DECREASING THE VOLUME AND SEVERITY OF NURSING FACILITY MALPRACTICE CLAIMS:

Transcription

1 White Paper on DECREASING THE VOLUME AND SEVERITY OF NURSING FACILITY MALPRACTICE CLAIMS: HOW A MEDICAL DISCLOSURE PROGRAM CAN WORK IN LONG TERM CARE by Tiffany Hoback Christine J. Gerace Johnson, MPA, NHA, PA-C November 2010 NEED LOGO NEED

2 INTRODUCTION Contents Introduction 2 Problem Statement 5 Solution 5 Benefits 8 Implementation 8 Summary 10 It seems you can t turn on the television anymore without seeing a commercial by one of your locally known attorney asking, have you or a loved one been injured in a nursing home? In a time when plaintiff attorneys are aggressively targeting nursing facilities for damages, it seems natural for a long term care (LTC) organization to deny, deny, deny that any accident or error has occurred. The fact is that LTC providers are increasingly involved in medical malpractice lawsuits. The question is why are so many lawsuits occurring? When looking closer at medical errors occurring in long term care facilities, the Office of the Inspector General (OIG) reported in September 2008 on Trends in Nursing Home Deficiencies and Complaints. This report states that more than ninety percent of nursing facilities were cited for violations of federal health and safety standards from Common deficiencies included: 1. quality of care, 2. resident assessment, and 3. quality of life. This report goes on to describe that seventeen percent of nursing facilities surveyed in 2007 were cited for actual harm or immediate jeopardy deficiencies. The category with the largest increase in citations from 2005 to 2007 was pharmacy services. This category addresses dispensing and administration of medications to nursing facility residents. The quality of care and resident assessment categories both increased over the same 3 year period as well. A New York Times article published shortly after the release of the OIG report infers that the primary indicators of the David Kahn, Chief Editor

3 substandard deficiencies were related to infected bedsores, medication mix-ups, poor nutrition and, abuse and neglect of patients. It goes on to mention that people receive better care at homes with a higher ratio of nursing staff members to patients. According to a 2004 Joint Commission on Accreditation of Healthcare Organizations (JCAHO) report on sentinel events in long term care, the root cause of such events falls into one of the following four categories (in order of highest occurrence): 1. poor communication, 2. inadequate training, 3. inadequate patient assessment, and 4. staffing and competency/ credentialing. Table 1 references the most frequently reported reasons for sentinel events. It was reported by JCAHO, the organization that accredits and certifies healthcare organizations and programs in the United States. Sentinel events are defined as: an unexpected occurrence involving death or serious physical or psychological injury, or the risk thereof. Serious injury specifically includes loss of limb or function. The phrase, "or the risk thereof" includes any process variation for which a recurrence would carry a significant chance of a serious adverse outcome. Such events are called "sentinel" because they signal the need for immediate investigation and response Table 1: Sentinel events most frequently reported* to the Joint Commission The Agency for Healthcare Research and Quality, a division of the U.S. Department of Health and Human Services, also proposes that errors occur more frequently due to flawed systems. For example, not having a system or process in place for verifying drug dosages and patient identification against the facility s medication administration record (MAR) could expose a provider to its nursing staff making unnecessary medication errors. Provider Magazine s cover story in its November 2010 issue highlights an increase in the number of malpractice suits being brought against long term care providers and the severity of jury awards. The article discusses a serious issue facing not just long term care providers but the healthcare industry in general. The link between staffing and care is the main topic in the Provider cover story, indicating that lawyers are aggressively pursuing cases where medical errors occur in facilities with lower staffing ratios. Malpractice suits are not only driving up costs to providers, they are tying up resources that could otherwise be used to improve resident care. AON Global Risk Consulting conducts actuarial studies of the cost of GL/PL (general liability and professional liability)

4 claims in the long term care industry. Their 2008 study indicated that the volume and severity of claims had stabilized nationwide. Using the 2007 data, the average GL/PL cost per bed was $1,460 compared to $2,030 in A more recent study issued by the firm indicates that the average cost has dropped even more to $1,270 in 2009 with average severity coming in at $135,000 per claim, compared to $138,000 in 2007 (See Table 2). This favorable decline can be attributed to several influences: 1. tort reform, 2. quality of care initiatives, and 3. the recent increase in defense of claims by LTC providers. Despite these positive trends nationwide, there are several states with significantly higher costs and incidences. This includes Arkansas, Tennessee and West Virginia (See Table 3). Table 2: LTC Benchmark General and Professional Liability Loss Cost per Occupied Bed (Limited to $1 Million Occurrence Overall) Table 3: LTC Benchmark General and Professional Liability 2009 Accident Year Loss Cost per Occupied Bed (Limited to $1 Million Occurrence Overall)

5 Signature HealthCARE (SHC), a LTC provider which operates approximately 30% of its portfolio in Tennessee, is aggressively looking at ways to improve their risk management program and thereby proactively reduce exposure. They are evaluating several medical disclosure programs implemented by various hospital systems across the United States. This paper aims to discuss what can be done by LTC facilities to proactively limit future exposure by implementing medical disclosure programs such as those adopted by many hospital organizations. PROBLEM STATEMENT The problem LTC facilities have is not only how to manage processes which minimize errors and prevent adverse events from occurring, it is how to communicate with affected residents and their responsible parties in such a way as to avoid unreasonably costly litigation when undesired outcomes occur. Hospital systems know all about this problem. According to the 1999 Institute of Medicine (IOM) report, To Err is Human, as many as 98,000 people die and 1 out of 25 patients are injured each year from medical errors that occur in hospitals. The national cost of preventable adverse events is estimated to be up to $29 billion. Medication-related errors occur frequently, affect an estimated 2 of every 100 hospital admissions and accounts for an estimated 7,000 deaths annually. The IOM s follow up report issued in 2006, Preventing Medication Errors, revealed that the average patient can expect at least one medication error per day in the hospital. Although these statistics are primarily hospital based, medical errors can occur in any setting, including long term care, where the resident population is already deemed higher risk for complications. SOLUTION As hospital medical disclosure programs continue to be highlighted in periodicals for their creativity, focus on quality improvement and positive financial impact, more LTC providers need to take notice. Many medical disclosure programs were identified during the research of this paper. Though most of the published programs are in the hospital sector, key elements and successes can easily be adapted to long term care (and may already have been). Some of the pioneers in disclosure programs are listed below. All have experienced positive outcomes from embracing medical disclosure programs. University of Michigan Health System Veterans Affairs Medical Center Lexington, Kentucky Virginia Mason Medical Center Seattle, Washington Kaiser Permanente Hospital System Geisinger Health System - Pennsylvania Park Nicollet - Minnesota Baptist Health - Miami, Florida Brigham & Women s Hospital Massachusetts Shands Memorial Hospital Gainesville, Florida Methodist Hospital - Nebraska University of Illinois Medical Center Chicago, Illinois Catholic Health Initiatives - Colorado, Ohio, Minnesota Children s Hospitals and Clinics of Minnesota COPIC Insurance Company - Colorado The following section highlights the key elements of the first three hospital systems programs.

6 Perhaps one of the most published disclosure programs is the one developed by the University of Michigan Health System (UMHS). They were one of the early adopters of the medical disclosure concept and published their program, outcomes and related materials on their website 1. The key elements in UMHS s program are: Three Guiding Principles 1. When unreasonable medical care causes harm, compensate patients/families quickly and fairly; 2. Vigorously defend medically reasonable care; 3. Reduce patient injuries by learning from patient experiences. Quality Improvement using the lessons learned to improve systems and minimize future incidents from occurring The flow chart of their model looks like the one below, with the investigation step being the most crucial. They empower their staff to speak up, suggest changes and alert management to potential problems. Many clinical improvements have been made as a result of reviewing incidents, complaints and near misses. Early identification through online reporting system and open relationships with plaintiff attorneys. Formal Investigation Process with risk management department available 24/7 to accept calls and s. Multi-disciplinary committee to review claims to determine whether the care provided was medically reasonable and/or had an adverse effect on the patient s outcome. Communication with patients/families Case resolution, including financial arrangements when deemed appropriate. In cases where a settlement has been reached, a confidentiality agreement to protect both the health system and patient/family is required. Data Sharing for improved risk management trending and reporting Results have been positive. Though the volume of incidents reported through the system has increased, the number of claims and lawsuits has dramatically declined, along with legal costs. Additionally, the severity of claims is much lower and the length of time it takes to resolve a claim is much shorter. Other benefits yielded from the implementation of the program include improved physician satisfaction and retention and open relationships with plaintiff attorneys. After losing two major lawsuits in the 1980 s that cost them in excess of $1.5 million, the leadership at the VA Medical Center in Lexington, Kentucky wanted to develop a better system to identify adverse outcomes 1

7 so they would not be surprised by lawsuits. The resulting process includes: Broad dissemination, education about disclosure policy Program is displayed on posters throughout hospital and new hires are oriented upon hire. Proactive reporting of potential errors Regular reminders provided to staff to report all safety issues either verbally, in person, electronically or written report. If medical records are requested by a patient s attorney, the risk management department conducts thorough internal review also. Prompt review and investigation Formal risk management committee in conjunction with interdisciplinary team reviews all documentation, conducts interviews and investigates all adverse events and claims. Notifying and meeting with patient/family If determined that malpractice or medical error prompted the adverse event, patient/family is notified by phone to come for an in-person meeting and advised to consult an attorney for open discussion of investigation process and/or findings. Full disclosure of error at in-person meeting If an error has occurred, key hospital leaders provide details of the event in a sensitive manner, express empathy for the patient/family; express regret on behalf of the institution and discuss corrective actions as appropriate. Compared to similar VA hospitals, the Lexington branch experienced lower claims costs and payout rates. From 1987 to 2002, the average payout was $14,500 compared to 6 figure averages for other VA facilities across the nation. (10) Inspired by Toyota s principles of preventing product errors, the leadership of Virginia Mason traveled to Japan to see it first-hand. They believed they could apply the same principles used in the auto industry to healthcare. Their goal is to be a defect free health care delivery system. According to their 2010 Quality and Patient Safety Facts made available on their website 2, Virginia Mason developed the Patient Safety Alert (PSA) system in 2002 which requires all staff who encounter a situation likely to harm a patient to make an immediate report to stop the line, much like Toyota s manufacturing line works. The key element in the PSA is that anyone can report a concern or incident. This has led to a significant culture shift where staff members are empowered to call PSA s for near misses, disruptive behaviors or anything else that may get in the way of providing safe care. From the system s inception in 2002 through last year, 14,604 PSA s were reported, which has allowed Virginia Mason to identify problems, fix them and ensure adverse events or near misses do not occur again. They cite that patient safety at VM has increased and medical claims have dropped thanks to the PSA system. Fair remedy, including compensation May or may not include outright monetary compensation, however fair settlement based on reasonable loss is the goal, when deemed appropriate. 2

8 BENEFITS OF MEDICAL DISCLOSURE PROGRAMS Key noted outcomes from these programs and Doug Wojcieszak s book, Sorry Works include: Patient Safety and Satisfaction Focus Providers should embrace a culture of 5 star customer service. The author of Sorry Works notes that anger from poor communication is the key driver of medical malpractice lawsuits. If providers focus on open communication with patients and families, thereby reducing their frustration and anger, they should reap other benefits such as reduced malpractice costs and improved public relations. We need to treat our residents and their loved ones exactly like we ourselves would want to be treated. Increased Staff Satisfaction Involving staff in identifying and resolving potential risks areas empowers them and makes them feel like a part of the solution, not just the problem. As mentioned earlier, most mistakes are a result of poor processes or systems. Who better than the staff to help improve those systems? Additionally, when an adverse event occurs, healthcare providers are victims, too. They typically suffer in silence, left to keep their feelings and remorse inside. Generally speaking, healthcare professionals don t set out to purposely harm others. Mistakes happen and it s critical that organizations support their caregivers through the disclosure process. This support during difficult moments can ultimately improve staff retention and loyalty. Quality Improvement As mentioned previously, the increase in awareness of potential adverse events may subsequently increase the volume of reported incidents, however, these also present opportunities for the organization to review those risk areas to prevent potential incidents from occurring in the future. The Virginia Mason example focuses on embracing zero defect concept and process improvement, much like Signature HealthCARE has adopted in its Signature Way process improvement model. Improving processes and systems reduces waste and inefficiencies, thus giving the healthcare providers more time to spend doing what they do best, care for the patient. Better Public Relations Isn t it true that when someone receives good service, they may tell a few people, but when they receive bad service, they tell everyone they know? Word of mouth is hard to fight. With consistent disclosure programs, healthcare providers should be able to build stronger relationships with patients and families after an adverse event. This goes back to good customer service. Think Ritz Carlton, Disney, Southwest Airlines. It is common for nursing facilities in a geographic are to compete for referrals. Getting a patient/family or hospital discharge planner to choose your nursing home over another is largely based on relationships. People want honesty. They want to know what the provider is doing to prevent future incidents. They want to know how it affects them. Being able to openly and effectively communicate with others builds trust. An adverse incident doesn t mean that trust has to be lost. IMPLEMENTATION In researching unconventional risk management programs, SHC first approached Doug Wojcieszak from the Sorry Works Coalition to present to its panel

9 of medical directors in September The Sorry Works principle is based on the following: 1. open communication with families after an adverse incident (to diffuse anger), 2. thorough investigation (to identify what happened and why), 3. prompt and regular follow up (keep the family in the loop), and 4. restitution when necessary. Although slow to be embraced and adopted company-wide, SHC has revisited the medical disclosure concepts implemented by various hospital systems and is applying their basic principles to the long term care industry. Signature HealthCARE s plan is simple and is in large part based on steps outlined in the book Sorry Works and from lessons learned from several hospital disclosure programs. The following steps are in order of priority: 1. Commitment is imperative a) Obtain the commitment of key leadership (Board, Senior Executives, Directors of Nursing, Legal, Administrators, Risk Managers, etc.) b) Develop an interdisciplinary committee to: move the concept forward, develop the policies and procedures, and participate in investigations c) Recruit teammates to build momentum and champion the way. 2. Formalize the Disclosure Policy and Procedure a) Adapt current hospital disclosure programs to LTC facilities, or b) Create an original program. It doesn t matter as long as it covers the basics and everyone remains committed. c) Consider current State laws governing disclosure and apologies 3. Communicate the Program Company-Wide stress importance and value of program to staff, patients and families a) Education, education, education b) Utilize varying options to communication this new program to the company from management and leadership to line staff. Staff Development coordinators can be trained as trainers at the facility level Role playing Multi media DVD, podcast, web-based learning platform 4. Create Disclosure Teams a) Select disclosure team members Interdisciplinary membership Should be philosophically committed to disclosure Able to communicate effectively under pressure b) Train the team members on communicating the how, what, when, why of adverse events

10 SUMMARY So, what can LTC providers do to minimize their risk of sentinel events and proactively prepare should one occur? Although consistency will be key to the successful implementation and continuation of any LTC medical disclosure program, recognizing that an error has occurred and admitting it to the resident and responsible party in a timely manner is the first step. Signature HealthCARE s mission is to radically change the landscape of long term care. This includes operating with transparency from the executive level to the local level. Signature recognizes that if they do not change their behavior and provide open communication in a timely manner, that which is not communicated will likely cause more harm to the provider in the long run. In nearly all of the case studies, articles and resources reviewed, including the several discussed above, there appears to be a direct correlation between decreased malpractice costs and implementation of a full medical disclosure program. While the volume of reported cases increases, the overall outcomes are more positive. With the current medical malpractice and regulatory environments remaining fairly aggressive, long term care providers must seriously consider radical change in managing their risk. RESOURCES Lawyers Baiting the Hook with Nursing Hours. Lourde, Kathleen. 2010, pp Long Term Care GL/PL Actuarial Study. s.l. : AON Global Risk Consulting, 2010, Institute of Medicine. Preventing Medication Errors. Washington, DC: National Academies Press, To Err is Human: Building a Safer Health Care System. Washington, DC: National Academies Press, Agency for Healthcare Research and Quality, Did You Know? Agency for Healthcare Research and Quality, Patient Safety Network. November 2, [Cited: November 2, 2010.] Trends in Nursing Home Deficiencies and Complaints. s.l.: Office of Inspector General, OEI Pear, Robert. Violations Reported at 94% of Nursing Homes. New York Times. September 30, The Joint Commission. UM Health System. UMHS Newsroom. University of Michigan Health System. [Cited: November 3, 2010.] AHRQ Health Care Innovations Exchange. AHRQ Health Care Innovations Exchange. Agency for Health Care Research and Quality. [Cited: November 3, 2010.] Team Medicine. Virginia Mason Medical Center Press Room. Virginia Mason Medical Center. [Cited: 11 3, 2010.] Wojcieszak, Doug, Saxton, James and Finkelstein, Maggie. Sorry Works! Disclosure, Apology, and Relationships Prevent Medical Malpractice Claims. Bloomington, Indiana: AuthorHouse, 2008.

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