montana dental association medical-legal issues
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Montana Dental Association
Medical-Legal Issues
Larry E. Riley, JDA. Craig Eddy, MD, JD, FACS
4/30/2010
garlington|lohn|robinson
(406) [email protected]@garlington.com
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Type of Suits or IssuesMedical 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 how you 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– After Probationary period can only fire for
good cause
Employment cases are very expensive
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Prevention - HRGood Office Policies
– Make sure handbook is available– Follow your policies
• Under WDEA – otherwise lawful termination is wrongful if you don’t follow your own policies on discharge and termination
Good CommunicationFair and Even HandedAddress Workplace Issues Promptly
– Hostile work environment– Harassment – gender and otherwise
Use Checklists– Termination– Discipline
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Job DescriptionsBusiness reason why the job existsQualificationsPrimary duties/essential functionsReview on an annual basisUse as measuring stick for annual
evaluationsExempt or Non-exemptProbationary period - 6 months
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Employee PoliciesNo Discrimination/HarassmentGrievance ProcedureWorkweek definedPayment of final wages: next payroll
day or within 2 weeks of last day, whichever is sooner
No expectation of employee personal privacy when using practice computers/phone/fax
Acknowledgement of UnderstandingAbility to extend probationary period if
necessary
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Wage and Hour IssuesWage and Hour / FLSA
Exempt—Administrative, 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 public policy
– Discharging an employee without good cause– Discharging an employee in violation of the employer’s
written personnel policies
What Constitutes a Legitimate Discharge?– Legitimate economic reasons
– Disciplinary / Performance concerns
– During a probationary period of employment, the employment may be terminated at the will of either the employer or the employee on notice to the other for any reason or for no reason
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Wrongful Discharge Damages Up to 4 years lost wages & fringe benefits + interest, calculated
from 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 compensatory damages
Employee has a statutory duty to mitigate his or her damages– Employee’s earnings or earnings an employee could have made
may be deducted
IF employee was discharged for refusing to violate public policy or 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 fine distinctions. 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 should employers be concerned about discrimination?
Exposure to liability– Damages for front pay and back pay– Damages for emotional stress– Punitive damages (federal claims only)– Attorney’s fees– Transaction costs high
Bad PublicityLost Productivity
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THE PROTECTED CLASS
DISABILITY
RACE/ COLOR
NATIONAL ORIGIN/
CITIZENSHIP
RELIGION/ CREED
AGE GENDER
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How does discrimination occur?
DISPARATE TREATMENT
DISPARATE IMPACT
FAILURE TO ACCOMMODATE
RETALIATION
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Age DiscriminationAge Discrimination in Employment Act 1967
40 years or older
The Older Workers Benefit Protection Act of 1990 (OWBPA) amended the ADEA to specifically prohibit employers from denying benefits to older employees.
Employers are permitted to coordinate retiree health benefit plans with eligibility for Medicare or a comparable state-sponsored health benefit.
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What constitutes Sexual Harassment? Unwelcome sexual advances,
requests for sexual favors and other verbal or physical contact of a 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 or even 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 harasser’s conduct must be unwelcome to the victim.
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When is the employer liable for discriminatory harassment?
Was conduct based on a protected status?
Was conduct objectionable to 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 harassment
The employee failed to take advantage of corrective opportunities.
For actionable harassment, there is no liability if:
Reasonable Care =
Make 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-HARASSMENT POLICY
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HANDLING SEXUAL HARASSMENT COMPLAINTS
Remember: You must have “good cause” to terminate a non-probationary employee!
Do a reasonable investigation- Document!
Take proportionate action, but don’t makepromises you can’t 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 work
environment.
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Malpractice Issues
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General principles of liabilityGood News
– Non-physicians have minimal personal risk• Generally Employees
– Respondeat Superior• Captain of the Ship Doctrine
– Now somewhat in question• Deeper Pockets 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 liabilityDuty: 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 of Proof
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 – JusticeIllusive - Not Black and White
People see, perceive and remember the same event differently
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Potential Problems Causing Litigation
Criticizing other health care providersAltered Records Different people have different perceptionsDentistry is not an exact scienceDentistry constantly improving (changing)Jury’s view – through the retrospectoscopeWhat is reasonable in an unusual event?Battle of ExpertsWatch out for the “ordinary” task
– The kind you do without thinking
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Other Issues
What is a “bad outcome”?– Unrealistic Expectations
• Miracle outcomes• Television Society
Sympathetic Patient
Undesirable Nurse or Doctor
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Dental Malpractice Claims Will Always Exist
To err is humanBad ProvidersUnpredictable eventsCatastrophic OutcomesInterpretation of Standard of CareProvider ImpairmentSystems FailMoney involved
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Points of View in a Malpractice Claim
PatientIncident reportDentistPeer ReviewAdministrationInsurance
CompanyPlaintiff LawyerDefense Lawyer
ExpertsMed Mal Panel
Members (6)JudgeJury (12)Supreme CourtBoard of DentistryCriminal
Investigator
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Medical Record Introduction
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Medical RecordYour Best Friend or Worst Enemy
Technical definition
Written evidence of:
– The interactions between and among health care professionals, patients, their families, and health care organizations.
– The administration of tests, procedures, treatments, and patient education.
– The results of, or patient’s response to, diagnostic tests and interventions
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Medical RecordPurpose
AccountabilityCommunication to other providers
– Sequential picture of patientMemory of facts – 5-10 years laterResearchSatisfaction of Legal and Practice
standardsReimbursementEducation
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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 HelpsNever any question of facts or
timesDemonstrates to jury
– Expertness– Trustworthiness– Professionalism
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Elements of Effective DocumentationMedical Record Mandatories
Use a common vocabulary.
Write legibly and neatly.
Use only authorized abbreviations and symbols.
Employ factual and time-sequenced organization.
Document precisely, accurately and completely, including any errors.
Dated and Timed
Explain Late Entries
Objective and without 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 or Practice
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Medical Record Pitfalls
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Medical Record Pitfalls
Non-Standard AbbreviationsErasures, Overwrites or
WhiteoutsUnexplained Late EntriesInk that does not photocopyNegative 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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Example of a Poor Medical Record
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Electronic Medical RecordPointers
– Don’t depend on drop down menus• Use the comment section liberally
– Be sure to have somewhere to scan or somehow capture extra pieces of paper
– Be sure to justify late documentation
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Lawsuit TriggersProviders who are sued the most
– Rude– Rushing– Failed to answer questions
Providers sued the least– Concerned– Accessible– Willing to communicate
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Apology and Montana LawThe Montana law
Understanding the difference between an expression sympathy and an apology.
An effective and well done apology is powerful medicine.
The lack of an apology generates incredible 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 immediatelyNever talk aloneDon’t sign anything
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Requests from the AudiencePatient Dismissal
What to do in a Medical Emergency
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Questions?
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ConclusionThe Hard Things in Life
The Trauma of Being Sued
Options if you don’t like something– Change the thing– Change your attitude
Happiness– Belong to people– Accept pain– Know you make a difference– Don’t pursue happiness: do the things that create it
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ConclusionJoy comes from our
inside and its ours if we have the will to find it
Tragedy is a human legacy
Joy is a human creation
Leon Uris
Life is mostly froth and bubble but two things stand like stone
Kindness in another’s trouble
Courage in your own
– Adam Landsay Gordon
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Three Poems to Share
People Who Take Care
Hippocrates Child