your medical secretary, medical administrator or practice manager, even where they are sued in their own name.
Ian Redbourn, Partner, Incision
*Article originally published in January 2019