Avoiding The Traps That Lead To Liability. Stephen A. Frew JD Johnson Insurance Services, LLC

Transcription

1 Avoiding The Traps That Lead To Liability Stephen A. Frew JD Johnson Insurance Services, LLC

2 Legal Disclaimer The following presentation is a general discussion of risk management and FTCA considerations. It does not constitute legal or insurance advice. For specific legal advice consult your attorney. For insurance advice, consult your licensed insurance agent.

3 What is FTCA? Federal Tort Claims Act Provides insurance coverage to federal employees Creates a special process and court to hear these claims Extended to include FQHCs that meet the Deeming standards

4 Why FTCA? FTCA coverage saves FQHCs deductibles and insurance premiums for malpractice claims Stacks the deck in favor of clinics and physicians In return, FQHCs are required to spend a PORTION of the savings on RM and training of employees and staff You can lose your FTCA coverage if your clinic does not meet the RM requirements

5 New HRSA FTCA manual manualpdf.pdf

6 Nature of case

7 Issues Involved

8 FTCA is not perfect Malpractice only There are lots of Gaps and Traps Field inspection to verify compliance Annual re-deeming 100 clinics lost coverage last year

9 Scope of project FTCA coverage is limited to the performance of medical, surgical, dental, or related functions within the scope of the approved grant project, which includes sites, services, and other activities or locations, as listed in the grant application

10 This means If it is not clearly within the scope of your application, it may NOT be covered If you are going to add a new service, activity, or location you better add it to your grant or it may NOT be covered FTCA does not HAVE to approve an addition Coverage might be different for CHC or physician

11 Scope of Employment For actions to be within the scope of employment, and therefore to be covered activities, they must: 1. Be within the approved scope of the project, including sites, services, and other activities and locations 2. Be within the requirements of the job description, contract for services, and/or duties required by the covered CHC; and

12 Clinic Patients Only Occur during the provision of services to the covered CHC s patients

13 and, in certain circumstances, to non-health center patients. School based clinics -- with written affiliation agreement School-lined clinics not on school grounds written affiliation agreement Health fairs attract to health screenings Immunization campaigns Migrant camp outreach for purpose of intake screenings Homeless outreach shelters or street to conduct intake screening Hospital call or ED coverage as condition of staff membership Cross-coverage required by FQHC as part of afterhours arrangements with community docs Individual emergencies particularized determination recommended

14 GAPS IN FTCA COVERAGE

15 PRIOR ACTS MOONLIGHTING MANY PART-TIME SPECIALISTS GOOD SAMARITAN SEXUAL ALLEGATIONS VOLUNTARY ED COVERAGE PERSONAL PHYSICIAN CORPORATIONS TEACHING: OFFSITE, NON-CLINIC PATIENTS VOLUNTARY CROSS-COVERAGE OUTSIDE OF U.S. DIRECT PAY PATIENTS COMMUNITY VOLUNTEER SERVICES COVERAGE DISPUTES

16 Sexual claims Rapidly growing source of claims Insurance covers defense only FTCA does NOT cover at all Often providers are set up by patients Prevention Staff background checks Use chaperones Change providers if concerned Terminate patient if really concerned Be very diplomatic to avoid explosive situation

17 FTCA hot button issues -- Clinical policies and procedures for the following activities: Referral Tracking Hospitalization Tracking X-Ray Tracking Lab Result Tracking Triage Walk-in patients Telephone Triage No show appointments HIPAA privacy Medical record reviews Risk management education Clinical protocols Credentialing Peer review QA/PI

18 False Myths About Malpractice Most doctors get sued every 3 years Doctors get sued due to greedy patients Doctors get sued due to greedy lawyers Doctors get sued because they take hard cases Doctors get sued because they practice in bad areas Doctors get sued because they are poor clinicians Nurses are never sued People in rural areas don t sue

19 Risk Realties People don t need to be RIGHT to sue you, they just have to be ANGRY Even if you WIN the suit, you still LOSE No clinic can survive by offending patients The Patient includes family and friends

20 Best Administrative Practices Be on time Keep patients advised if the physician is running behind and offer to reschedule Allow enough time Rate doctors and staff on customer service commitment Don t hire people who don t smile Don t let people answer phones without special training Monitor your answering service performance Return calls

21 Little staff tricks that boost patient approval Always apologize for being late even if you are not Always introduce yourself by title and last name Always identify and greet each person in the room Always sit down when talking to the patient unless necessary for procedure or exam, then sit down Always look at the patient, not the computer NO MULTI-TASKING Get it done in one visit

22 It s ALL about COMMUNICATION Always ask about medical care, injuries, or hospitalizations since last visit Always let the patient finish what they have to say Always repeat back to clarify before anything else Assume that the patient has no medical vocabulary or knowledge

23 MORE TIPS Answer the patient s questions graciously and with solid information Don t give them the Doctor knows best type answer Always have the patient repeat back your instructions Give written (printed) instructions whenever possible Give information materials and online resources Always ask the patient if there is anything else before they leave

24 Risk Management Rule 3 Avoiding lawsuits depends less on how you cared FOR the patient than on how much the patient or relative believes you cared ABOUT them

25 Leading Office-Based Care Issues Failure to diagnose Failure to follow-up/refer Misdiagnosis Failure To Treat Involvement with illegal drug rx s Allegations of sexual impropriety Lack of informed consent Privacy Issues

26 HIPAA Rapidly growing threat It s more than a HIPAA violation it is malpractice for breach of confidentiality Avoid unnecessary discussions, comments, snide comments, medical humor around patients Know who is in the room Know who is authorized for information Don t take records off-premise Don t access files with home computers or with wireless connects that are not encrypted Don t take photos without consents Ban cellphones Don t run copies on the fly

27 What you need to remember Remember the more interesting, the more private Remember your job depends on confidentiality Know the rules for proper discussion of patient information Insist on proper authorization for any disclosure Keep your nose out of other people s files Do not take patient information out of the office unless absolutely necessary Do not access patient information from home computers or over wireless networks that are not secure

28 Records Security in the office All records should be returned to a locked security area when the office is closed. Do not allow records to be stacked around the office Require all computers to revert to screensaver mode automatically Require strong passwords for all computer access Do not store backup records on premises Put someone in control of records access

29 Telephone triage General rule: Don t give medical advice over the phone If you have to: Follow formal written protocol system approved for each doctor RN s only Generate written standard phone record on each contact and must go into record Assure the physician sees the phone advice When in doubt consider it an emergency

30 Questions and Answers