Gerald F. Danaher, DDS, Past President of

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1 Dateine VOLUME A NEWSLETTER FOR -INSURED PHYSICIANS & FACILITIES Case Study: Setting a 2 Disastrous Case with Sef Insured Co-Defendants New Website 5 Reeased Surprise Visits from 6 Government Investigators and Agents Underwriting Update: 11 Teemedicine Resources Risk Management Tip: 14 Medication Regimen Adherence The Library: 15 Updates 13 NUMBER 2 Honored with Od Ironsides Fag Gerad F. Danaher, DDS, Past President of the Onondaga County Denta Society, recenty presented Robert A. Menotti, MD, President of Medica Liabiity Mutua Insurance Company (), with a United States fag. This fag few over the USS Constitution, affectionatey referred to as Od Ironsides, which was aunched in 1797 and is the odest continuousy active ship in the US Navy. The fag was presented at the regiona office in Syracuse, New York. Dr. Danaher thanked Dr. Menotti and for its continuous service and dedication in representing dentists throughout Onondaga County and New York State. Dr. Danaher referred to the skied, professiona work by staff in joint effort with the Society in order to provide the best iabiity protection avaiabe at the owest possibe premiums consistent with fisca responsibiity. Dr. Menotti conveyed his appreciation and thanks on behaf of the Company and its staff. He stated that was honored by Dr. Danaher s thoughtfu gift and noted Dr. Danaher s view echoes our beief that provides a superior eve of personaized service. Dr. Danaher, a Captain in the US Nava Reserve, obtained the fag and ship s coin on a recent visit to the USS Constitution, which is anchored in Boston harbor. The fag and mementos of the presentation wi be paced in a prominent ocation in s Syracuse office. fa 14 Dateine is pubished under the auspices of s Patient Safety & Education Committee, Donad J. Pinas, MD, Chairperson. Editoria Staff John Scott, Editor Frances Ciarduo, Esq. Katheen L. Harth Matthew Lamb, Esq. Robert Pedrazzi Donnaine Richman, Esq. Daniea Staone Linda J. Trentini, CIC Michae Zeffiro, Esq. Physician Office Practice Surveys: Findings and Recommendations Part I Bonnie Paskewich, RN Director, Long Term Care Faciities Risk Management Introduction As part of the ongoing Risk Management activities performed by Medica Liabiity Mutua Insurance Company (), 43 medica office practice surveys were conducted over the past two years. The offices surveyed incuded numerous primary care, surgica, and speciaty practices. The surveys focused on Mark Ambrose, RN Risk Management Consutant Risk Management severa areas, incuding: genera office appearance; personne; office protocos; biing/coection practices; medication contro; appointment scheduing; dismissa of patients from care; medica records; teephone coverage; continued on page 12

2 C ase Study The Probems with Setting a Disastrous Case with Sef Insured Co-Defendants Katheen L. Harth Regiona Caims Manager Medica Liabiity Mutua Insurance Company 29-year-od femae had a positive A pregnancy test in February She was seen by her obstetrician one month ater for bood work, a PAP smear, and confirmation of her estimated due date, or EDC, which was September 16, The next day, she went to the emergency department (ED) of Hospita 1 compaining of fever and spotting, for which she was evauated and discharged without any definitive treatment or workup. She subsequenty went to Hospita 2 four days ater, sti compaining of a fever. She was diagnosed with a vira syndrome and discharged. The next day, she returned to her obstetrician, who aso diagnosed a vira syndrome and prescribed Zithromax. The foowing day, the patient was admitted to Hospita 2. She was seen by an infectious disease consutant, who recommended TORCH studies. Athough her amniotic fuid eves were within norma imits, her obstetrician suspected that her membranes had ruptured, resuting in chorioamnionitis. Because of this concern, the physician discussed with the patient the possibiity of terminating the pregnancy, but she decined. The physician prescribed broad spectrum antibiotics and, when the TORCH studies were negative, the patient was discharged. Whie the patient was hospitaized, the report of the PAP smear performed at the patient s initia obstetrica visit was received by the obstetrician and was suggestive of herpes. She was advised of this resut at her next obstetrica visit in Apri. However, she and her husband denied having any herpetic esions. As a resut of this response, the physician took no further action. The pregnancy continued to progress normay. At her ast prenata visit with this obstetrician in June, her examination was within norma imits. Subsequenty, the patient requested her prenata records be transferred to another obstetrica practice. The patient was seen by her new obstetrician in Juy 2006, when she was at 30 weeks gestation. There was a positive feta heart rate. Her new physician sent bood to the aboratory for TORCH titers and other tests. Two weeks ater, the patient was admitted to Hospita 2 compaining of vagina spotting and decreased feta movement. She was admitted by her new obstetrician, monitored for severa days, and then discharged. Five days ater, she experienced eakage of amniotic fuid and, by the next morning, was in active abor. The patient was readmitted to Hospita 2. The obstetrician did not document in her abor record for tweve (12) hours. Fortunatey, the nurses notes documented each time her physicians examined her, when they augmented her abor with Pitocin, and when they ordered that an epidura be administered. That night, the patient had a norma spontaneous vagina deivery of a femae infant with Apgars of 9/9. Specimens sent to pathoogy confirmed the presence of the herpes virus in the umbiica cord and focay necrotizing chorioamnionitis. Whether these resuts were communicated by teephone to any of the physicians is uncear. On day three of ife, the newborn deveoped a rash. She was evauated by a neonatoogist, who suspected either herpes or a staphyococcus infection. He prescribed a course of IV Acycovir for 14 days. Despite this treatment, the rash remained. The infant was discharged ten days ater on ora Acycovir. When she was taken to her pediatricians for foowup after her discharge, they documented their concern that the infant had faied to thrive and prompty readmitted her to rue out herpes encephaitis. She was paced in a warmer, a umbar puncture was performed, and an IV started. Her cerebra spina fuid was negative after 48 hours. Whie there, she deveoped a urinary tract infection and was paced on additiona antibiotic therapy. Athough she was cinicay stabe, the aboratory advised the pediatrician that, due to an insufficient specimen, the poymerase chain reaction (PCR) test on the spina fuid from the umbar puncture had not been performed. However, despite this communication, the pediatrician did not perform a repeat umbar puncture unti the infant suffered seizures. This spina fuid was sent to the aboratory for a herpes cuture and sensitivity and PCR evauation. An MRI of the infant s brain taken shorty thereafter confirmed atrophy of the cortex, diated ventrices, a right arachnoid cyst, and edema of the brain reated to encephaitis. She was prompty transferred to a tertiary faciity. The chid is severey compromised. She suffers from hearing and visua 2 Fa 2014 Dateine

3 impairments, requires a feeding tube, is ventiator dependent, and has imited, if any, cognitive awareness. Her famiy commenced a awsuit against both obstetricians, her private pediatricians, Hospita 2 (where the infant was deivered) and that hospita s empoyed pediatricians. The compaint aeged: faiure to diagnose and treat herpes in utero; faiure to appreciate and recognize the significance of an infection with genita herpes, and to recommend and perform the deivery by cesarian section; faiure to timey perform diagnostic tests and rue out herpes encephaitis; faiure to order an MRI and timey perform a umbar puncture; faiure to maintain the appropriate dose of Acycovir during treatment; and, finay, premature discharge of the newborn. Mutipe experts reviewed this case for. A recommended settement of the itigation by the insured physicians. The obstetrica experts were critica of the treatment rendered by her first obstetrician during the admission at Hospita 1 for fever and beeding. He did nothing to confirm suspected ruptured membranes. In addition, athough he had not yet received the resuts of the abnorma PAP smear at the time of this hospitaization, the obstetrician was very concerned that there was a vira infection reated to a possibe eak in the amniotic fuid and discussed the possibiity of terminating the pregnancy. The patient chose to continue the pregnancy. After discharge, at the next prenata visit, the obstetrician advised the patient that the PAP smear reveaed a herpes infection and documented this discussion with both parents in her medica record. However, he took no further action, such as repeating the PAP smear or ordering a bood test for herpes. After she transferred her care, the second obstetrician shoud have reviewed her prior records and then performed foow-up studies, incuding herpes bood titers. His faiure to order such studies when the patient was admitted to the hospita in Juy due to vagina beeding and abdomina pain was fet to be a cear deviation from the standard of care. Experts in materna feta medicine opined that the PAP smear performed in March of 2006, which indicated a herpes infection, required treatment of the patient. Athough the patient had eft the care of her origina obstetrician, he shoud have communicated this abnorma test resut verbay to her new obstetricians. If she had received ora Acycovir for the remainder of her pregnancy and had undergone a cesarean section deivery, the infant might have been spared the devastating resuts which occurred. Once the patient s membranes ruptured, the pacenta became infected with herpes over the ensuing 23 ½ hours of abor and this virus was transmitted to the baby. The infectious disease expert fet the work up of the mother upon admission to Hospita 1 in March 2006 was poor because no one even investigated the cause of her fever. He fet that amniocentesis shoud have been recommended and prompty performed during that admission. In addition, he was very critica of the care she received during the admission of Juy 2006 because there was no investigation of the herpes positive resut on the PAP smear. He further stated that a comprehensive infectious disease work up shoud have prompty been performed on the infant since the infected umbiica cord ceary indicated a systemic infection. This woud have reveaed that the herpes infection was more extensive than initiay suspected. The neonatoogy expert criticized the Hospita 2 empoyed pediatricians for their faiure to perform an appropriate diagnostic evauation of the infant, incuding a compete eye examination. Their mismanagement of the herpes infection may have ed to further brain damage in the newborn, which was confirmed by the neuroradioogist who concuded from the avaiabe imaging that the newborn suffered brain damage during her first through fourth weeks of ife. Finay, the Hospita 2 pediatricians testified at their depositions that, athough they made temporary notes about their care and assessment of the newborn on paper, they did not enter their findings in her medica record. Further, these notes were destroyed after the patient was discharged. Because of this, the paintiff s counse intimated that he intended to move for a spoiation of evidence charge during tria because they had destroyed evidence. The opinions of the experts, and the probems identified for a defendants, continued on page 4 Dateine Fa

4 C ase Study continued from page 3 attested to the difficuty in defending this suit. Therefore, settement discussions ensued. The paintiff initiay demanded $14 miion to sette the awsuit. There was aso a $2 miion ien from insurers on the potentia settement proceeds. The two obstetricians and the private pediatricians were insured by and had a combined $9.2 miion in avaiabe coverage. The co-defendant hospita, however, was not a insured, nor were its empoyed pediatricians who treated the newborn in the nursery. The hospita caimed during negotiations that it had imited funds to contribute because it was sef-insured. The hospita further indicated to the codefendants that the faciity woud ony contribute pennies to the settement. After very arduous negotiations, a tota settement of $4.29 miion was reached. The sum of $3,540,000 was paid on behaf of the three defendants from their primary poicies. The hospita s empoyed pediatricians contributed ony $500,000. The hospita paid $250,000 over a period of six months. A Lega & Risk Management Perspective Donnaine Richman, Esq. Fager Amser & Keer, LLP Counse to Medica Liabiity Mutua Insurance Company This case contained a myriad of probems for the defense of a parties. Mutipe physicians faied to perform any foow-up of abnorma aboratory resuts. Both sets of obstetricians faied to perform foow-up studies for herpes, despite the abnorma resuts of the PAP smear performed in March. The hospitaempoyed pediatricians faied to perform a compete infectious disease work up on the newborn after the presence of herpes was confirmed in the umbiica cord. The patient s first obstetrician faied to investigate the cause of the mother s fever upon her admission to Hospita 1. He aso faied to request an infectious disease consutation. The second obstetrician aso faied to act aggressivey to confirm the resuts of the initia PAP smear, which was positive for herpes, and thus treat the mother with antivira medication and/ or perform an amniocentesis. Once abor began, he then faied to deiver the baby by cesarean section. This is a very serious deviation from the standard of care when a patient may be infected with herpes. Documentation issues were aso rampant in this case. Faiing to document the abor record for 12 hours is a vioation of New York State reguations, which require documentation of the care of patients whose abor is being augmented by Pitocin. New York State hospita reguations, specificay 10NYCRR (e) (ii)(b), provide that augmentation of abor can ony be initiated after a quaified practitioner has: evauated the woman; determined that augmentation is medicay necessary for the patient or fetus; recorded the indications; obtained informed consent; and estabished a pan of management acceptabe to the patient. The obstetrician s compete faiure to document his care ceary vioated this reguation. He aso faied to document the patient s condition and the rationae for ordering an epidura for anagesia. Substantiation of a patient s care by a physician cannot be based upon nursing notes. There were significant communication deficits in this case as we. It is crucia for physicians to communicate with each other verbay when patients have abnorma aboratory tests, particuary a positive PAP smear. The patient s origina obstetrician shoud have spoken with her new physician regarding the abnorma PAP smear. Further, the crucia information that the umbiica cord contained herpes shoud have been prompty communicated to both the obstetricians and especiay the pediatricians caring for the newborn in the nursery. Faiure to do so ed to their faiure to perform an extensive infectious disease work up of the newborn. Communication ony to the obstetrician is not sufficient, since the obstetrician may have faied to communicate with the pediatrician in the nursery. Finay, the pathoogist shoud have spoken with the obstetrician as we since the mother and possiby the father of the newborn needed to be aware of, and treated for, the herpes virus. In short, this case iustrates how a ack of effective communication can resut in death or extensive permanent injury to a patient. Documentation deficiencies are a continuous source of weakness when trying to defend a high vaue awsuit. However, this probem can be caamitous when doctors testify that they made provisiona paper notes but faied to record them in the newborn s nursery record and that they destroyed them after the baby was discharged. When one destroys written or eectronic information which may be potentiay used in future itigation and never enters the information into the permanent medica record, the parties can be subject to sanctions shoud a awsuit be commenced. An attorney for a paintiff or defendant can ask the court to impose sanctions regardess of whether the oss or destruction is inadvertent or intended. The court can assess a variety of sanctions on the party who can no onger produce this evidence. By destroying potentia evidence, even negigenty, the 4 Fa 2014 Dateine

5 court can assume that there was intent and impose penaties, incuding: fines and possiby attorney s fees; providing instruction to the jury regarding the intentiona destruction of evidence; issuing an order precuding the party from bringing up the ost information; or, at its most damaging, strike the peading of a party, resuting in either the dismissa of the case or a determination of iabiity. The risk of paintiff moving for a charge of spoiation of evidence is often sufficient to push settement discussions to concusion. Finay, this case exempifies the probems has when deaing with uninsured, sef-insured, or financiay chaenged co-defendants and insurance carriers. These entities are sometimes not funded, or can be icensed out of state and are not subject to reguation by the New York State Department of Financia Services. Such defendants and carriers are often unwiing to discose the fu extent of their assets during settement discussions. They may act to impead insured doctors in order to enhance the avaiabiity of funds for settement, without having to contribute a fair share. The effect can be unfair to other defendants in a awsuit and may make it very difficut to reach a pre-tria settement. Unfortunatey, because of the serious risks to insured physicians and faciities by not setting potentiay high vaue cases, and others, whie acting in the best interests of their insureds, may be pressured to sette a case at a premium in order to extinguish itigation for a parties. In this case, ega and risk management factors seriousy impacted both the outcome of the newborn as we as the outcome of the settement negotiations. New Website, Bog and Twitter Stream Keep You Informed and Connected poicyhoders visiting.com recenty might have noticed that it now ooks very different. It had been quite some time since our site originay aunched and we decided it was due for a major renovation. We hope you find that the cean, fresh, more modern ook heps provide an easier-to-navigate experience, aowing you to find the information you re ooking for more quicky and efficienty. If you haven t seen it yet, pease visit and et us know what you think. In addition to the overa site redesign, we ve aso introduced the a-new bog. A bog page enabes us to share news and updates with our insureds on a timeier basis. Bog readers aso have the abiity to engage the Company directy via bog post comments. Pease visit the bog at www. mmic.com/bog today to see a the posts you may have missed. If you woud rather have the bog posts come to you, be sure to subscribe to the News Digest, which you can do on the right-hand side of the bog page. You receive a digest of new bog posts about once every three weeks, deivered directy to your emai inbox. To receive the News Digest, just enter your emai address, choose the poicy type that appies to you Physician, Dentists, and/or Hospitas and cick the sign-up button. Those of you active on socia media wi be peased to know that you can now foow on Twitter, where we re sharing the atest Company news, industry insights, and more. Our Twitter hande Foow us today! Pease note: we sti be maiing out our Dateine, Denta Dateine and Case Review print pubications just as we ve aways done, so if you re not active in the digita or socia space, you continue to be informed about news, best practice recommendations and medica iabiity insurance insights. Dateine Fa

6 LEGAL Surprise Visits from Government Investigators and Agents Donnaine Richman, Esq. Frances A. Ciarduo, Esq. Fager Amser & Keer, LLP Counse to Medica Liabiity Mutua Insurance Company Investigation of a Compaint It can be quite unsetting to have a government investigator appear unannounced in your office demanding copies of patient records or even an interview with you or your office staff. Severa government agencies may authorize such surprise visits, incuding the Office of Professiona Medica Conduct, the Centers for Medicare and Medicaid Services and agencies such as the Centers for Disease Contro or the Occupationa Safety and Heath Administration. Often, you wi have no advance warning of the site visit, so there is no time to think and arrange your thoughts. It is important to appear cooperative to show the investigator(s) that you have nothing to hide, but you shoud aways reaize the risks of speaking to an investigator without ega counse and aowing origina medica records and documents to be removed from your office. Agency investigators may demand access to your premises, may ask to interview not ony you but aso a of your office staff, and may ask you to immediatey produce your origina patient records. These situations can be frightening to your staff, especiay when the agents are demanding or intimidating. It is important that you proceed sowy and cautiousy if you are unexpectedy visited by an investigator. Beow are some risk management recommendations to hep you respond safey and appropriatey shoud such unanticipated situations occur. 1. Designate an individua in your office to be notified immediatey when/if governmenta agents or investigators appear seeking information. 2. Before providing any information, ask the investigator to provide identification such as an officia ID badge or business card so that you can verify the identities of the agency and the agent. You may aso ask for any documentation citing the ega authority which empowers the investigator or agent to carry out unannounced site visits or demands for information. 3. Make copies of a identifying badges or documentation. Request that the individuas sign in so you can monitor who is on your premises. 4. Immediatey ca your attorney. You have the right to have an attorney present during the investigation and at any interview. 5. If the investigator does not have a search warrant, he/she may make a request for items in your possession, but you are not required to immediatey hand them over. You shoud ask the investigator to wait unti you have consuted with your attorney. You shoud foow your attorney s advice. 6. If the investigator demands your origina documents, and if there is no search warrant, you shoud poitey offer to make copies of the documents avaiabe. Whenever possibe, you shoud not permit origina documents to eave your office, particuary patient medica records. If you must provide records, ask the investigator to accept copies. Faiure to retain either accurate originas or copies of the medica records given to an investigator is professiona misconduct and coud potentiay jeopardize the care of your patients and even cause them harm. 7. If investigators wish to speak to your empoyees, do not forbid or prevent them from doing so. However, you shoud advise your empoyees that they are not obigated to tak to the agents and are entited to have another person present when they do so. Any person who is interviewed is entited to have his/her own attorney present. 8. Be cautious about speaking to government agents without an attorney present. There is aways a risk that the agents may misconstrue your statements. It is aso ikey that they wi record the interview(s) either eectronicay or in writing. Because of the tension of the moment and the disruption of your office, you may inadvertenty make statements which can be construed as admissions against your interest. These statements can and wi be used against you if crimina or administrative proceedings resut from the investigation. 9. If any empoyees speak to agents, it is important to document who was interviewed and what questions were asked. That assists you and your counse in determining the aim of the visit by the agents. 10. Contact to determine whether this administrative investigation (such as OPMC or Medicare) woud be covered by your defense ony endorsement for payment of ega fees Be aware that there may be poicy excusions such as for aeged crimina acts which precude payment of ega fees pursuant to the defense ony coverage. 6 Fa 2014 Dateine

7 Execution of Search Warrants Certain governmenta agents and officers (such as the FBI, state, or oca poice) may be investigating potentia crimina charges and may present you with a search warrant. A search warrant is issued by order of a court and therefore it must be obeyed. The intent of the warrant is to search your premises to seize and remove evidence. The ega basis for a judge issuing a warrant is probabe cause that a crime has been committed and the premises contains evidence of that crime which must be seized to ensure that it wi be avaiabe in court. Thus, if you are unexpectedy served with a search warrant, you must do nothing to interfere with the search. In addition to the recommendations outined above, you shoud take the foowing steps: 1. Your staff shoud immediatey notify you if an officer appears with a search warrant, and you shoud immediatey notify your ega counse. You are entited to have counse present at a stages of the search. Ask your attorney to come to your office at once if at a possibe. 2. Ony a search warrant gives the agent the right to immediatey seize items on your property. Agents who remove property from your office must give you a copy of the warrant, an inventory of a property they have removed and a receipt for the property. 3. The warrant wi identify the ocations where the agents are permitted to search. Carefuy review the specific ocations subject to the search. If the agents attempt to go beyond those designated areas, ask them to wait and prompty consut your attorney. However, if the agents refuse to wait for you to consut an attorney, do not interfere with their search. Doing so coud be construed as an obstruction of justice, which coud be a feony. Document what transpired, as we as what was removed both on and off the ist you received with the warrant, and provide that information to your attorney. 4. The warrant wi aso incude an attachment isting a of the items (or categories of items) to be seized. Ask for a copy of the attachment and make sure the agents do not seize any items not covered by the warrant. If the agents attempt to seize items not designated by the warrant, ask them to wait so that ega counse can be consuted. If they refuse to wait, do not interfere with their efforts. 5. A search warrant authorizes agents to search and seize property ony. It does not give the agents the authority to interview empoyees. However, if agents wish to speak to your empoyees, do not forbid or prevent them from doing so. Foow the guideines isted above for agency investigations. If any empoyee speaks to agents, it is important to document who was interviewed and what questions were asked. That assists you and your counse to determine the aim of the visit by the agents. 6. The agents are entited to take the origina documents and items described in the warrant. You shoud ask for copies of the documents before they are taken by the agents. If the number of documents being taken is excessive, you might consider asking ony for copies of the specific documents that are essentia to your conducting business. The agents are not required to give you copies of the documents. If they refuse to give you copies, notify your attorney so that you can obtain copies ater. 7. The warrant authorizes the agents to use force, where necessary, to execute the warrant. You shoud instruct a personne not to impede or obstruct the agents efforts to execute the warrant. 8. The agents may serve grand jury subpoenas on empoyees. The grand jury subpoenas require attendance before the grand jury on a specified date for the purpose of giving testimony. The subpoena does not require the empoyees to speak with the agents during the search. If any subpoenas are served on empoyees, make a ist of a empoyees who are subpoenaed. In addition, obtain a copy of continued on page 14 Dateine Fa

8 LEGAL Aternative to Certified Mai Donnaine Richman, Esq. Frances A. Ciarduo, Esq. Fager Amser & Keer, LLP Counse to Medica Liabiity Mutua Insurance Company W henever you must send an important communication to a patient, it must be in writing and sent by means of a reiabe deivery method. In the past, many significant written communications discharge etters, or warning etters to noncompiant patients woud be sent to the patient by certified mai, return receipt requested. The certified mai process requires a signature from the patient or another person who ives at the address, thus providing evidence that the communication was, in fact, received. Unfortunatey, not ony has the cost of certified mai dramaticay increased, but it is increasingy common that certified maiings are returned to the physician s office without a signature. This coud occur either because the patient refused to sign for the etter, or because the patient was never home to receive it. It can take severa weeks for a etter to be returned as refused or uncaimed. The physician must then begin the notification process a over again in order to make an attempt to convey the communication to the patient. This deay coud resut in additiona risk to the physician, especiay if the physician wished to discharge the patient from the practice. As a resut of these issues, Fager Amser & Keer LLP has revised its recommendation concerning the method by which written communications shoud be sent to patients. It is sti suggested that the etter and enveope be marked persona and confidentia. However, certified mai, return receipt requested, is not the ony reiabe method of maiing which can be used. Instead, the notification shoud be sent using the certificate 8 Fa 2014 Dateine of maiing process offered by the US Posta Service. This requires you or a staff member to go to the Post Office to mai the etter via first cass mai to the patient s ast known address. At the time of maiing, a certificate of maiing is purchased. The form (PS form 3817) can be downoaded from about.usps. com/forms/ps3817.pdf, but it must be brought to the Post Office to be paced in an officia Post Office depository. The Post Office accepts the etter and stamps the form with the date the etter is maied. Since the etter is sent via first cass mai, it does not require a signature, and, if necessary, it wi be forwarded to the patient s new address. It cannot be refused by the patient and wi not be returned by the Post Office uness the address itsef is invaid. The date-stamped certificate is proof that you maied the etter at the Post Office, and this constitutes presumptive evidence in court that the et- ter was received by the patient in the norma course of business. Thus, if the first cass etter is not returned as undeiverabe, you may assume the patient has received the etter and have proof it was maied. A copy of your written communication to the patient and the certificate of maiing shoud be retained in the patient s medica record.

9 LEGAL Update on Physician Assistant Prescribing Authority The Spring, 2014 issue of Dateine discussed the rues governing the professiona practice of physician assistants (PAs). In the artice Physician Assistants: A Risk-Benefit Anaysis, it was stated that PAs coud not prescribe any Schedue II controed substance, citing 10 NYCRR 94.2(e)(5) (page 3, footnote 10). On February 26, 2014, a Notice of Proposed Ruemaking was pubished in the New York State Register proposing to remove this restriction. As of this writing, the reguation has not been amended, athough the website of the New York Department of Heath does state that PAs may write prescriptions for Schedue II controed substances: In an outpatient setting, the PA may prescribe a medications, incuding Schedue II - V controed substances, if deegated by the supervising physician. PAs may appy to the DEA to obtain their own, individua registration numbers as mid-eve practitioners. Once duy registered by the DEA, they may prescribe Schedues II, III, IV, and V drugs, in compiance with Artice 33 of the Pubic Heath Law and Part 80 and Part 94.2 of Tite 10 reguations. Such prescribing is aso subject to any imitations imposed by the supervising physician and/or cinic or hospita where such prescribing activity may occur. PAs sha register with the Department of Heath in order to be issued officia New York State prescription forms. Officia New York State prescription forms issued to the PA are imprinted with the names of both the PA and the supervising physician. If a PA utiizes an officia prescription issued to a hospita or cinic, the PA must stamp or type his or her name and the name of the supervising physician on the officia prescription. doctors/conduct/physician_assistant.htm. If you require further information on this subject, pease contact an attorney at Fager Amser & Keer, LLP. HIV Law Updates On Apri 1, 2014, Pubic Heath Law 2781, governing consent for HIV tests, and Pubic Heath Law 2135, regarding confidentiaity of HIV reports, were amended. The purpose of these changes was to increase HIV testing and thereby increase the number of HIV positive persons who receive medica care. These new provisions, described beow, are appicabe to a individuas who are offered HIV testing in New York State, and are not restricted to patients between the ages of 13 and 64 in cinica settings who must be offered testing pursuant to prior egisation. 1. The requirement for written consent to be obtained prior to ordering HIV-reated tests has been eiminated with the exception of individuas retained in correctiona faciities, who must sti provide written consent for HIV testing. 2. Information about HIV testing (pre-test counseing) must sti be provided to the patient via posters, brochures, videos or discussions with providers, so the patient has the information necessary to consent to or refuse testing. 3. Verba consent must be obtained from the patient or individua egay authorized to consent for the patient prior to the test. The patient s verba consent shoud be documented in the medica record. 4. Prior to testing, the patient must be advised each time an HIV test is to be performed. 5. A HIV tests performed must be documented in the patient s medica record. We aso continue to recommend that a pre- and post-test counseing be documented in the medica record. 6. A physician can share a noncompiant patient s protected HIV-reated information, as we as other necessary information, with oca and state heath departments and other physicians treating the patient in order to retain that patient in treatment. 7. During post-test counseing, patients identified as HIV positive must be advised that if they are non-compiant with care, they may be contacted by their medica provider or the heath department to promote their re-entry into, and compiance with, care. 8. Post-test counseing must emphasize the benefits of antiretrovira therapy (ART) and the importance of HIV vira suppression. 9. A prior New York State Pubic Heath Law confidentiaity protections governing HIV-reated information remain in effect with respect to the reease of medica records and verba communications. Protections against discrimination based upon HIV-reated information are aso unchanged. Reguations wi be deveoped by the New York State Department of Heath to impement these statutory changes. Additiona information about the new amendments may be found at www. nyheath.gov. Questions may be sent to [email protected]. Dateine Fa

10 LEGAL s Risk Management and Lega Services is committed to the education of heathcare professionas as an effective means of improving patient care and, utimatey, reducing the number and severity of caims. s Risk Management Department has deveoped comprehensive programs to hep minimize the iabiity exposure of -insured hospitas and ong term care faciities, as we as its physician, surgeon, and dentist poicyhoders. These programs are avaiabe at no cost to poicyhoders. CME Programs offers two types of CME programs: CME Programs for Premium Credit and Excess Eigibiity Satisfactory competion of these CME courses aows physicians to earn AMA PRA Category I Credits TM (dentists earn CE credits) and the appicabe premium credit, as we as quaify physicians and dentists for participation in the medica mapractice excess insurance program. aso may require hospita empoyed physicians, residents and mid-eve practitioners to compete these programs. Modues for CME Credit Ony These modues, which are derived from s previousy-reeased CME programs, address a number of important risk management and patient safety topics. Physicians competing these modues wi earn AMA PRA Category 1 Credit TM. Non-physicians wi receive a certificate of competion. No premium credit is offered for the competion of these modues, nor wi they quaify physicians for participation in the excess medica mapractice insurance program. Consutative Services s Risk Management Consutants are professionas with diverse experience in the heathcare industry who are skied in oss prevention. The Risk Management Consutants operate regionay and provide services to poicyhoders throughout New York State. Medica and Denta Office and Group Practice Surveys & Assessments Our office practice surveys can hep improve patient care and reduce caims that arise in the private office setting. An on-site review and evauation of individua office practices is conducted by our Risk Management Consutants, with an assessment of our insured s office poicies, procedures, and practices. Some of the office procedures and forms that may be reviewed incude informed consent/consent forms, medica record documentation, physician/ patient reations, foow-up of referras and consutations, and professiona staff credentiaing. Recommendations for improvement of the practice are provided to the physician or dentist upon competion of the survey. On-Site Education Programs for Group Members and Staff An informed and highy motivated staff is a group s best resource for reducing the potentia for patient injury and subsequent financia oss. Educating staff members to assist them in providing quaity care in a safe environment is a major eement of s risk management program. Another advantage of staff education is that when empoyees are comfortabe with the oss contro concept, they wi more readiy notify management of patient incidents. Risk Management Consutants can provide your practice with presentations on a variety of educationa topics at no cost. These presentations may incude: Office Safety and Risk Management incuding foow-up of missed and canceed appointments and tracking diagnostic test resuts and referras; Teephone Communication; Medication Safety; Infection Prevention; Disruptive Behaviors; Use of Socia Media; Medica Record Documentation; Lessons Learned from Caims; Patient Experience; Handing Patient Compaints; Scope of Practice and Supervision; and other risk management concerns. Lega Advice and Services Poicyhoders may access a variety of ega services provided by Fager Amser & Keer, LLP, counse to. Fager Amser & Keer attorneys are ocated in our Latham, Long Isand, and Syracuse offices. The firm s experienced attorneys speciaize in heathcare aw, incuding professiona iabiity issues, medica mapractice defense itigation, and reguatory compiance. They have broad experience anayzing significant reguatory information reating to the heath professions. The attorneys monitor current statutes, reguations, and case aw and keep our insureds apprised when there is an impact on potentia iabiity. They are avaiabe to serve as featured speakers at medica and denta society member programs as we as heath care practices and faciities. Fager Amser & Keer aso provides insured physicians with a seection of ega forms and documents for use in their practice. continued on page Fa 2014 Dateine

11 Teemedicine Resources Robert Pedrazzi Assistant Vice President, Underwriting Medica Liabiity Mutua Insurance Company As auded to in the Underwriting Update of our Spring 2014 edition of Dateine, Advertising and Providing Medica Advice over the Internet: Cautions and Concerns eectronic communications in the fied of medicine amongst heathcare practitioners, commony known as teemedicine, is expanding at a rapid pace. Recent advancements in technoogy and equipment have made possibe the deivery of heathcare services from practicay any geographic ocation. Whie the Physicians and Surgeons Professiona Liabiity Insurance Poicy (PSE) affords coverage for these activities under its provisions, it is nonetheess equay important for our insureds to arm themseves with the necessary knowedge to utiize these new heathcare deivery methods in an appropriate manner. To assist them in this endeavor, we recommend that our insureds propery accimate themseves to this new environment by consuting with a number of resources reating to the fied of tee- medicine. The Library s coection, which focuses on heathcare risk management, quaity and patient safety issues, is avaiabe for the excusive use of s poicyhoders. From this coection, we have compied the foowing resources for our readers who pan on engaging in teemedicine. American Teemedicine Association (ATA) ( This organization is described on its homepage as being the eading internationa resource and advocate promoting the use of advanced remote medica technoogies. The ATA and its diverse membership work to fuy integrate teemedicine into transformed heathcare systems in order to improve the quaity, equity and affordabiity of heathcare throughout the word. The ATA is named as a resource on the Agency for Heathcare Research and Quaity s (a Pubic Heath Service Agency in the U.S. Department of Heath and Human Services) website. Federation of State Medica Boards (FSMB) ( This organization is described on its homepage as a nationa nonprofit representing the 70 medica and osteopathic boards of the United States and its territories. This site contains their Mode Poicy for the Appropriate Use of Teemedicine Technoogies in the Practice of Medicine Apri 2014, which can be directy accessed using the foowing ink: FSMB/Advocacy/FSMB_Teemedicine_ Poicy.pdf One fina resource providers may wish to consider consuting woud be their individua speciaty societies, which may offer some additiona insights on the proper teemedicine practices of their specific speciaty. Hospita-Acquired Infections Sti a Concern The Centers for Disease Contro and Prevention (CDC) recenty reeased data ( p0326-hospita-patients.htm) on a 2011 study that indicated one in 25 patients in the U.S. have suffered from at east one infection contracted during their course of hospita care. This equates to about 722,000 heathcare-associated infections annuay. In addition, approximatey 74,000 hospita patients had to fight more than one nosocomia infection annuay and about 75,000 patients with hospita acquired infections (HAIs) die during their hospitaization every year. The most common heathcare-associated infections identified by the CDC were pneumonia (22 percent), surgica site infections (22 percent), gastrointestina infections (17 percent), urinary tract infections (13 percent), and boodstream infections (10 percent). The CDC aso points out that athough there has been some progress in preventing nosocomia infections, much more needs to be done. The CDC and its partners have deveoped strategies to assist heathcare providers prevent heathcare-associated infections. For the atest modes and standardized toos reating to infection contro as we as comparison data for hospitas, visit the CDC website at or ca the CDC at (202) Dateine Fa

12 Physician Off ice Practice Surveys continued from page 1 and office equipment. Whie numerous recommendations were made in many areas, this artice wi focus on, and offer soutions to, the top five areas of concern. The next five areas of concern wi be addressed in the Spring 2015 issue of Dateine. 1. Foow-up of Test Resuts The highest number of recommendations (56) were made in this category. The majority of the recommendations stemmed from the practice surveyed not having a system to track aboratory tests, diagnostic studies, and consutations ordered. A poicy and procedure shoud be deveoped outining this tracking system (e.g., bood work, x-rays, mammography) and consutations that are ordered. A tracking og shoud be maintained that incudes the date, patient identifiers, and the type of study or referra requested. Resuts received shoud be documented by date. This og, whether in eectronic or paper form, shoud be reviewed on a weeky basis to ensure that resuts are received and patients are propery notified of their resuts. Instances of non-compiance or deays caused by the patient shoud aso be documented. A ogs shoud be kept for ten years. Additiona recommendations in this area addressed the need for medica record documentation of patient noncompiance, and a foow-up efforts taken to contact the patient. Significant test resuts that are noted in the fina reports shoud be documented in the medica record. A incoming test resuts shoud be read, signed, dated, and timed prior to being fied in the patient s record. With respect to consutation reports, providers must document in the medica record the rationae for treatment shoud they disagree with the recommendations of the consutant. To further enhance patient care, a process to notify patients about routine yeary checkups and preventative heath maintenance shoud be deveoped. 2. Teephone Cas Fifty-three recommendations were made regarding the management of patient teephone cas both when the practice is open and after hours. Poicies and procedures shoud be deveoped that address the directing of cinica phone cas to an appropriatey icensed practitioner or a physician, as we as the handing emergency cas (e.g., instructing patients to ca 911). Teephone triage shoud be conducted, at a minimum, by a registered nurse as it is not within the scope of practice for LPN s or non-icensed staff to hande this responsibiity. A cas taken, whether after hours or whie in the office, shoud be documented in the patient s medica record. Documentation shoud incude: the patient s name and other identifiers; the date and time of the ca; a thorough expanation of the patient s concerns; the advice and instructions given; and any orders/prescriptions provided. The content of foow-up teephone cas shoud aso be documented. When possibe, pharmacy orders shoud be eectronicay sent or faxed instead of being caed in by teephone. Written poicies and procedures shoud be deveoped to address teephone contacts with patients after hours, incuding those handed by a covering provider. There shoud be a written agreement between the physician and covering providers regarding the arrangements made for the care of the patient. Documentation of the covering provider s patient contacts and interventions shoud be paced in the patient s medica record. There shoud aso be a system in pace for the physician to review this information. There shoud aso be a written contract with your answering service. Answering services shoud submit a record of cas to the office on a daiy basis, and the records shoud be maintained by the office for ten years. This information shoud aso be incorporated into the patient s medica record in a timey fashion. Test cas shoud be conducted periodicay to determine the accuracy, timeiness of response, and professionaism of the answering service. The answering service shoud incude a message to hang up and ca 911 if this is an emergency. 3. Documentation in the Medica Record There were a tota of 50 recommendations made invoving medica record documentation. Accurate and compete documentation is the most vauabe contribution to risk prevention and the mitigation of iabiity. Attorneys wi use your documentation to identify a possibe faiure to meet the appropriate standard of care, an injury, and a ink between the two. The three most common findings identified in this category invoved egibiity and consistency, documentation of the patient history, and documentation of patient education. Iegibe handwriting is a common issue found in paper records. Identifiabe signatures with credentias, dates, and times shoud be present for a entries. A written poicy and procedure shoud incude the use of an approved abbreviation ist. An additiona poicy and procedure shoud be deveoped for making proper corrections in the paper medica record. This incudes drawing a singe ine through the incorrect entry, abeing it error, and initiaing and dating it. The correct entry shoud then be documented after the ast note in the record. 12 Fa 2014 Dateine

13 Physicians utiizing an EMR system must remember that there wi be an audit trai that records the time and date when each entry is made. Addenda to the medica record are generay not recommended uness significant information pertaining to the patient s care is missing. A propery timed and dated addendum that adds information which is reevant to the patient s future care is reasonabe, provided it is done within a short time of the patient encounter. With respect to the medica record content, there shoud be a process for reviewing and documenting the patient s medica, surgica, famiy, and socia history. This information shoud be reviewed with the patient by a icensed cinician on a routine basis. A patient history form can be deveoped for the patient to eicit or update this information. Documentation of patient education shoud incude any verba and/ or preprinted instructions given to the patient, pus documentation of the patient s understanding of the instructions. Verba instructions shoud ony be provided by appropriatey icensed staff. Preprinted instructions for patients shoud be deveoped, and oder versions of these handouts shoud be maintained on fie when these are updated. A printed materias (educationa and otherwise) given to patients shoud be referenced and/or scanned into the computer system or fied in the medica record, as the standard of care at the time the information was provided may be different from the standard of care at the time a awsuit is commenced. For offices that utiize eectronic medica records, make certain that a aspects of the EMR are printabe, and verify that a documents scanned into it are egibe before the originas are destroyed. Fager Amser & Keer recommends retaining a paper records for ninety days before destroying them. 4. The Medica Record There were 48 recommendations made in this category. Appropriate record keeping practices support good risk management programs. The most common issues identified with respect to medica records invoved poicies and procedures, patient identification, and security. In many of the physician offices surveyed, there were no poicies and procedures addressing the critica areas of: identification of aergies and sensitivities; outine of the chart order; and the maintenance, storage, and destruction of medica records. Aergies shoud be highighted on the cover of every chart and on each screen of an EMR for quick identification. Each chart shoud present in the same order and contain the same tabs identifying where information is to be fied. We recommend that medica records shoud be maintained for ten years from the date of ast payment. Medica records for minor patients shoud be maintained unti the age of 22 or ten years from the date of ast payment for treatment, whichever is onger. Patient identification is essentia to ensuring the correct information is in the right chart. Each page or screen of the medica record shoud have specific patient identifiers. Security of the medica record is equay as important for both paper and eectronic records. A records shoud be organized and secured. When using an EMR, consider the use of a secondary, off-site backup system. 5. Human Resources Forty-one recommendations were made in this category. The main focus was the verification of empoyee credentias. Empoyee fies shoud be organized, secured, and shoud contain: written job descriptions; signed confidentiaity statements; written documentation of reference checks; documentation of icensures; training records; and performance appraisas. If students are being trained on site, there shoud be an agreement with the educationa institution regarding scope of practice for the student and the supervision required. Additionay, the practice shoud confirm that the institution procontinued on page 16 Dateine Fa

14 Tip #16 Medication Regimen Adherence The Risk: Patient non-adherence to a prescribed medication regimen is a common probem for physicians of a speciaties. Patients and/or caregivers shoud be aware of the importance of taking medications exacty as directed as we as any potentia drug-reated probems that may warrant emergency care. Recommendations: 1. Prescribing providers shoud educate patients about each medication, incuding its name, appearance, purpose, and effect. This education shoud incude any potentia adverse effects and interactions of each medication, as we as the importance of contacting a heathcare provider shoud any questions or concerns arise. 2. The importance of using ony one pharmacy to obtain a medications shoud be stressed with patients or their representatives. 3. Patients shoud aso be advised to: a. keep an accurate ist of a medications, incuding generic and brand names, dosages, dosing frequency, and the reasons for taking the drug; b. keep a compete ist of medica providers and their contact information; c. post the name and teephone number of the oca pharmacy in a prominent ocation (e.g., EMS personne have been instructed to ook for the above three items on refrigerator doors); d. not spit medications to save money as, in doing so, they may not be taking an effective dose; e. estabish a daiy routine when taking their medications, foowing their prescribing provider s instructions; and f. bring a ist of a medications you are taking, incuding over-thecounter medications and herba suppements, to each and every physician appointment. 4. Additionay, physicians shoud hep patients manage their medications, caution them to not share medications, and advise them to foow storage recommendations and dispose of od medications propery. Surprise Visits continued from page 7 the subpoena, because it is ikey to refect the names of the government attorneys invoved in the investigation and their phone numbers. 9. To the extent attorneys are not avaiabe on site at the time of the execution of the warrant, you shoud assign one empoyee to each agent or group of agents who are conducting the search. These peope shoud accompany the agents during their search. They shoud observe the agents conduct and take notes regarding where the agents searched and what documents or items were taken from particuar ocations. The empoyees shoud be instructed that they are not to vounteer information. Their soe purpose in foowing the agents is to observe the agents conduct and take detaied notes. Again, it cannot be stressed enough that the empoyees are not to attempt to interfere in any way with the agents. 10. The agents may try to seize ega fies or other attorney-cient privieged materias as part of the search. A search warrant typicay shoud not be used to obtain attorney-cient privieged materias. If the agents attempt to seize any attorney-cient privieged materias, ask to speak with the ead agent. If the ead agent wi not cooperate on this issue, counse shoud be notified so they can attempt to contact the agency attorney overseeing the investigation. Utimatey, if the agents decide to take privieged materias, you shoud not try to stop them. 11. After the search is competed, you shoud make a ist of a areas searched by the agents. For each area that was searched, identify the personne who woud have knowedge as to what items are missing. Each person shoud make their own ist of a items they beieve to have been taken by the agents. 12. When the agents have competed the search and seizure, prompty escort them off your premises and confirm that a of them have in fact eft the premises. In sum, it is aways disconcerting to have investigators or aw enforcement personne appear unannounced in your office. The best approach in these circumstances is to proceed methodicay and document a the activities taking pace. It amost goes without saying that you shoud make certain that you prompty retain an attorney with experience in deaing with agency investigations, search warrants, and crimina investigations. 14 Fa 2014 Dateine

15 The Library Fa 2014 Update Offices 2 Park Avenue New York, NY (800) Cinton Square Syracuse, NY (800) The Library s services are avaiabe to a poicyhoders on a compimentary basis and may be accessed via.com under the Risk Management tab. Books and DVDs are reguary reviewed to provide up-to-date answers and guidance for your risk management and patient safety questions. In-depth research services are aso avaiabe to a poicyhoders. The foowing resources are newy acquired and/or pertain to topics featured in this issue of Dateine. Visit the Library to earn more about these tites and borrow up to five items from our extensive coection. Or, contact Judi Kroft, Library Services Administrator at , ext or via e-mai at [email protected]. 10 Steps to Improve Patient Safety in the Practice. Frank Chapman. Medica Group Management Association; 2013 (Phys ). The CMS Compiance Crosswak. Chery A. Niespodziani. HCPro, Inc.; 2014 (Hosp Adm ). Advancing Effective Communication, Cutura Competence, and Patient- and Famiy-Centered Care: Roadmap for Hospitas. The Joint Commission; 2010 (Hosp Adm ). Art and Science of Teephone Triage: How to Practice Nursing Over the Phone. Caro Ruterberg and M. Eizabeth Greenberg. Medica Group Management Association; 2012 (Nursing ). In the Name of the Patient: Patient Advocate Roe in a Heathcare Faciity. Bery Institute; 2014 (Pt Rights ). NPP (Non-Physician Providers) Utiization in the Future of US Heathcare. Medica Group Management Association; 2014 (Phys ). The Other End of the Stethoscope: 33 Insights for Exceent Patient Care. Marcus Enge. Ea Press; 2006 (Pt Rights ). Physician Perspectives on Patient Experience. Latha R. Shankar and Jason A. Wof. Bery Institute; 2014 (Phys ). 90 Merrick Avenue East Meadow, NY (877) British American Bouevard Latham, NY (800) Fager Amser & Keer s attorneys are avaiabe during norma business hours to assist insureds with a wide range of ega services, incuding, but not imited to, advisory opinions concerning heathcare iabiity issues, iabiity itigation activities, ecture programs, and consuting services. AMDA Long-Term Care Medicine 2014 Annua Symposium: Creating Harmony in Long-Term Care. AMDA (The Society for Post-Acute and Long-Term Care Medicine); 2014 (LTC ). Heathcare aw, reguations, and practices are continuay evoving. The information presented in Dateine is accurate when pubished. Before reying upon the content of a Dateine artice, you shoud aways verify that it refects the most up-to-date information avaiabe. Dateine Fa

16 PRESORT STANDARD U.S. POSTAGE PAID PERMIT #1174 NEW YORK, NY 2 Park Avenue New York, NY Physician Office Practice Surveys continued from page 13 vides indemnity for any professiona acts of the student whie at the practice. The medica record shoud contain documentation indicating that the patient agreed to have a student present during their encounter. A empoyees, students, and vounteers need to have job descriptions on fie. These need to specify the responsibiities that are aowed under state reguations in accordance with their professiona scope of practice. A personne shoud wear visibe ID s that incude their name and appropriate credentias or tite. Adopting these recommendations wi assist in the deveopment of a we-rounded risk management program that can reduce the risk of patient injury and, in the event that there is itigation, wi contribute to a strong defense. The remaining five findings and recommendations wi be presented in the Spring 2015 issue of Dateine. s medica office practice surveys can hep improve patient care and reduce the risk of caims that may arise in the physician office setting. An on-site review and evauation of individua office practices and procedures may be conducted by our Risk Management Consutants, with recommendations to improve the practice provided upon competion of the survey. Requests for this service can be made either through our website, com, or by caing the Risk Management Department at the office cosest to your ocation. These services are provided to physicians at no cost, as a benefit of their membership with. s Risk Management and Lega Services continued from page 10 Fager Amser & Keer, LLP attorneys are avaiabe during reguar business hours and can be reached at the foowing teephone numbers: Latham (518) Long Isand (516) Syracuse (315) For specific information on any of s Risk Management services, contact us at (212)