Transcript Your Next Patient Might be a Plaintiff

Your Next Patient Might be a Plaintiff
| Saturday, February 4, 2017| Hartford, CT
Eugene A. Cooney
Leah Nollinberger
Cooney, Scully and Dowling
Hartford, Connecticut 06106
© 2014 CMIC. All rights reserved. Confidential and proprietary.
• It is estimated that about 25% of all the
doctors in the United States get sued on an
annual basis. *
• It is also estimated that between 50% and
65% of all doctors in the United States are
sued at least once in their career. *
• Let’s work to change the odds …
* “When Good Doctors Get Sued”
Objectives
• Documentation:
– Impact of bad documentation on medical liability
• Electronic documentation
– Special problems that may create medical liability issues
• Common problem areas
– Recurring themes that result in medical liability claims
Anatomy of a Medical Malpractice Lawsuit
• Duty
– (Provider-Patient Relationship)
• Breach of Duty
– Violation of Standard of Care –what is it?
• Proximate Cause
– Did the breach of duty affect the outcome?
• Harm
– Plaintiff must prove the damages caused
What is “Standard of Care”
The standard of care is the prevailing view in the
relevant medical community about what is
acceptable and appropriate under the
circumstances.
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Your Medical Specialty
“Acceptable and appropriate”
Prevailing, predominant view
SOC varies with the circumstances
Biggest Issue in Lawsuit?
• The biggest issue in any malpractice trial is
– ________________?
Biggest Issue in Lawsuit?
• The biggest issue in any malpractice trial is
CREDIBILITY
Purposes of Documentation
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Medical
Regulatory
Compliance
QA/Risk Management
Billing
Connecticut Regulations
• 19a-14-40. Medical records, definition, purpose
• The purpose of a medical record is to provide a vehicle for: documenting
actions taken in patient management; documenting patient progress;
providing meaningful medical information to other practitioners should
the patient transfer to a new provider or should the provider be
unavailable for some reason.
• A medical record shall include, but not be limited to, information sufficient
to justify any diagnosis and treatment rendered, dates of treatment,
actions taken by non-licensed persons when ordered or authorized by the
provider; doctors' orders, nurses notes and charts, birth certificate worksheets, and any other diagnostic data or documents specified in the rules
and regulations. All entries must be signed by the person responsible for
them.
Documentation Issues
• Does bad documentation violate the standard
of care?
– Plaintiff’s experts: “yes”
– Defendants: Bad documentation may be evidence
of bad care, but bad documentation is not, in
itself, bad care.
COGENT
• “Cogent”:
convincing or
believable by virtue of forcible, clear,
or incisive presentation.
What are the goals of documentation?
A cogent note captures the important
elements of the encounter.
Deconstruct the medical encounter:
• Obtain information
– From the patient (Subjective)
– From examination and testing (Objective)
• Evaluate the information (Assessment)
• Develop a plan of care (Plan)
Where do most documentation failures occur?
Plan
Continuity of Care!
• What happens next?
• Who has the responsibility?
• What is the next provider’s role?
Where do most documentation failures occur?
Plan
Continuity of Care!
• What is the patient’s role?
• What must the patient look out for?
• What should the patient do if …
Where do most documentation failures occur?
Plan
Continuity of Care!
• No loose threads in management
Where do most documentation failures occur?
Plan
No cogent management plan!
• The cogent plan logically connects the plan with
each item in the history, examination and
assessment
•
Don’t plan a procedure without documenting the
indications
•
Don’t chart a symptom without documenting your response
•
Don’t document an assessment with a plan on how to
address it
Where do most documentation failures occur?
No Baseline Documented
Document patient functioning, preexisting
problems prior to intervention
• E.g., If there is a question about nerve
function prior to your procedure, obtain
neurological tests to document function
Where do most documentation failures occur?
Informed Consent
Four elements to be documented
• Nature of the procedure,
• Anticipated benefits,
• Material risks,
• Feasible alternatives
Where do most documentation failures occur?
Develop a
th
6
Sense
An instinct for self-preservation
• MORE documentation may be a good:
• e.g., you do a procedure on a patient with
diabetic, developing neuropathies and a
history on non-compliance
Documentation & Disclosure:
Important Opportunities for Risk Management
Good documentation:
• History
– thorough, complete. E.g., history of pain
– Quote the patient when appropriate
– Avoid “cut-and-paste” documentation.
Documentation & Disclosure:
Important Opportunities for Risk Management
Good documentation:
• Communications
– Document all communications
• With patient
• With other clinicians
– Include exact time/date, name of clinician, brief
summary of the reason for the call and the
response
Documentation & Disclosure:
Important Opportunities for Risk Management
Good documentation:
• Corrections
– Draw a line through, note initials and the date
• Late Entries/Addendum
– Document the time and date of the late entry
– Add the entry in the first available space in the
record
– Clearly identify it as a late entry
– Cross reference it to the original event
– Never after legal action taken
Documentation & Disclosure:
Important Opportunities for Risk Management
Bad Documentation
• Criticisms of other providers
• Do not use the medical record to address conflicts with
other providers or criticize another’s care
• Remarks, entries or discussion critical of prior care may
prompt patients to consider litigation
• Emotional or unprofessional entries
• Do not express emotion in your documentation.
• No entries that would end in an exclamation point!
Documentation & Disclosure:
Important Opportunities for Risk Management
Bad Documentation
• Derogatory or discriminatory remarks
– Avoid disrespectful or prejudicialcomments
– Include socio-economic information only if
relevant to care
– Many patients request copies of their medical
records, particularly if there has been a bad
outcome, and inappropriate comments may
trigger claims
Documentation & Disclosure:
Important Opportunities for Risk Management
Documentation Do Not’s
• Do not inappropriately alter existing records
– Can be tempting once patient threatens litigation
– Plaintiff’s attorney may have a copy of the record and
changes will be obvious
– Greatly harms credibility and ability to defend care
• Don’t chart ahead of time
– Something may happen to prevent you from giving care
that was charted. Charting care that wasn’t provided is
considered fraud.
• Don’t chart what someone else said, heard, felt or
smelled unless the information is critical
– Use quotations and attribute remarks appropriately
Electronic Health Records
Electronic Health Record
EMR Provider 1
EMR Provider 2
EMR Provider 3
EMR Examples
Benefits of EHR
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Improved legibility
Improved access
Reminders of tests and preventive services
Reminders of patient allergies and drug
dosages
• Ease of navigation through medical chart
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Source: Hoyt, Robert E., Health Informatics: A Practical Guide (6th Edition)
Dangers of EHR
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Incorporating paper records into EHR
Cutting and pasting incorrect information
Data breach
Auto-fill
Not reviewing prior notes as closely because
of auto-fill and cutting and pasting
• Focusing on the computer instead of the
patient
Malpractice claims- User error
Incorrect information in the EHR
16%
Hybrid health records/EHR conversion
15%
Prepopulating/copy and paste
13%
EHR training/education
7%
EHR user error (other than data entry)
7%
EHR alert issues/fatigue
3%
EHR/CPOE workarounds
1%
User factors contributed to 64 percent of EHR-related claims
Source: Troxel D. “Analysis of EHR contributing factors in medical professional liability claims.” The Doctor’s Advocate. The Doctors Company. First Quarter 2015.
Malpractice Claim- Cutting and Pasting
• January: Patient is a pleasant 28 year old woman who
comes to the office today and reports she has
progressed 32 weeks into her current pregnancy and
followed by her obstetrician. She is here today….
• February: Patient is a pleasant 28 year old woman who
comes to the office today and reports she has
progressed 32 weeks into her current pregnancy and
followed by her obstetrician. She is here today….
• October: Patient is a pleasant 28 year old woman who
comes to the office today and reports she has
progressed 32 weeks into her current pregnancy and
followed by her obstetrician. She is here today….
Criticisms of cutting and pasting
• A June 2009 editorial in the American Journal of
Medicine (AJM) called the copy and paste function of
EHR “one of the most egregious dangers of
electronic charting”
Source: Copy and Paste: A Remediable Hazard of Electronic Health Records, Siegler, Eugenia L. et al., The American Journal of Medicine
, Volume 122 , Issue 6 , 495 - 496
• 54% of progress note contents are redundant
Source: Wrenn Jesse O., et al. Quantifying Clinical Narrative Redundancy in an Electronic Health Record. Journal of the
American Medical Informatics Association. 2010;17(1):50.
• Problem lists don’t change
• Staff Copy Each Others' Notes and Errors
• Narrative function is lost
Claim- Data breach
• HITECH
• CryptoLocker Infection
• Lost hardware
EHR in Litigation
Potential pitfalls of EHR in litigation
• EHR data does not correspond to a paper
chart
• Excessive pages from cutting and pasting
• Use of templates that don’t correspond with
the patient’s condition
• Metadata
Metadata
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Logon and logoff times
What was reviewed when
How long records were reviewed
Changes made to the record- where and when
Late entries
Deleted Entries
Audit Trail Example
Event ID:
2055456
Userld
JMD
UserName Date/Time
Jane Good 12/11/2015
13:26
Action
CREATE
Location
60F
CDS
Yes
Event ID:
2055457
Userld
JMD
UserName Date/Time
Jane Good 12/12/2015
02:04
Action
LOCK
Location
60F
CDS
No
Event ID:
2055460
Userld
SGL
UserName Date/Time
Sheila Lack 12/12/2015
5:24
Action
READ
Location
52L
CDS
No
Event ID:
2055525
Userld
JMD
UserName Date/Time
Jane Good 12/12/2015
12:26
Action
MODIFY
Location
60F
CDS
No
Event ID:
2056001
Userld
SGL
UserName Date/Time
Sheila Lack 12/13/2015
11:01
Action
DELETE
Location
52L
CDS
No
Takeaways for EHR use
• Don’t let the convenience get the best of you
• Avoid cutting and pasting
• Pay attention to the information auto-filled by
the computer to avoid errors
• Focus on the patient in the exam room, and
double-check the record after
• Have a formula or standard for the
incorporation of old paper records into the
EHR.
•
Source: Avoiding Malpractice Dangers With EHRs, Karam, Lawrence, M., Podiatry Today , Volume 29 - Issue 1 - January 2016
Your Next Patient Might be a Plaintiff
| Saturday, February 4, 2017| Hartford, CT
Eugene A. Cooney
Leah Nollinberger
Cooney, Scully and Dowling
Hartford, Connecticut 06106
© 2014 CMIC. All rights reserved. Confidential and proprietary.
Common Liability Themes
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Follow-up Testing
Incidental Findings
Medication Reconciliation
Bad Handoffs
Disclosure Gone Wrong
Privacy Breach
Follow-Up Testing
Example 1: The patient skips an appointment
• A follow-up test (labs, imaging, colonoscopy) is
recommended within three months.
• Clinician gets initial information but instructs
patient to return in one month to handle followup.
• The patient “no shows” the follow-up
appointment.
• Patient returns a year later, or never comes back.
Follow-Up Testing
Remediation: Better Tracking
• Functionality in your EMR, which supports
tracking outstanding tests/screenings.
• An internal tickler system.
• “No-show” letters which plainly list
outstanding tests.
Incidental Findings
Example 1: No clear delineation of role to handle
incidental finding
• An imaging study is ordered to rule out a lung PE
following bariatric surgery.
• Incidental lung nodule is noted by radiologist in body
of a large impression.
• Resident, fellow, surgeon and PCP only informed by
this reference in the body.
• Even if saw reference, each assumed someone else
would tell the patient.
• No one picks up the phone.
Incidental Findings
Remediation: Inform Patient and Schedule Tests
Promptly
• If the finding is serious enough, you can’t assume
that someone else took care of it.
• If you are not the PCP, it might not be your role to
coordinate the test, BUT
– Document contact with patient.
– Document contact with PCP.
– Make sure finding is highlighted.
Medication Reconciliation
Example 1: Complex patients seeing multiple
providers and in-patient admissions.
• A patient with host of co-morbidities, seeing PCP
and several specialists.
• An in-patient admission for a surgical procedure.
• Medications are changed during in-patient.
• Following surgery, patient has a follow-up visit
with PCP and brings in hand several additional
prescriptions.
Medication Reconciliation
Remediation: Heightened Awareness Following
Discharge
• EMR tools
• If your practice involves transitions of care,
from sending or receiving end, think about
how you can get clearer about medication
changes.
• Pharmacy?
Bad Handoffs
Example 1: Covering physician takes a telephone call for
his surgical practice relative to an off hours report of
fever in post-operative surgical patient.
• Covering physician keeps notebook, forgets to enter his
note from the encounter into the EHR.
• No formal record of the telephone encounter, what the
patient reported, what was recommended.
• Practice has no idea what happened and how it may
impact decision making.
• Handoffs happen internally and externally
Bad Handoffs
Remediation: Structured Hand-off
• Best practice is template built into EMR for
handoff in variety of situations.
• Standardizing the expectations of handoff
• Period of Direct Communication
• Involve Patient in the Hand-Off if possible.
Privacy Breach
Examples:
• Physician tells patient she needs to be tested for
a disease in a crowded waiting room.
• Medical Assistant accesses her neighbor’s records
(a patient in the practice) and spreads gossip
about her STDs on Facebook.
• Physician stores unencrypted laptop in the trunk
of his car. While out to dinner, laptop stolen.
• EMR company demos software using live data,
posts to Internet.
Privacy Breach
Remediation:
• HIPAA Policies and Training need to be
documented.
• Social networking policies.
• If it’s not encrypted, you are probably in
breach.
• Avoid consumer email accounts.
• Where’s the BAA?
Disclosure Gone Wrong
Example 1: How Not to Handle a Disclosure and
Apology
• During the disclosure and apology, the nature of
the missed finding is provided to the plaintiffs
attorney. The hospital provides a full set of
medical records.
• After apologizing, the attending doctor then goes
on to point out that other physicians inside and
outside the facility also missed the finding.
Disclosure Gone Wrong
Example 1: How Not to Handle a Disclosure and
Apology
• The family takes the information and records, and
brings it to a medical malpractice plaintiffs
attorney who now brings suit against everyone.
• Later during depositions the family expressed
that they were immediately placed on the
defensive by physician’s comments about
everybody else who was to blame.
• The way it was handled, the disclosure actually
provoked suit!
Disclosure Gone Wrong
Example 2: How Not to Handle a Disclosure and
Apology
• Surgeon performs a spinal fusion at the wrong
level. He had the assistance of a radiology tech
who placed the marker on the intraoperative film
study.
• When meeting with family, he disclosed the
procedure was at the wrong level, but adds,
“because Radiology screwed up the
interpretation of the film and I was misled.”
Disclosure Gone Wrong
Example 2: How Not to Handle a Disclosure and
Apology
• The family becomes infuriated, as he never told
them he would be relying on a radiology tech to
operate at the proper level.
• In fact, this was not truthful as the surgeon also
viewed the films and agreed to the placement of
the marker.
• When the family filed suit, it was against the
surgeon only, as they felt he breached their trust.
Disclosure Do’s
Disclosure Do Not’s
• Be Prepared: Whenever
possible, speak to your risk
manager or insurer BEFORE
you have your disclosure
discussion
• Be Prepared: Anticipate the
difficult questions and have
answers ready in your mind
• Limit your statements to
what is known, not what
you suspect. Time may
prove you wrong!
• Express empathy &
sympathy for what they are
going through
• Do NOT “wing it”. Patients
are hanging on your every
word, you’ll make a mistake
• Do NOT make an admission
of wrong doing unless you
are prepared to settle a
claim
• Do NOT offer compensation
• Do NOT disclose to a
plaintiff attorney
• Do NOT be defensive
• Do NOT blame someone
else