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OUR VALUES Service Integrity Collaboration Respect Protection Washington Healthcare Access Alliance September 20, 2013 – Port Angeles, WA Understanding Professional Liability & Implementing Risk Management Presented by: Maggie Provine, Account Executive Cathy Reunanen, ARM, CPHRM, Sr. Healthcare Risk Management Consultant

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OUR VALUES Service Integrity Collaboration Respect Protection

Washington Healthcare Access AllianceSeptember 20, 2013 – Port Angeles, WA

Understanding Professional Liability & Implementing Risk Management

Presented by:Maggie Provine, Account Executive

Cathy Reunanen, ARM, CPHRM, Sr. Healthcare Risk Management Consultant

2

What we’ll cover today

• A little bit about Physicians Insurance and why we are here

• Medical professional liability• Risk management essentials• Confidentiality of protected health

information (PHI)

3

Physicians Insurance – who we are & why you might need us

• History Since 1982 NW based mutual company

• Physician owned & directed More than 6,900 physicians, clinics, and hospitals in Oregon,

Washington, and Idaho Largest insurer of private practice physicians in the Pacific

Northwest

• Practicing physicians are on the Board of Directors & on all committees

4

What Physicians Insurance provides

• Claims• Risk management• Sales, marketing, customer support• Agency

5

Volunteer providers & MPL coverage

• Volunteer Retired Provider Program (VRP)• Employed and volunteering

Be sure to verify that outside activities are covered• Hospital employed

Hospital may or may not extend coverage

6

Professional liability coverage

• Claims-made coverage• Covered services & acts

We will cover you for bodily injury or property damage arising out of direct patient treatment.

• Limits of liability $1 million/$5 million

7

Conditions of coverage VRP

• Notify us of incidents that may lead to a claim or a notice of a claim or lawsuit.

• Cooperate in all matters pertaining to this insurance.

8

Proposed entity coverage for WHAA

• What is it?• Acts or omissions• Vicarious liability of non-treating provider• Vetting of the employees• Coverage is on a shared-limit basis for all

clinics named as additional insureds• Covers supervision of non-employees

9

Legal elements of malpractice

• DutyProvider/patient relationship

• NegligenceBreach in the standard of care

• Injury to patient• Proximate cause

Relationship between alleged negligence and injury sustained

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Claims and lawsuits

• Claim: A verbal or written demand for compensation for an injury related to alleged negligence from medical treatment.

• Lawsuit: A written demand for compensation for an injury related to alleged negligence from medical treatment filed with the courts.

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Reporting a claim or lawsuit

• Contact your insurer immediately. We have in-take specialists who will obtain all of the pertinent information, walk through the process, and answer all initial questions.

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Common malpractice themes

• Clinical judgment in diagnosis or treatment• Procedure technique• Diagnostic delay• Failure to follow-up• Communication with patient• Coordination of care• System issues

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What else to report?

• Bad outcome:Neurologic injuryDeathBlindnessAmputation/wrong procedure/wrong siteDelayed or missed diagnosis

• Records request (out of ordinary)• It just doesn’t feel right . . .

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Statute of limitations and repose

• Effective in 2006, subject to some exceptions, a civil action for injury from health care must be commenced:Within three years of the act causing injuryWithin one year of the time that the patient

discovered the injury or should have discovered the injury, whichever is later, but

No more than eight years after the act causing the injury

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What happens when a claim is made?

• Contact your carrier. If it ‘s Physicians Insurance, we will help you through the process.

• A claims representative will review the circumstances and manage the claim.

• Managing the claim may include settlement. Settlement with insured’s consent

• The insured must cooperate in the defense of the claim.

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Evaluation of a claim

• Medical records review• Plaintiff• Defendant• Inflammatory facts• Attorneys

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What to expect when a claim is reported

• Admonitions reviewed (what to do & not do)• Claims representative (CR) assigned case• Defense counsel assigned case if lawsuit• Litigation support arranged if a lawsuit or indicated• Acknowledgement letter confirming the above• CR and defense counsel will arrange to meet with

the insured as soon as possible, generally after related records are received & reviewed.

18

Litigation support

• Lawsuits can be traumatizing for a physician • Over 15 years ago, Physicians Insurance created

a support program to help• The Director of Physician Affairs contacts the

defendant at the start of a lawsuit. It is a protected and confidential way a physician defendant can deal with the emotional impact.

• A supported defendant is a better self-advocate

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Risk Management

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Why patients become plaintiffs

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The reasons patients sue

• Dissatisfaction with treatment

• Patient / family anger

• Lack of communication

• Health care bills

• Provider attitude

• Control or revenge

22

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MD to JD - what they want you to know

• A large percentage of cases are won or lost on the basis (quality) of the medical record

• Document patient instructions and patient non-compliance

• Alteration of the medical record WILL be discovered and is ALWAYS fatal to your defense

Medical Economics April 4, 2008 Doctors who become lawyers: What they want you to know Mark Crane

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MD to JD - what they want you to know

• Document patient refusal of recommended care (informed refusal)

• Labs, consults, x-rays and other studies must be reviewed and marked - have a system

• Document provider/patient notification of study results and recommended follow-up

Medical Economics April 4, 2008 Doctors who become lawyers: What they want you to know Mark Crane

25

Medical record documentation

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Importance of documentation

• Plan for patient care• Often the most important evidence allowing

successful defense of a malpractice claim or lawsuit

• Poor records are the most often cited reason for settlement

• 35 to 40% of lawsuits are compromised by the medical record

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Charting issues in malpractice

• Illegible handwriting

• Insufficient information

• Medication issues

• Incomplete or missing entries

• Phone calls not charted

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Charting issues in malpractice

• Patient instructions not documented

• Delayed charting

• Patient noncompliance not charted

• No documentation of informed consent and patient education

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Rules of charting

If it isn’t in the chart, it didn’t happen.

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Clinical charting techniques

• Entries should be comprehensive enough to demonstrate clinical rationale for treatment

• Document so that in your absence a colleague could provide immediate, appropriate treatment with only your chart for assistance

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Clinical charting techniques

• Keep in mind that the medical record is an objective record of facts, impressions, clinical judgment and treatment

• Avoid pejorative, insulting or overly subjective remarks

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Good example

It is better to document that “the patient reports taking 30 Tylenol #3’s per day” rather

than “the patient is a drug abuser.”

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Not so good example

“Apparently your brother’s accusations are true. You are a malicious liar and a

drug addict.”

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Corrections and additions to the chart

Never alter the existing record in an attempt to deceive - it will be discovered and it is always fatal

to your defense!

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Looks like a normal blood pressure

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Or is it

normal ?

or

high stage 2 170/90 ?

37

Good words of advice

“A chart with poor documentation is always better than an altered chart. An

altered chart is worse than having no chart.”

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Electronic medical records

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Electronic medical records

• Benefits

– Allows for more detailed and complete documentation

– Has ability to prompt the provider regarding necessary follow-up

– Capacity for preventive medicine screening

– Provides audit trail

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Electronic medical records

• Downsides

–Can interfere with provider/patient communication

– Templates and preformatted text

–Date and time stamp feature

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Electronic discovery

• The electronic medical record is discoverable• Courts generally grant production of the native

files for forensic examination of the computer system

• Metadata– Data about the data– Shows what was viewed, created, changed and

when• iPhone and Blackberry

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EMR and the electronic trail

From a risk management perspective it is wise to interpret the “E” in EMR as “eternal”. Remember that all access,

changes, edits, or modifications to the patient record are recorded.

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Privacy & confidentiality

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Privacy rules• Uniform Health Care Information Act – UHCIA (1991)

• Health Insurance Portability and Accountability Act– HIPAA (2003)

• Health Information Technology for Economic and Clinical Health Act– HITECH Act (2009)

• Final Omnibus HIPAA Rule (2013)

46

HITECH Act – Final Omnibus HIPAA Rule

• New provisions–Business associates to comply with HIPAA– Increased monetary penalties–Criminal penalties for individuals–Patients share in fines collected–Breach notification rules–Nondisclosure of self-pay services–Patients can request electronic copy of PHI

47

Need to know

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Need to know versus curiosity

• Headlines in the news– “Everett Clinic fires 13 for looking at patient records”

– “3 Fired for Snooping on Electronic Health Records (EHR) of College Football Players”

– “It Was Just Me Being Nosy,” Claims Snooping Employee in UCLA Medical Privacy Breach

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Bottom line

If you need to know the information to do your job, you can access the information.

If you don’t,

STAY AWAY FROM IT!

Minors and disclosure

• Parents may access those records regarding general medical care.

• Parents may not access those records dealing with confidential treatment consented to by the minor unless the minor so authorizes.

Physicians Insurance A Mutual Company50

Minors and consent

• Age 18 is age of majority

• At age 18 full authority to consent to treatment and to control access to PHI

• Under age 18 limited rights to treatment and confidentiality

Physicians Insurance A Mutual Company51

When a minor may consent

• If married to a person 18 or older • Emancipation by court order (16 or older)• Emergency services • Minor parent may consent for treatment of his/her own

child • Abortion, birth control, pregnancy care at any age (at

provider’s discretion)• Sexually transmitted infections/ HIV/AIDS age 14• Outpatient alcohol/drug abuse age 13• Outpatient/inpatient mental health age 13Physicians Insurance A Mutual Company

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Who may consent for a minor?

• A guardian or legal custodian appointed by the court

• A person authorized by the court to consent to medical care for a child in out-of-home placement

• Parents of the minor patient • A person to whom the minor’s parents have

given a signed authorization to make health care decisions for the minor

Physicians Insurance A Mutual Company53

Who may consent for a minor?

• A competent adult representing himself or herself to be a relative responsible for the health care of such minor patient or a competent adult who has signed and dated a declaration under penalty of perjury stating that the adult person is a relative who is responsible for the health care of the minor patient. The declaration is valid for no more than six months from the date of declaration.

Physicians Insurance A Mutual Company54

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Reducing liability exposure

An emphasis on quality care, patient rapport, documentation, and attention to

administrative detail will reduce your malpractice exposure.

OUR VALUES Service Integrity Collaboration Respect Protection

Thank you!

Phone: (206) 343-7300 or (800) 962-1399E-mail: [email protected]

Visit us: phyins.com