Avoiding the Perils

1. Avoiding the Perils of Medical Malpractice

2. Top five most frequently sued specialties: OB/Gyn Internal Medicine FP/GP General Surgery Orthopedic Surgery Preventing medical error is about saving lives – not just dollars – but when it comes to lawsuits, where the dollars are paid paints a picture of the unexpected bad medical outcomes that prompt claims and suits in today’s medical environment. Where the Losses Are (PIAA)

3. PIAA – Data Sharing Project • Top Five Most Expensive Medical Condtions (2000-2009) • Chest Pain $774,263 • Symptoms Inv. Ab & Pelvis $561,674 • Back Disorders $726,828 • Pregnancy $781,755 • Neuro. Impaired Inf. $1,373,311 • Back Disorders $726,828

4. What’s New?Good News/Bad News • Number of lawsuits is(was) trending downward • Indemnity (dollars awarded) is trending upward. • Expense to defend is growing quickly. • Your chances to be sued over the course of your career in medicine is around 1:5 depending on your chosen specialty. • AMA survey 2007-8: >20% phys sued 2 or more x • Avoiding medical error is the best way to avoid a lawsuit. • Focus is shifting to patient safety as the best RISK MANAGEMENT strategy.

5. Some Basic Insurance Questions • WHAT IS A CERTIFICATE OF INSURANCE? • The Certificate of Insurance is proof of insurance issued by your carrier. The Certificate includes the policy number, effective and expiration dates and limits of liability. • CAN I BE VICARIOUSLY LIABLE FOR MY COLLEAGUES? • yes • HOW MUCH IS ENOUGH MALPRACITCE INSURANCE? • `it depends

6. Perils of Vicarious Liability • Vicarious liability is the indirect legal responsibility of the principal for the acts of his or her agent. A common example of vicarious liability is the employer’s liability for torts committed by his or her employees within the scope of their employment. • There are also situations where there may not be an actual agency relationship, but the circumstances suggest an apparent or so-called ostensible agency relationship. In other words, the principal has not delegated any authority to an agent but there is the appearance that such a relationship exists. Therefore, an agency is implied by relationship.

7. Perils of Vicarious Liability • Consult a knowledgeable attny for assistance in structuring business associations. • Review insurance policies to identify what coverage is available or may be needed for allegations of vicarious liability. • Evaluate and be on guard for business associations that could be reasonably construed as a partnership or agency relationship. • Display signage both inside and outside the office, which clearly identifies the relationship of the group.

8. Perils of Vicarious Liability • Clearly identify your relationship on cards, letterhead and billing statements. • Before sharing office space, take time to know the other doctors, including philosophy for managing employees, credit ratings, credentialing, privileging information, and what type of insurance coverage they have.

9. Formula for a Lawsuit An unexpected bad outcome plus: + A misunderstanding or + An honest mistake and + An angrylitigious society plus + A critical healthcare practitioner. = Malpractice Lawsuit

10. It’s In the News • The I.O.M Reports have shared our dirty laundry with the public. Regardless of what you believe about their numbers - mistakes have been made. People have died. • Victims whose serious medical errors include celebrities are gaining lots of press. • Face it – the public demands perfection and jurors are willing to make people millionaires.

11. Who is not Being Sued? • Physicians who: • Oriented patients to the process. • Encouraged patients to tell their story. • Asked patients their opinions. • Let patients know they listened. • Used humor and laughed. • Had only slightly longer visits

12. Failure to Listen • Listen to the patient: he’s telling you the diagnosis.Sir William Osler, 1904 • Errors occur when physicians — confronted with a difficult diagnosis but feeling hurried — don't stop andlistento the patient, counting instead on a battery of tests to provide the answers they need.

13. Hazards of Not Listening • When clinicians lack communication skills: • Their ability to gather information is compromised. • They fail to engage patients in their own care (and thus have some responsibility for poor compliance with treatment regimens). • They conduct or order wasteful tests and treatments because problems are not accurately identified. • They are more likely to be involved in a malpractice claim or suit.

14. Diagnostic Error • Missed diagnosis is greatest source of error leading to claims/suits. • Includes both • Delayed/missed diagnosis of an underlying problem • Delayed/missed diagnosis of a complication of treatment. • An accurate initial medical diagnosis is the foundation upon which all subsequent healthcare decisions are based. • An error in diagnosis can cause a cascade of negative events to occur, which can affect the individual patient and their families, as well as the healthcare system and society as a whole. • Causes include • Miscommunication • Offhand handoffs • Cognitive bias • Technical error

15. Role of Bias • Humans prefer pattern recognition to calculations and are strongly biased to search for a “rule” before resorting to more strenuous reasoning. • Many of the identified examples of bias arise out of the initial diagnostic impression. For example: • Anchoring describes a bias to lock on to striking features in the initial presentation. • This, in turn, may lead to confirmation bias which occurs when results of subsequent diagnostic studies are marshaled to support the initial diagnosis. • A similar bias has been described as diagnosis momentum. Once diagnostic labels are attached to patients they become stickier and stickier.

16. Role of Bias • Physicians also come to different conclusions depending on how information is presented, or framed. • Much of diagnosis depends on information from other parties. Improperly framed data is often the foundation of clinician to clinician miscommunication. • For example, when the emergency physician labels a patient as viral URI when calling the PCP, orders may be left for that impression regardless of subsequent findings or complaints. • This may also occur during what we like to call “offhand handoffs.” • Not giving a complete context to the illness can contribute to an improperly framed diagnostic picture leading to a delayed or missed diagnosis.

17. Who Dropped the Ball? • Rarely are diagnostic errors attributable to a single cause but are more likely to be a cascade of small errors. • A good example is failure to follow up on abnormal diagnostic test, especially in outpatient care settings. • One study found that 75% of physicians did not routinely notify patients of normal test results and • 33% did not always notify patients about abnormal test results. • Juries expect the referring physician to be aware that results are pending and feel they should track them down in a timely fashion.

18. Creating a Fail Safe Process:Critical Test Results • Identify to whom test results should be sent. (Who ordered the test?). • Define which results require expedited, reliable communication and maintain a prioritized list of critical test values. • Define appropriate notification time parameters for communicating critical test results. • Identify reliable communication methods. • Ensure acknowledgement of receipt of test results by a provider who can take action. • Develop a fail-safe plan for communication of critical test results when the ordering or covering physician cannot be reached. • Create tracking systems to measure reliability of the system.

19. Creating a Fail Safe Process: Critical Test Results • The role of the patient • Avoid the traditional “No news is good news” philosophy. • Patients/families should be anticipating results and prompt clinicians when no news is received. • This should NOT however be the primary criteria for communication – merely a backup for formalized plans of communication.

20. Case Study • Newborn noted to be jaundiced; bilirubin ordered 24 hrs after birth • Infant released to home with mother; no report was ever given to mother on lab value • Newborn’s aunt who worked at hospital scrolled through lab results and noted a panic value of >35 several days after the infant’s discharge • Notes in the lab indicated the panic value had been reported, but were unclear who they spoke to and which office was called • No follow up or tracking had been initiated by the ordering physician’s office

21. Medical Error – A Team Effort • While an allegation will seldom read “poor teamwork” there are many claims where delayed diagnosis or other medical errors can be traced to poor coordination of care or miscommunication. • One large insurer noted 300 claims involving inadequate communication or coordination of care issues paid out over $100,000,000 in the last decade. (Forum, Harvard Risk Management Foundation, 7/03) • Miscommunication in these cases often occurs at some point of “hand-off” – often across disciplines.

22. Medical Error - A Team Effort • The need for a structured handoff process was prompted by several studies that focused on the root causes of sentinel events and poor medical outcomes across the continuum of care. • These revealed that a majority of avoidable adverse events were due to the lack of effective communication and involved: • Lost information • Misinterpretation • Misdirected or missed actions.

23. Effective Handoffs/transitions • Provide for interactive communications which allow the opportunity for questioning. • Include up to date information regarding treatment, services, condition and any recent or anticipated changes. • Face to face. • Name names. • Interruptions limited. • Process for verification. • Receiver has opportunity to review relevant patient historical information including previous records.

24. Encourage Briefings • Handoffs • Shift change • Significant new information • Situational • S-B-A-R • Situation • Background • Assessment • Recommendation

25. SBAR example: • Situation: Dr. Brown? I’m Mary Smith the med student on 2 West. I want to talk to you about Mrs. Jones in room 251. Chief complaint is shortness of breath of new onset.” • Background: “She is a 72 year old woman first day post op left hip replacement. No prior history of cardiac or lung disease.”

26. SBAR Example • Assessment: “Breath sounds are decreased on the right with pain. I’d like to rule out pulmonary embolus.” • Recommendation: “I feel strongly the patient should be assessed now. Would you come with me to see her?”

27. Perfection Not Possible • “For every medical intervention there is an expected outcome. But there’s also the possibility for unintended consequences. • While it’s comforting to believe modern science can perform miracles, the reality is that human bodies often react in unpredictable ways – even when the treatment is standardized and evidence based.” Woods, Michael, Healing Words – the power of apology in medicine, 2004, Doctors in Touch.

28. Facing the Unexpected • Not every adverse outcome involves error but every unexpected outcomewarrants an explanation. • Unanticipated outcome without error • Unanticipated but known complication not timely diagnosed • Unanticipated outcome with medical error

29. Disclosure or Apology? • An appropriate, timely, well crafted apology is just one part of an effective disclosure discussion, but often the most meaningful to the patient and family.

30. Practice Makes Perfect • If doctors are consistent with apologizing for the small things: • I’m sorry you had to wait today. • I’m sorry there was a delay in calling in your refill. • I’m sorry your injection hurt more this time. • I’m sorry you have been having a lot more pain with your arthritis. Let’s see what we can do to get you more comfortable.

31. Practice Makes Perfect Practice Makes Perfect • It will be less difficult to say I’m Sorry for the more significant occurrences. • I want you to know how sorry I am that you had the reaction to your medication. That drug is related to penicillin and I somehow failed to notice your allergy before prescribing it. • We have built additional safeguards into our system so it won’t happen again. Please accept my apology! I’m so glad you are feeling better now.

32. No One Size Fits All • Not all apologies are created equal. • Empathetic: Benevolent expression of sympathy for the situation. “I’m very sorry that you and your family have been through this difficult experience.” • Admission: Apology that suggests fault. “I’m so sorry that I did not have the nurse bring those lab results directly to my office when she first got them so I could have gotten you to the hospital sooner.” • It’s important to know which is appropriate in a given situation.

33. What Not to Disclose • Self-critical analyses – “I don’t know why I missed that, I should have paid more attention.” • Peer review activities – “We talked about this last night at our medical staff meeting.” • Disciplinary Actions – “The nurse is already on probation; I’m sure she’ll be fired.” • Consultations with attorneys or those acting under attorney’s direction, or your liability insurer. – “My insurance carrier (or attorney) said to give you whatever you need.” • Your opinion that someone else is at fault. • Better to have a conversation rather than writing a letter. “I received your letter Mr. Smith – when would you like to come in to discuss your concerns?”

34. And the I’m Sorry Legislation? • Primarily increases the comfort level for a process that should probably have occurred anyway. • Does not excuse inappropriate, overstated or premature expressions of guilt used simply to clear a physician’s conscience. • In other words - don’t try this without a net. • Risk management advice and education provides a safety net for the process of a fitting apology.

35. Systems Failures Systems Failures • Office/Clinic • No-shows • Diagnostic Reports • Return Visits • Referrals • Any area where things may traditionally “Slip through the cracks.” • Multiple providers - who is in charge?

36. Many Faces of the Medical Record The Many Faces of the Medical Record • Method of clinical communication and care planning among physicians and other healthcare practitioners • Protection of the legal interests of the patient, healthcare practitioners, and facility • Basis for evaluating the quality of care • Clinical data for research and education • Supporting documentation for reimbursement

37. In the event of a Lawsuit... • Descriptions written in the medical record at the time of an event are more credible than record entries that are written later or than testimony based on memories of witnesses. • Your memoryof an event, where it differs from the medical record, is unlikely to be persuasive.

38. The Defensible Medical Record • Accurate • Credible • Professional • Clear Picture of events • Available for trial

39. Credibility Gaps To Avoid • Illegible/messy entries • Appearance of an altered record • improper corrections • writing outside the boxes • improper late entries • lack of security in an electronic system • Inconsistent timing of notes • Nurses’ notes inconsistent with Physician notes • Entries not signed or initialed

40. More Credibility Challenges • Altering or Destroying Records • Never, never destroy or rewrite and replace a prior record. • If a prior record entry must be changed, line out the material to be deleted, then initial and date the change. • As an alternative, a new note may be made referring to the prior content. • Late entries must be identified as such, and dated and timed when they are added.

41. Electronic Medical Records • They have the capability to improve care, promote patient safety and encourage appropriate documentation. • Issues to watch for: • With automation, thinking may stop • Templates may reduce important documentation • Interference with eye contact / listening • Useful systems may be lost in transition

42. More about EMRs… • Watch out for “auto-population” • Case example: pt seen for sx of cold; template “auto-populated” all incomplete areas with “WNL” including a body part that was congenitally missing. • Back-up capability is vital • Monitor the integrity of the system • How can the legal record be defended if changes can be made- obliterating or destroying the original?

43. EMRs and SecurityEMRs and Security • Authorized users only • Access only to those portions of record required • Automatic log-off when not in use • P&P for laptops and PDAs • P&P re: transmission of info • Confidentiality statements • No inappropriate sharing of information • No sharing of passwords

44. Can you say “Metadata”? • Plaintiff attnys may request raw data for analysis • Typically hidden from view by users • May show times of log-in, what part of rcds were reviewed and for how long • May show addition/deletions • These “footprints” are now the focus of many cases

45. Medication Management • Document reasoning process for decisions • Follow up carefully • Communicate and document all warnings, risks, benefits, instructions • Update medication lists on a regular basis • Watch for signs of dependency; consider referral to pain management specialist

46. Case Example • Pt was 75-year old man with emphysema, high b/p and lung cancer. Meds: oxycodone, metolazone, prednisone, Flomax, K, Paxil, oxazepam & flurosemide. • No documentation of warnings about side effects, and potential effect on ability to drive. • Pt had no c/o of side effects or difficulty driving. • Pt lost consciousness one afternoon while driving and killed a 10 yr old on sidewalk. • Mtr sued alleging failure to warn pt about drug side effects.

47. Case Example • Plaintiff’s expert opined that the patient’s medications, when used in combination, had the potential to cause “additive side effects” The expert further opined that the sedating effects of the drugs the patient was taking may have been more severe due to the patient’s advanced age. In this expert’s opinion, the accident was caused by a combination of the patient’s medical conditions, his age and the meds he was taking.

48. Risk Management Highlights • Communicate, communicate, communicate. • Document, document, document. • Systems, systems, systems.

49. Questions?