subpoenaed for use in litigation, physicians must guard themselves against inserting gratuitous statements in the patient's record which might later prove embarrassing in court. The medical records should not include remarks concerning (1) the patient's personality traits or idiosyncracies, unless pertinent to his case, (2) the physician's personal views to the effect that the patient is a malingerer, a troublemaker, or a potential litigant, or (3) gratuitous admissions of liability with respect to untoward medical events.

Since properly maintained medical records may later prove to be the best defense in a malpractice suit, it is of the utmost importance that the integrity of such records be preserved at all times. Strict adherence to PHS regulations relating to the release of clinical information will avoid most problems," but particular precautions should be taken when medical records are inspected pursuant to proper authorization. Under no circumstances should the person inspecting the records be permitted to handle or inspect medical records without a representative of the Public Health Service being present in the room.

(13) Care of equipment—One of the most effective ways to prevent malpractice claims is to make certain that all equipment used in patient care is in safe and proper working order. This includes diagnostic and therapeutic equipment, surgical tools 178 and supplies, wheelchairs, beds, etc. Once a piece of equipment is known to be defective or in serious need of repair, its use by PHS medical or paramedical employees in the care of patients is tantamount to negligence. Immediate steps should be taken to repair or replace the equipment in question, and where budgetary limitations make replacement impossible, consideration should be given to the use of rental equipment or to the procurement of the type of service necessary from outside sources on a contract basis.

Much malpractice litigation has arisen out of the improper use of X-ray, diathermy, short wave, and similar equipment for diagnostic or therapeutic purposes. As medical science progresses, these de

177 The pertinent regulations appear in Appendix A.

178 South Highlands Infirmary v. Camp, 180 So. 2d 904 (Ala., 1965) (Defective dermatome).

vices and other types of electronic equipment become more and more complex, and generally more potent. No such specialized piece of equipment should ever be operated by anyone who is not fully familiar therewith. The equipment itself should have every available safety device and should be inspected and calibrated periodically. Particular care should be taken to insure against electrical leaks which might shock or burn the patient, one of the most common complaints when such devices are employed.

(c) Administrative Matters

There are a number of matters of an administrative nature which can have a significant bearing on malpractice litigation, and therefore deserve careful consideration by all PHS hospital and clinic supervisory personnel. Though these matters are considered adjuncts to patient care, their importance must not be overlooked.

(1) Selection of personnel-As discussed more fully elsewhere,179 under the doctrine of respondeat superior, the United States can be held liable under the FTCA for the negligent acts and omissions of its employees. This exposure to liability makes it obligatory for all PHS supervisory personnel to exercise the utmost care in the assignment of medical and paramedical employees, since it is their points of contact with patients which form the basis for malpractice suits against the United States under the FTCA.

Particular care should be taken to verify personnel qualifications in order to protect against the employment of persons who are not sufficiently experienced or qualified to work with patients. By way of illustration, the Government can be held liable for negligence in assigning an employee known to be emotionally unstable to work with mental patients. The Government can also be held liable for using non-professional employees where professional services are required, and it is no defense in a malpractice suit to allege that since the act in question was performed by a non-professional, the latter's conduct should be measured against that of a reasonably

179 See Part A.2(b).

prudent layman. Liability will result if the act in question was one which should have been performed only by a person with professional training. 180 Hospital or clinic practices which sanction the use of non-professionals where the law requires professional attendance, place the Government in an extremely vulnerable position, and must be avoided.

181

The problem of the suit-prone physician, discussed earlier, 18 applies with equal force to other suit-prone employees, and whenever the PHS medical officer in charge learns of the presence of such an individual on his staff, he should take appropriate corrective measures without delay, including the reassignment of the individual from direct patient care activities to other duties, if so indicated.

(2) Invasion of privacy-Every patient in a PHS facility has a right to have medical information relating to his condition kept private and not disclosed to unauthorized persons. The concept of confidentiality of clinical information is not only an ethical precept of the medical profession, but is specifically recognized in PHS regulations. In the absence of the patient's written authorization, clinical information must not be disclosed. Failure to adhere to the prescribed standard of conduct may well lead to an indefensible suit based upon invasion of the patient's right of privacy.18

182

The same basic rule applies to the unauthorized taking of pictures of a patient, for clinical research or study purposes, or for use by

180 Ball Memorial Hospital v. Freeman, 196 N.E. 2d 274 (Ind., 1964) (Liability for failure to have a registered pharmacist in charge of parenteral injection fluids); Sullivan v. Sisters of St. Francis of Texas, 374 S.W. 2d 294 (Tex. Civ. App., 1963) (Failure to employ a registered pharmacist to administer hospital pharmacy); see also Hershey, N.: "Student, Instructor and Liability," Amer. J. Nurs. 65: 122 (March 1965).

181 See page 41.

182 42 CFR § 35.11 provides as follows:

"35.11 Clinical records; confidential.

"A complete clinical record shall be maintained for each patient admitted to a station or hospital of the Service. Such records shall be confidential and shall not be disclosed except as may be provided elsewhere in regulations of the Service."

183 See generally "Medical Practice and the Right to Privacy," 43 Minn. L. Rev. 943 (1959). The unauthorized disclosure of medical secrets, or any confidential communication given in the course of treatment, is tortious conduct which may be the basis for an action in damages. Hammonds v. Aetna Casualty & Surety Co., 243 F. Supp. 793 (N.D. Ohio, 1965).

newspapers, television, or other similar media. A breach of conduct in this area is particularly likely to antagonize the patient, or his close relatives, and thereby stimulate a lawsuit. From a public relations standpoint, such antagonism can be extremely harmful to the PHS, yet is easily preventable by strict recognition of the patient's fundamental right of privacy.

(3) Inquiries from the patient's relatives—A seemingly innocent inquiry from a relative about the care given to a patient may be the first indication that a lawsuit is contemplated. The handling of such inquiries calls for the utmost in good judgment, tact, and common sense on the part of the medical officer in charge, who should always make an effort to determine the basis for the inquiry. It is important to know whether the inquirer is genuinely concerned about the patient's medical progress or is merely seeking information preparatory to bringing suit.

Inquiries concerning the patient's treatment should not be regarded as an interference with the management of the case, nor should the treating physician or other personnel be goaded into emotional argumentation with the inquirer. A sincere effort should be made to rescue the situation before it moves from the hospital to the courthouse. Where some question is genuinely raised concerning a specific course of treatment, thought should be given to an informal conference with the party concerned, in which the principal medical personnel involved in the patient's treatment may offer their views, after having had an opportunity to review the clinical record. If dissatisfaction with a particular course of treatment persists, the situation may well warrant the services of a consultant, not merely to avoid possible litigation, but to assure the best possible care to the patient. The use of a consultant's services can be accomplished in a completely professional manner and need raise no inference or suggestion of improper treatment.

Once the patient has brought a malpractice suit, all inquiries relating to his PHS care should be referred to the office of the U.S. Attorney handling the case for the Government (if this is known) or to the Office of the General Counsel, DHEW, though PHS Head

quarters. Staff medical personnel must not give interviews or volunteer information to representatives of the patient once the matter. is in suit.

(4) Advice of legal counsel-An important aspect of malpractice prevention is the early recognition of potential malpractice cases and the prompt referral of these cases to Headquarters for review and appropriate legal advice by the Office of the General Counsel, DHEW. The medical officer in charge of each PHS facility should be extremely sensitive to a request for information from a lawyer whose request for details of a patient's hospitalization appears to be preparatory to institution of suit.184 Great care should

be taken not to make statements in writing to the attorney which might prove prejudicial in the event of a later suit. Whenever in doubt, the answer should be postponed pending the receipt of advice from the Office of the General Counsel.

187

185

(5) Maintenance of equipment, premises, and suppliesThe Government can be held liable under the FTCA for injuries proximately caused by faulty or defective hospital equipment,1 improperly maintained premises,186 or improperly stored drugs, medications, blood or blood derivatives.' The proper care of equipment has been stressed elsewhere in this manual, but bears brief repetition at this point. Hospital administrative personnel should periodically check all equipment used in patient care, such as crutches, wheel chairs, traction equipment, beds and bed rails, bassinets, stretchers, X-ray and diathermy equipment, oxygen supplies, heat lamps, and other similar equipment.

The utmost of care and attention must be given to the safe storage of bulk supplies of drugs, medications, anesthetic agents, and oxygen. Internal safety-check procedures must be adopted at each PHS facility to insure against obsolescence of pharmaceuticals, accidental

184

The patient's prior authorization for the release of such information is assumed. 185 See Medical & Surgical Memorial Hospital v. Cauthorn, 229 S.W. 2d 932 (Tex. Civ. App., 1950).

186 Gaitskill v. United States, 129 F. Supp. 621 (D. Kans., 1955); United States v. Bell, 354 F. 2d 220 (5th Cir., 1965).

187 See Volk v. City of New York, 284 N.Y. 279, 30 N.E. 2d 596 (1940) (Liability for using decomposed drugs).