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Kaiser Ordered to Pay $3 Million in Medical Malpractice Damages After Death of Tennis Champion

A recent medical malpractice lawsuit against a Marin County Kaiser Permanente hospital ended in March when the hospital was ordered to pay $3 million in damages.

The lawsuit was filed by the surviving family of tennis champion Ken Flach, who died in 2018 at age 54. Flach developed both pneumonia and an antibiotic-resistant staph infection that went untreated for at least a day. Flach attempted to schedule an in-person appointment with his primary physician several days before his death. However, he was referred to an “advice nurse” who scheduled him for a phone appointment later that day based on Kaiser Permanente’s policy to screen patients before scheduling in-person appointments.

During the phone appointment, which lasted less than four minutes, Flach’s physician told him to take over-the-counter cough and codeine medication and scheduled no further meetings. The doctor’s recommendations actually made Flach’s condition worse, as the medications allowed the infection in his lungs to grow. By the time Flach went to the ER the next day, it was likely that “no antibiotic treatment would have been able to change his course.”

Christina Flach, Ken’s widow, filed the lawsuit on the grounds that Kaiser’s policy of screening patients through advice nurses is institutional negligence. Her argument was that the policy leads to cases like her husband’s, where patients with severe conditions are screened out on nothing more than a phone call. This leads to people failing to receive potentially life-saving care.

The arbitrator in charge of the case agreed with Christina Flach’s argument and found that Kaiser Permanente had committed institutional negligence in Ken Flach’s case. The arbitrator awarded the Flach family $3 million in damages, covering both medical costs and pain and suffering.

Unfortunately, a single malpractice lawsuit is unlikely to change the habits of massive institutions like Kaiser. Here’s what you need to know about so-called advice nurses, their healthcare issues, and how to tell if your medical provider has committed malpractice by relying on them.

What Are Advice Nurses?

An advice nurse is usually someone with a degree in nursing who acts as the main point of contact when patients reach out to primary care providers (PCPs). When a patient calls their PCP’s office to request an appointment, they’re put in touch with an advice nurse. The nurse talks to them about their symptoms and concerns, then determines whether the patient should receive:

  • An immediate in-person appointment
  • A phone appointment as soon as possible
  • A phone or in-person appointment sometime in the future
  • No appointment at all

There are two purposes of policies that require advice nurses to screen patients before making appointments. One is to avoid wasting the time of both doctors and patients on unnecessary appointments and maintain the PCP’s schedule as much as possible.

The second is more problematic. An unspoken reason some hospital systems institute advice nurse policies is to reduce the number of in-person appointments overall. Phone appointments take up less of a doctor’s time, so prioritizing them allows a hospital system or HMOto “treat” more patients without hiring more costly physicians.

The Problems With Kaiser’s Reliance on Advice Nurses

Some basic forms of screening can be necessary to maintain a functional schedule. A good advice nurse program can help keep people with minor complaints from overwhelming clinics or preempting patients with preexisting appointments.

However, that’s not Kaiser’s policy. Instead, according to the arbitration records of the Flach case, the nurse who took Flach’s original call stated that it’s Kaiser’s policy to keep “infectious” clients out of clinics and schedule them phone appointments instead.

Part of how Kaiser accomplishes this is by maintaining a staff of hundreds of advice nurses in off-site call centers. These nurses have computers running flowchart software, guiding them to Kaiser’s officially preferred response to different symptoms.

In cases like Flach’s, the nurse followed those on-screen prompts and failed to use their critical thinking skills to override the system and schedule Flach the in-person treatment he desperately needed. Kaiser’s policies guide advice nurses to commit malpractice by following a computer program’s instructions instead of considering the needs of the patients that call them.

When Insistence on Advice Nursing Becomes Malpractice

If some advice nursing programs are justified and others are malpractice, there must be a point when an HMO’s behavior crosses that line. Knowing where that line is becomes important if you suspect advice nursing policies have harmed you.

In general, institutional or HMO malpractice is defined as a negligent act that is caused by the policies or actions of a medical organization. For a judge or arbitrator to find that HMO malpractice has occurred, the following elements must be present:

  • A healthcare employee must have been negligent in the treatment of the patient
  • The negligence must have harmed the patient’s health in some way
  • The healthcare employee must be legally employed by the institution
  • The institution must be deemed in part at fault for the negligence

Furthermore, most institutional malpractice cases occur when individual healthcare providers are incentivized to act negligently by the institution. For example, the Kaiser advice nurse involved in Flach’s case was incentivized by Kaiser’s policies to assign him a phone appointment or risk a review from her supervisor.

You may have been a victim of institutional malpractice if these elements are all present. If an employee of an organization like Kaiser Permanente is negligent in your care and harms you, you may have grounds for a lawsuit. The question is whether your case should be considered institutional malpractice, physician malpractice, or both.

Fight for Your Health with Help from a Medical Malpractice Lawyer

No matter what kind of malpractice you’ve suffered, your life could be changed forever. If you know or suspect that you’ve suffered malpractice at the hands of Kaiser employees, you need to take action. An experienced Marin County medical malpractice lawyer will help you hold your medical providers accountable for their negligence. Schedule your consultation today to begin the process of fighting back against negligent HMO policies and healthcare providers.

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