The Changing Landscape

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1 The Changing Landscape and J a r r o d M a l o n e, J D

2 WHAT WE WILL TALK ABOUT TODAY Medical and legal issues for physicians best practices Reducing liability

3 Medical Malpractice

4 MEDICAL AND LEGAL ISSUES MEDICAL MALPRACTICE Negligence Definition The failure to use reasonable care A person may be negligent by acting or by failing to act. A person is negligent if he or she does something a reasonably careful person would not do in the same situation, or fails to do something a reasonably careful person would do in the same situation Indiana Judges Association, Indiana Model Civil Jury Instructions, Instruction No. 1505

5 MEDICAL AND LEGAL ISSUES ELEMENTS OF A MEDICAL MALPRACTICE CASE Duty Breach Harm

6 MEDICAL AND LEGAL ISSUES ELEMENTS OF A MEDICAL MALPRACTICE CASE Duty Standard of Care Degree of care, skill and proficiency which would be exercised by an ordinarily careful, skillful and prudent physician under the same or similar circumstances Established on a case-by-case basis Nursing standard of care evolving to increase responsibility of nurses

7 MEDICAL AND LEGAL ISSUES ELEMENTS OF A MEDICAL MALPRACTICE CASE Breach Standard of Care Failing to act according to the standard of care A continuum of decisions Determination considers what provider knew or should have known at the time care was rendered

8 MEDICAL AND LEGAL ISSUES ELEMENTS OF A MEDICAL MALPRACTICE CASE Harm Standard of Care Departure from standard of care that causes an injury Not all patient injuries are caused by a departure from the standard of care Adverse outcomes occur for a variety of reasons unrelated to malpractice (i.e. complicated procedure; poor prognosis; patient comorbidity; noncompliance, etc.)

9 MEDICAL AND LEGAL ISSUES ELEMENTS OF A MEDICAL MALPRACTICE CASE Contributory Negligence Patient precluded from recovering damages against negligent healthcare provider if his own negligence contributes to his injury Significant in cases involving: Patient noncompliance Patient s failure to provide complete and accurate information

10 MEDICAL AND LEGAL ISSUES INDIANA MEDICAL MALPRACTICE ACT Becoming a Qualified Provider Establish financial responsibility (maintain sufficient insurance) Pay annual surcharge to the Indiana Patient s Compensation Fund Hospital provides insurance coverage for employed physicians, but that does not preclude him from being sued Hospitals can be named in the place of employed physicians

11 MEDICAL AND LEGAL ISSUES STATUTORY LIMITS ON DAMAGES Medical Review Panels Selection Consists of One Attorney and Three Health Care Providers The Attorney Doesn t Vote. Any Party Can Request Formation of Panel. Each Side Nominates a Panel Member and Those Panelists Select a Third Member. Each Side Can Strike the Other s Nomination Two Times and Then a Striking Panel Will Be Appointed. IC , et seq.

12 MEDICAL AND LEGAL ISSUES STATUTORY LIMITS ON DAMAGES Medical Review Panels Practical Points Selection of a Qualified Panel Chair is Difficult. Requesting Formation of Panel is Rare. Parties Often Disagree over Panelist s Specialty. Parties Rarely Make Nominations Most Request the Panel Chair to Appoint Striking Panels. No Provision to Replace a Panel Member but Most Panel Chairs Will When a Conflict Exists. IC , et seq.

13 MEDICAL AND LEGAL ISSUES I.C STATUTORY LIMITS ON DAMAGES Health care provider s exposure is $250,000 per occurrence with $750,000 annual aggregate Caps on damages: $500,000 (before 1/1/1990) $750,000 (12/31/1989 6/30/1999) $1,250,000 (after 6/30/1999) Indiana Patient s Compensation Fund responsible for damages above exposure

14 Based on jury verdict information, Top filings by specialty Surgery Obstetrics MEDICAL AND LEGAL ISSUES MALPRACTICE CASES BY SPECIALTY THAT GO TO TRIAL Orthopedics Emergency Medicine Family Practice Cancer Diagnosis Cardiology

15 MEDICAL AND LEGAL ISSUES MALPRACTICE CASES BY SPECIALTY THAT GO TO TRIAL Actual Trials: Surgery Obstetrics Orthopedics Emergency Family Practice Cancer Dx Cardiology

16 MEDICAL AND LEGAL ISSUES JURY VERDICTS BY THE NUMBERS Indiana Malpractice Verdict Reports Patient win ratio increased from 31% to 34% between 2011 and verdicts in 2012 (down from 35 in 2011) 17 verdicts favored the provider 9 verdicts favored the patient Total 2012 verdicts was $10,210,000 (same as in 2011!) Average 2012 verdict was $392,692 (up from $295,446 in 2011)

17 MEDICAL AND LEGAL ISSUES YEAR PATIENT/PROVIDER VERDICT PATIENT WIN % (26) 34.6% (35) 38.8% (43) 39.5% (34) 38.2% (46) 45.7% (29) 31.0% (24) 29.2% (18) 38.9% (19) 42.1% (25) 32.0% (29) 34.4% (29) 48.2% (39) 38.2%

18 MEDICAL AND LEGAL ISSUES CAUSES OF PHYSICIAN MALPRACTICE ACTIONS 1. Inadequate assessment 2. Incomplete history and physical 3. Failure to formulate care plan 4. Untimely or delay diagnosis 5. Negligent fracture or trauma care 6. Untimely specialist consultation 7. Failure to perform treatment or procedure properly 8. Failure to obtain informed consent 9. Inadequate documentation

19 Best Practices

20 DOCUMENTATION BEST PRACTICES OVERVIEW Where is your liability? Attorneys who sue health care providers look for documentation problems Those attorneys target particular areas of charting There are ways to enhance documentation to reduce liability exposure

21 DOCUMENTATION BEST PRACTICES PRIMARY: PURPOSE OF MEDICAL RECORD Communication and documentation tool for health care providers SECONDARY: Evidentiary tool in legal proceedings Proof of the nature and quality of care More weight given to record vs. providers memory by jury Absence of documentation implies absence of care

22 DOCUMENTATION BEST PRACTICES PURPOSE OF MEDICAL RECORD What is the Legal Medical Record? HIPAA Indiana State law Meaningful Use Conditions of Participation Joint Commission

23 DOCUMENTATION BEST PRACTICES PURPOSE OF MEDICAL RECORD Indiana Law (a) "Health records", for purposes of IC 16-39, means written, electronic, or printed information possessed or maintained by a provider concerning any diagnosis, treatment, or prognosis of the patient, including such information possessed or maintained on microfiche, microfilm, or in a digital format. The term includes mental health records and alcohol and drug abuse records. (b) For purposes of IC (e), the term includes information that describes services provided to a patient and a provider's charges for services provided to a patient. (c) The term does not include information concerning emergency ambulance services described in IC (d).

24 DOCUMENTATION BEST PRACTICES PURPOSE OF MEDICAL RECORD Joint Commission The patient record should contain: The patient's name, address, date of birth, and the name of any legally authorized representative. The patient's sex The legal status of any patient receiving behavioral health care services The patient's communication needs, including preferred language for discussing health care The reason(s) for admission for care, treatment, and services The patient's initial diagnosis, diagnostic impression(s), or condition(s) Any findings of assessments and reassessments Any allergies to food Any allergies to medications Any conclusions or impressions drawn from the patient's medical history and physical examination Any diagnosis or conditions established during the patients course of care, treatment, and services

25 DOCUMENTATION BEST PRACTICES PURPOSE OF MEDICAL RECORD Joint Commission Any consultation reports Any observations relevant to care, treatment, and services The patient's response to care, treatment, and services Any emergency care, treatment, and services provided to the patient before his or her arrival Any progressive notes All orders Any medications ordered or prescribed Any medication administered, including the strength, dose and route Any access site for medication, administration devices used, and rate of administration Any adverse drug reactions Treatment goals, plan of care, and revisions to the plan of care Any advance directives Any informed consent, when required by hospital policy Any records of communication with the patient, such as telephone calls or Any patient generated information

26 DOCUMENTATION BEST PRACTICES CHARTING CONSIDERATIONS Provider Actions Relative to Patient Initial assessment and history Patient subjective complaints Ongoing assessments and observations Interventions Progress notes Orders Interaction with patient Treatment and procedures

27 DOCUMENTATION BEST PRACTICES CHARTING CONSIDERATIONS Provider Actions Relative to Patient (cont.) Patient response to treatment Pertinent statements made by patient Comfort/Safety measures Patient teaching Presence of family with patient Discharge summary Patient s condition Special instructions Follow up and home care

28 DOCUMENTATION BEST PRACTICES Harmful Patient Actions CHARTING CONSIDERATIONS Refusal of prescribed treatments Refusal or misuse of medications Failure to follow instructions or orders Incomplete or inaccurate history and status Behavior that inhibits care Use of unauthorized substances or devices Leaving hospital AMA

29 Electronic

30 BENEFITS OF EMR Information technology is recognized as an important tool for improving patient safety and quality care Chart availability Data organization Legibility Reduction in human error Safety and security Makes health care more efficient and less expensive

31 PROBLEMS OF EMR Increased provider time Computer down time Lack of Standards Point and click, drop-down menu and auto-populate capabilities foster erroneous data Cloned documentation Audit trail Threats to confidentiality

32 Problems

33 DOCUMENTATION PROBLEMS What We Tend To See Non-Specific charting Lack of objective data CHARTING CONSIDERATIONS Critical information sacrificed for efficiency s sake Emotional charting Failure to note outcome/result Informed consent issues Differential diagnosis

34 Charting Examples

35 CHARTING EXAMPLES At the time of onset of pregnancy, the mother was undergoing bronchoscopy

36 CHARTING EXAMPLES The prognosis is not poor, it is rotten. Talked with patient s wife. She expressed desire to have no more prolonging of patient s life. She would like him to pass on as soon as possible because she needs the insurance money.

37 CHARTING EXAMPLES Keratosis removed from forearm by defecation

38 CHARTING EXAMPLES The patient has been depressed ever since she began seeing me in 1993

39 CHARTING EXAMPLES The patient has no past history of suicide

40 CHARTING EXAMPLES Between you and me, we ought to be able to get this lady pregnant

41 CHARTING EXAMPLES On the second day the knee was better and on the third day it disappeared completely

42 CHARTING EXAMPLES Both the patient and the nurse herself reported passing flatus

43 CHARTING EXAMPLES Discharge status: Alive but without permission

44 Reducing Liability

45 REDUCING LIABILITY PRACTICAL TIPS FOR DOCUMENTATION Make sure each page is stamped with patient s identifying information Sign, date, and time and entry Use correct grammar and spelling Write legibly Use approved abbreviations Make entries factual, detailed and objective Document after providing care

46 REDUCING LIABILITY PRACTICAL TIPS FOR DOCUMENTATION Correct errors with a single line and write error Add information with addendum note Never alter or rewrite notes Differentiate between provider note and incident report Presume all notes and reports are discoverable

47 Questions?

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