10.04.30 dental society

8/7/2019 10.04.30 Dental Society

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Montana Dental Association

Medical-Legal Issues

Larry E. Riley, JD

A. Craig Eddy, MD, JD, FACS

4/30/2010

garlington|lohn|robinson

(406) 523-2500

[email protected]

[email protected]


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Type of Suits or Issues

Medical Office Might See

Employee / HR SuitsWrongful Discharge from Employment Act

Employment Discrimination

Malpractice

Regulatory IssuesMontana Board of Dentistry

Slip and Fall / General Liability


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Ounce of PreventionBest Insurance is not for Sale

Communication with patient and staff

Rapport

Listening

Attitude

Not Rude and Rushing

Good Charting - Medical and HR


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They will remember howyou made them feel

They may not remember what you said


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Human Resources

- For Office Practices

Montana is Employee Friendly

Employer Unfriendly

It is not an employment at will state

AfterProbationary period can only fire for

good cause

Employment cases are very expensive


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Prevention - HR Good Office Policies

Make sure handbook is available

Follow your policies Under WDEA otherwise lawful termination is

wrongful if you dont follow your own policies ondischarge and termination

Good Communication

Fair and Even Handed

Address Workplace Issues Promptly Hostile work environment

Harassment gender and otherwise

Use Checklists Termination

Discipline


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Job Descriptions

Business reason why the job exists

Qualifications

Primary duties/essential functionsReview on an annual basis

Use as measuring stick for annual

evaluationsExempt or Non-exempt

Probationary period - 6 months


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Employee Policies

No Discrimination/Harassment

Grievance Procedure

Workweek defined

Payment of final wages: next payrollday or within 2 weeks of last day,whichever is sooner

No expectation of employee personalprivacy when using practice

computers/phone/faxAcknowledgement of Understanding

Ability to extend probationary period ifnecessary


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Wage and Hour Issues

Wage and Hour / FLSA

ExemptAdministrative, Executive,Professional (with special rules for

IT employees)|

Employee v. Independent

Contractor


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Wrongful Discharge

What Constitutes a Wrongful Discharge? Discharging an employee for refusing to violate public

policy or in retaliation for reporting a violation of publicpolicy

Discharging an employee without good cause

Discharging an employee in violation of the employerswritten personnel policies

What Constitutes a Legitimate Discharge? Legitimate economic reasons

Disciplinary / Performance concerns

During a probationary period of employment, theemployment may be terminated at the will of either theemployer or the employee on notice to the other for anyreason or for no reason


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Wrongful Discharge Damages

Up to 4 years lost wages & fringe benefits + interest, calculatedfrom the date of discharge

Fringe benefits Employer-paid vacation leave & sick pay

Medical insurance

Disability & life insurance benefits

Any pension plan pay

Award is discretionary

NO emotional distress, pain & suffering, or other compensatorydamages

Employee has a statutory duty to mitigate his or her damages Employees earnings or earnings an employee could have made

may be deducted

IF employee was discharged for refusing to violate public policyor in retaliation for reporting a violation of public policy the employee may seek punitive damages.


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Discrimination:

1. The act of discriminating.

2. The power to recognize or draw finedistinctions.

3. Treatment or consideration based on class

or category rather than individual merit;

partiality or prejudice.Am. Heritage College Dictionary (3d ed. 1997)


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Why shouldemployers be

concernedaboutdiscrimination?

Exposure to liability Damages for front pay and back pay

Damages for emotional stress

Punitive damages (federal claims only)

Attorneys fees

T

ransaction costs highBad Publicity

Lost Productivity


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THE PROTECTED CLASS

DISABILITY

RACE/

COLOR

NATIONALORIGIN/

CITIZENSHIP

RELIGION/

CREED

AGE GENDER


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Howdoesdiscrimination

occur?

DISPARATE TREATMENT

DISPARATE IMPACT

FAILURE TO ACCOMMODATE

RETALIATION


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Age Discrimination

Age Discrimination in Employment Act 1967

40 years or older

The Older Workers Benefit Protection Act of1990 (OWBPA) amended the ADEA tospecifically prohibit employers from denyingbenefits to older employees.

Employers are permitted to coordinate retireehealth benefit plans with eligibility forMedicare or a comparable state-sponsoredhealth benefit.


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Whatconstitutes Sexual

Harassment?

Unwelcome sexual advances,

requests for sexual favors and

other verbal or physical contact ofa sexual nature constitutes sexual

harassment when:

it is a condition of employment;

it is a consequence of employment;

or

it is an offensive job interference.


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HARASSMENT FACTS

The victim or harasser may be a man or a woman and

does not have to be of the opposite sex (or a different

protected status)

The harasser may be a supervisor, a co-worker oreven a non-employee.

The victim does not have to be the person harassed,

but could be anyone affected by the conduct.

|

Actionable harassment may occur without economic

injury.

The harassers conduct must be unwelcome to the

victim.


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Whenisthe employerliable for

discriminatory harassment?

Was conduct based on aprotected status?

Was conduct objectionableto the victim?

Was conduct severe or

pervasive?

HARASSER ACTED AS AGENT FOR

EMPLOYER= LIABILITY


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AGENCY LIABILITY

For actionable harassment, there is

no liability if:

The employer exercised reasonable

care in preventing the harassmentThe employee failed to take

advantage of corrective

opportunities.

For actionable harassment, there is no

liability if:


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Reasonable Care =

ake it clear that discrimination or harassment is not

tolerated. Define prohibited conduct broadly/ plainly.

Simple and direct complaint procedure- include

alternative complaint paths.

Measures that instill confidence and candor.

Make it flexible. Enforce it!!!!

ANTI-HARASSMENTPOLICY


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HANDLINGSEXUALHARASSMENT

COMPLAINT

S

Remember:You must have good cause to terminate a

non-probationary employee!

Do a reasonable investigation- Document!

Take proportionate action, but dont make

promises you cant keep.

Involve the alleged harasser and victim.

Follow your Anti-harassment Policy.


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SIMPLE TIPS FOR AVOIDING

HARASSMENT CLAIMS

Do a thorough job hiring

employees.

Think before you hit the

send key. Separate work and play

Avoid idle time.

Create a positive workenvironment.


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Malpractice Issues


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General principles of liability

Good News Non-physicians have minimal personal risk

Generally Employees

Respondeat Superior

Captain of the Ship Doctrine Now somewhat in question

DeeperPockets Available

Generally have good family relationships

Bad News Ticket to deep pockets of hospital

Captain of Ship Doctrine Eroding


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General principles of liability

Duty: Arises in 4 main ways Common Law

Legislation

Regulatory (CMS, JCAHO) Hospital and Nursing Policy

Breach (Negligence)

Causation (Connects Breach and Damages)

Damages


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Duty, Breach, Causation,

Damages

Plaintiff has Burden ofProof

Preponderance of Evidence

All Elements must be proved


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Montana Medical-Legal Process

Filed and Heard by Medical Legal Panel

Filed State or Federal District Court

Discovery

Expert Witnesses

Mediation

Trial


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Truth Facts Justice

Illusive - Not Black and White

People see, perceive and rememberthe same event differently


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Potential Problems Causing Litigation

Criticizing other health care providers

Altered Records

Different people have different perceptions

Dentistry is not an exact scienceDentistry constantly improving (changing)

Jurys view through the retrospectoscope

What is reasonable in an unusual event?

Battle of Experts

Watch out for the ordinary task The kind you do without thinking


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Dental Malpractice Claims WillAlways Exist

To err is human

Bad Providers

Unpredictable events

Catastrophic Outcomes

Interpretation of Standard of Care

Provider Impairment

Systems Fail

Money involved


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Points of View in a Malpractice Claim

Patient

Incident report

Dentist

Peer Review

Administration

Insurance

Company Plaintiff Lawyer

Defense Lawyer

Experts

Med Mal PanelMembers (6)

Judge Jury (12)

Supreme Court

Board of Dentistry

CriminalInvestigator


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Medical Record Introduction


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Medical RecordPurpose

Accountability

Communication to other providers Sequential picture of patient

Memory of facts 5-10 years laterResearch

Satisfaction of Legal and Practicestandards

Reimbursement Education


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How Bad Charting Hurts

What poor documentation allows the

plaintiff to do

Your word against theirs

Patient Recall Generally Poor They can confabulate, you cannot refute

Duke Study in 2003

Australia Study in Radiology 2003

If they have had any poor result jury may

be sympathetic


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How Good Charting Helps

Never any question of facts or

times

Demonstrates to jury

Expertness

Trustworthiness

Professionalism


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Elements ofEffective DocumentationMedical Record Mandatories

Use a commonvocabulary.

Write legibly andneatly.

Use only authorizedabbreviations andsymbols.

Employ factual andtime-sequencedorganization.

Document precisely,accurately andcompletely,including any errors.

Dated and Timed

Explain Late Entries

Objective andwithout editorials

Unaltered


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What if Medical Record

Incomplete??

3 File Drawers of Information

What is Written Down

What You Actually Remember

Usual Custom orPractice


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Medical Record Pitfalls


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Medical Record Pitfalls

Non-Standard Abbreviations

Erasures, Overwrites or

WhiteoutsUnexplained Late Entries

Ink that does not photocopy

Negative Editorial Comments


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Example of a Poor Medical Record


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Example of a Poor Medical Record


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Electronic Medical Record

Pointers

Dont depend on drop down menus

Use the comment section liberally

Be sure to have somewhere to scan orsomehow capture extra pieces of

paper

Be sure to justify late documentation


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Apology and Montana Law

The Montana law

Understanding thedifference betweenan expression

sympathy and anapology.

An effective and welldone apology is

powerful medicine.

The lack of anapology generatesincredible anger.


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What to do in case of Lawsuit

House of God: Take your own pulse first

Get Help

Talk to your employer immediately

Seek good counsel

You are out of your element

Do not admit anything immediately

Never talk alone

Dont sign anything


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Requests from the Audience

Patient Dismissal

What to do in a Medical Emergency


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Questions?


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Conclusion

The Hard Things in LifeThe Trauma of Being Sued

Options if you dont like something

Change the thing Change your attitude

Happiness Belong to people

Accept pain Know you make a difference

Dont pursue happiness: do the things that create it


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Conclusion

Joy comes from ourinside and itsours if we havethe will to find it

Tragedy is a humanlegacy

Joy is a humancreation

Leon Uris

Life is mostlyfroth and bubblebut two thingsstand like stone

Kindness inanothers trouble

Courage in yourown

Adam LandsayGordon


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Three Poems to Share

People Who Take Care

Hippocrates Child

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