How to be a better Health Care Provider: Advice & Anecdotes from a Malpractice Lawyer

Donald R. Cranston, Q.C.

Partner

Bennett Jones LLP

Mazankowski Grand Rounds

January 28, 2015

Documentation

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Risk Management Services

• By the end of the session the participant should be able to:

• Explain why poor documentation is a major medico-legal risk factor

• Identify three components of good documentation and three elements considered inappropriate

• Apply three documentation strategies to enhance patient safety and avoid medico-legal risks

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Learning Objectives

Medical Records - Purpose • Communication tool

• Assessment tool

• Teaching and research tool

• Legal protection

"Medical records are an important tool in the practice of medicine. They serve as a basis for planning patient care; they provide a means of communication between the attending MD, other MDs, with RNs and others contributing to the patient's care; they furnish documentary evidence of the course of the patient's illness, treatment, and response to treatment.”

Canadian Council of Healthcare Accreditation

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What you need to know …

• Contemporaneous

• Objective, dispassionate

• Accurate

• Amount of detail

• Determined by clinical circumstances

• Frequency of notations

• Depends on clinic situation

• Legible

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Requirements For Good Records

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Documentation: What do the Courts say?

• "If it wasn't charted it wasn't done"

• "The medical record is like a witness whose memory never fades"

• "An exemplary medical record makes me believe that the medical care must have been the same"

• "Nothing trumps a contemporaneous note"

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Court Judgments About Documentation

• Are the contents of the medical record regulated by law?

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The Law

• Health Profession Act

• Health Information Act

• Personal Information Protection Act

• College of Physicians and Surgeons of Alberta

• Alberta Health Care Insurance Plan

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The Law - Alberta

Remember

GOOD RECORDS

May not avoid a legal action BUT may get you out of it!!

BAD RECORDS

May not only lead to a legal action BUT may cause you to lose the ones you could win

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1. Patient's identification

• name

• address

• date of birth

• Alberta Health number

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Minimum Requirements

2. When there is a referral

• the name and address of primary care physician and of the health professional who referred the patient

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Minimum Requirements

3. Every written report received from another physician or health professional

4. The date of each professional encounter with the patient

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Minimum Requirements

5. Assessment of the patient

• history

• particulars of each Px examination

• investigations ordered and results

• each diagnosis

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Minimum Requirements

'Could another doctor assume immediate care of this patient solely on the basis of the medical record?’

• Why did they come?

• What was found?

• What was done?

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The Test

• Incomplete

• Lost or unread

• Illegible

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Main Issues – Paper Record

• Incomplete

• Lost or unread

• Audit / Alarms

turned off

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Main Issues - EMR

Who owns the medical record ?

1. The doctor?

2. The patient?

3. The hospital or clinic?

4. The College?

5. Shared ownership?

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Question – Medical Records

McInerney c. MacDonald, [1992] R.C.S. 138:

• the physical medical record belongs to the physician, establishment or clinic who makes up the record

• the information contained in the medical record belongs to the patient

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Ownership

Physician :

• owner of the physical medical record

Patient is entitled to :

• examine the contents

• access his / her medical record

• confidentiality of its contents

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Ownership

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Saved by the Chart

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• Document quality of care

• Provide team communication

• Professionalism

• Evidence

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Summary – Medical Records

Generally 75% of CMPA legal actions have a favourable outcome. What percentage of CMPA legal cases involving record keeping issues have an favorable outcome for the physician?

A. 20%

B. 35%

C. 55%

D. 70%

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37%

63%

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Legal outcome – favorable vs. unfavorable

71%

29%

6,545 Legal Actions Closed (5-year period)

Record Keeping Issues No Record Keeping Issues

Favorable Unfavorable

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Good Corrections

Addendum: April 12, 2010 1630 During the office visit the patient also reported experiencing stress at home…

INFORMED CONSENT WHAT WOULD YOU WANT TO KNOW?

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• “Informed consent” is a misnomer

• it is not a type of consent

• Interference with the person without consent, is battery

• it is the interference which results in legal liability

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What's In a Name?

• Interference with the person without informed consent, is negligence

• it is the lack of appropriate advice which results in legal liability

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Battery

• Obligation to advise

• Two hats

1. An obligation to diagnose and treat to the appropriate standard

2. An obligation, before treatment, to advise to the appropriate standard

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A Better Name?

• Because, the obligation to advise can be much broader than the obligation to provide

• One reason for this is the appropriate standard for advice is the standard the patient wants

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Why Should I Care About the Difference?

• You consider the patient to be a good candidate for balloon angioplasty and a stent

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Let’s Consider a Patient with Coronary Artery Disease

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Informed Consent example only

I, ______ hereby consent to undergo the investigation, treatment, or operative procedure _________, ordered by or to be performed by Dr ________. The nature and anticipated effect of what is proposed including the significant risks and alternatives available have been explained to me. I am satisfied with these explanations and I have understood them. I also consent to such additional or alternative investigations, treatments or operative procedures as in the opinion of Dr _______ are immediately necessary. I further agree that in his or her discretion, the physician named above may make use of the assistance of other surgeons, physicians and hospital medical staff and may permit them to order or perform all or part of the investigation, treatment, or operative procedure, and they shall have the same discretion in my investigation and treatment as Doctor _____. Signature ______________ Date ____________ Witness ______________

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Consent: A signature is not enough

Basic principle

“ Every human being of adult years and sound mind has the right to determine what shall be done with his / her own body ”

Judge Cardozo, 1914

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Informed Consent

• Professional disclosure standard (before)

• Reasonable patient standard (after)

• what a reasonable person in the patient’s position would want to know before consenting Supreme Court of Canada (1980)

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Informed Consent

• Consent must be voluntary

• Patient must have the capacity to consent

• Patient must be properly informed prior to giving consent

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Elements of Consent – Basic Principle

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What is Informed Consent?

PUT YOURSELF IN THE PATIENT’S SHOES !

1. Diagnosis 2. Proposed treatment 3. Chances of success 4. Risks (material and

special) 5. Alternative treatment 6. Consequences of

non treatment 7. Answer any questions

• You advise the patient of this and then describe the risks as:

• bleeding from the insertion site

• damage to the vessel

• blood clots-stroke and MI

• risk from any anti clotting medication

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In This Case

• You advise the patient of this and then describe the risks as:

• arrhythmias

• kidney damage (from dye)

• allergic reaction (from dye)

• infection

• restenosis

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In This Case

• Your patient says she understands, has no questions, and agrees to the procedure

• Have you obtained “informed consent”; or, to use my language, have you fulfilled your obligation to advise?

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In This Case

• Maybe not

• What's missing?

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In This Case

• Even if you do not offer it

• Even if you do not recommend it, as long as there is a reasonable body of physicians who do

• Even if it is not available in Alberta, as long as it is reasonably available elsewhere

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Alternative Treatment

• Extends to alternative methods of doing the procedure recommended

• i.e., in the case of a surgical repair of the aorta:

• cross clamp

• bypass machine

• Gott shunt

• i.e., in the case of a laparoscopic cholecystectomy:

• mini laparotomy with Hasson trocar

• Veress needle insertion

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Alternative Treatment

• Consider the quagmire in advising of alternatives involving procedures for which the technology is evolving and/or controversial:

• medical therapy

• bypass

• different types of stents

• chelation

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In This Case

• "infection"

• "weakness"

• "bleeding"

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Consequences

• Percentage is not usually necessary, but an order of magnitude assessment may be

• In your city

• In your institution

• In your personal experience

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Magnitude of Risk

• Balanced with the severity of the consequences

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Really Rare Risks

• All questions must be answered

• You may be responsible for ensuring patient understanding

• patient questions may reveal a lack of understanding

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Questions and Patient Understanding

• Anything is better than nothing

• Handwritten is better than dictated

• "discussion of r, b and a

no questions"

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Documentation

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Canadian Medical Protective Association

1. “Talk back” during the informed consent discussion

2. Engage the patient in a dialogue about the nature and scope of the investigation/treatment

3. Simple language

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Improving Informed Consent

END OF LIFE ISSUES IN CARDIOLOGY

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• Therapeutic privilege

• Paternalism

• Doctor knows best

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Dinosaur Concepts in Medical Decision Making

Do not resuscitate: Documentation

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Case Scenario #1

• 82 y.o. male

• admitted to the ICU of a hospital with CHF

• PHx CAD, chronic atrial fib., CHF, Melanoma

• 4 days later he became dyspneic and complained of back and chest pain

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Do Not Resuscitate

• Develops third degree heart block

• Results in cardiac arrest and was resuscitated

• MD discusses DNR with family agree

• No documentation of discussion

• On Call Team not informed

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DNR

• Develops recurrent episodes of cardiac arrhythmias

• MD no longer on call

• Pt resuscitated by the nursing staff and the EM physician who responded to the code

• The son complained to the College about the medical care and commenced a legal action

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DNR

• No notations in the chart that the MD discussed the family’s wishes with the nurses

• There was only verbal communication of the family's wishes to the MD

• MD did not write an order on the chart in a timely fashion

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DNR – Complaints Committee Decision

• The doctor will be required to attend the College to be cautioned regarding the importance of communicating with members of the health care team in a timely fashion the wishes of family members regarding further resuscitation...

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DNR – The College Decision

• The son commenced a legal action against the internist

• Allegations:

• disregarded the family’s wishes and subjected his father to repeated cardiac resuscitations

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DNR – Legal Action

• MD should have made a notation in the progress notes and in the order sheet that DNR was requested

• Clear communication with the on-call team

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Expert Opinion

• The MD did not meet the standard of care

• Without support, the Association settled the matter out of court

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DNR

• Do not resuscitate:

• Do you have clear consent?

Excuse me! The little box is making a funny noise and the little light is going in a straight line

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Case Scenario #2

• A 73 y.o. female with AMI

• Hx breast Ca and IDDM

• D/C CCU and re-infarcted

• Went into cardiogenic shock

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Do Not Resuscitate

• The attending physician discussed resuscitation with the family

• 12 of the 13 children agreed to DNR (one U.S. resident objected – a lawyer)

• The DNR order was placed on the chart

• Insulin was discontinued

• RNs stopped all BS

• Pt becomes comatose

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DNR

• BS checked = 32

• Insulin was restarted and the patient regained consciousness

• Died a few days later

• The family made a complaint to the College and commenced a legal action against the hospital, the nurses and the physician

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DNR

• Is it reasonable to discontinue the patient's insulin and monitoring the patient's blood sugar based on the DNR order ?

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DNR

• The Committee determined that the doctor interpreted the meaning of DNR too widely

• Should have continued monitoring sugars and given insulin

• There was a difference between “Do not resuscitate” and withholding treatment

• Physician asked to attend at the College to be cautioned

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College Decision

• It was impossible to obtain an expert opinion supportive of the care provided by the physician

• A settlement was paid to the family of the deceased

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DNR: Legal Action

DNR ≠ DNT ≠ DNS

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Remember

• Try to reach an understanding as early as possible as to goals of therapy

Curative ? Supportive ? Palliative ?

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Suggestions

• Communicate with the family ( if consent )

• facts vs. feelings

• ask if the patient has any cultural or religious rituals concerning death

• patient’s expressed wishes

• focus on goals, not intervention

• DOCUMENT

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Doing It Right

• “There is nothing more to do”

• “I wish there was something I could do to cure the illness. Let’s focus on what I can do to help”

• “Would you like us to do everything possible?”

• “How were you hoping we could help?”

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Consider The Words That You Use

• “to respect his wishes, we will stop the breathing machines and use medications to make his breathing more comfortable”

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"Stop The Machines"

• Clinicians mean ventilator, pressors, antibiotics

• withdrawal of care = withdrawal of supportive measure

• “institution of supportive measures” might be added, proactive and forward looking

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Using The Term "Withdrawal of Care"

• 82 y.o. female with chronic dementia has an large intracranial bleed

• Son has ‘power of attorney’ and wants full resuscitative measures

• 3 other siblings want comfort measures only

• On further questioning, son has power of attorney for property not personal care

WHAT DO YOU DO?

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When There is Conflict

• Consider consultants to assist with discussions

• Bring in ethics committee (mediation-negotiation)

• Consider the hospital policies

• Consider transferring the care and ending the doctor-patient relationship

In doubt, call CMPA

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Suggestions to Deal with an Impasse

• Medical DNR

• Physician autonomy or unilateral withdrawal of care

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Not Recommended

• In any situation involving significant conflict or threat, members are advised to contact the CMPA early

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Role of Contacting CMPA